Anchorage Sch. Dist. v. M.P.

• Decision Date: 19 July 2012
• Docket Number: No. 10–36065.,10–36065.
• Citation: 283 Ed. Law Rep. 653,2012 Daily Journal D.A.R. 9994,12 Cal. Daily Op. Serv. 8186,689 F.3d 1047
• Parties: ANCHORAGE SCHOOL DISTRICT, Plaintiff–Appellee, v. M.P., a student with a disability and M.P., his parent, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

689 F.3d 1047

283 Ed. Law Rep. 653

12 Cal. Daily Op. Serv. 8186

2012 Daily Journal D.A.R. 9994

ANCHORAGE SCHOOL DISTRICT, Plaintiff–Appellee,

v.M.P., a student with a disability and M.P., his parent, Defendants–Appellants.

No. 10–36065.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 11, 2011.

Filed July 19, 2012.

Bradley D. Owens (argued) and Howard S. Trickey, Jermain Dunnagan & Owens, P.C., Anchorage, AK, for the plaintiff-appellee.

Nicholas G. Miranda (argued), Morrison & Foerster LLP, Washington, D.C.; Sonja D. Kerr, Public Interest Law Center of Philadelphia, Philadelphia, PA, for the defendants-appellants.

Edward Daniel Robinson, Covington & Burling, LLP, San Francisco, CA, for the amicus curiae.

Appeal from the United States District Court for the District of Alaska, Timothy M. Burgess, District Judge, Presiding. D.C. No. 3:09–cv–00189–TMB.

Before: ALEX KOZINSKI, Chief Judge, RICHARD A. PAEZ, Circuit Judge, and LARRY A. BURNS, District Judge.^*

ORDER

The Council of Parent Attorneys and Advocates' request for publication is GRANTED. The memorandum disposition filed on November 1, 2011 is withdrawn and is replaced with an opinion filed concurrently with this order.

Appellee shall have 14 days from the date of the filing of this order within which to file a petition for rehearing or rehearing en banc.Ninth Circuit Rule 40–2.

OPINION

PAEZ, Circuit Judge:

M.P., through his parents, appeals the district court's ruling that the Anchorage School District (“ASD”) did not deny M.P. a free and appropriate public education (“FAPE”) because the failure to develop an updated Individualized Education Program (“IEP”) was mostly attributable to his “parents' litigious approach.” The Individuals with Disabilities Education Act (“IDEA”) mandates that public educational agencies review and revise annually an eligible child's IEP. 20 U.S.C. § 1414(d)(2)(A), (4)(A); 34 C.F.R. §§ 300.323(a), 300.324(b)(1). Neither the IDEA nor its implementing regulations condition this—or any other—duty expressly imposed on a state or local educational agency upon parental cooperation or acquiescence in the agency's preferred course of action. Penalizing M.P.'s parents—and consequently M.P.—for exercising the very rights conferred by the IDEA undermines the statute's fundamental purposes.

Although the district court relied on an improper basis when it declined to consider whether the ASD complied with the IDEA's substantive requirements, it is unnecessary to remand this issue. In light of the fully developed record, we conclude that the ASD deprived M.P. of a substantively adequate FAPE by relying on an outdated IEP to measure M.P.'s academic and functional performance and provide educational benefits to M.P. We further conclude that M.P.'s parents are entitled to reimbursement for private tutoring expenses incurred from January 1, 2008 to December 2008, and review of the propriety of private tutoring expenses incurred from January 1, 2009 through May 2009. Accordingly, we reverse in part and remand for further proceedings consistent with this opinion.

I.

M.P. is eligible for special education and related services because he has been diagnosed with high-functioning autism, pervasive development delay, and sensory integration dysfunction. M.P.'s parents have been actively involved in their son's education. The record reflects that they vigorously pursued the rights and remedies provided under the IDEA: they routinely reported their concerns regarding M.P.'s educational progress to the IEP team; they zealously advocated for amendments to M.P.'s IEP; they requested that the ASD provide supplemental services that extend beyond the traditional educational curriculum provided in the classroom; and they filed numerous due process complaints that predate this lawsuit. Their actions, however, have contributed to an increasingly strained relationship with the ASD.

This particular dispute arises out of an IEP adopted by the ASD in 2006 with the consent of M.P.'s parents. The IEP, which expired by its own terms a year later, established academic, occupational therapy, speech and language, and behavioral goals for M.P. during his second grade year at the ASD's Denali Montessori School (“Denali”). Pursuant to the 2006 IEP, M.P. received educational instruction in a regular classroom environment with special education support and services from a special education teacher, a teacher's assistant, an occupational therapist, and a speech and language pathologist.

M.P. completed the second grade curriculum and moved on to third grade for the 2007–08 academic year. There were attempts to revise the 2006 IEP, but the parties were unable to develop an updated IEP prior to its expiration on August 25, 2007. Approximately halfway through M.P.'s third grade year, the ASD prepared a revised IEP for M.P. M.P.'s parents did not attend the meeting during which the ASD formulated the draft IEP, although they were invited. Instead, they provided written comments and suggestions that they wanted incorporated into the proposed IEP. They also identified those portions of the IEP that should remain in “stay put,” see20 U.S.C. § 1415(j) (providing that during the pendency of judicial or administrative hearings, “the child shall remain in the then-current educational placement” unless the parents and the school district agree to an alternative placement), in accordance with a stipulation between M.P.'s parents and the ASD in the then-pending administrative proceeding, Anchorage Sch. Dist., DEED 07–20, 50 IDELR 146, 626 (Alaska IHO Jan. 8, 2008). Pursuant to the parties' stipulation, the hearing officer ordered the ASD to maintain M.P.'s writing instruction placement for the remainder of the 2006–07 school year. Id. at 626; see also Madeline P. v. Anchorage Sch. Dist., 265 P.3d 308, 313 (Alaska 2011). Relying on the “stay put” order, M.P.'s parents sought to maintain their son's then-current educational placement for writing instruction in the draft February 2008 IEP. However, after receiving the parents' response, the ASD unilaterally postponed any further efforts to develop an updated IEP until after a final decision had been rendered in the state court appeal of the hearing officer's split decision in the administrative proceeding, Anchorage Sch. Dist., DEED 07–20, 50 IDELR 146, 625 (Alaska IHO Jan. 8, 2008).

For the 2008–09 academic year, M.P.'s parents enrolled M.P. in Kincaid Elementary School (“Kincaid”), which was also part of the ASD. M.P.'s parents declined to meet with staff from Denali and Kincaid to discuss M.P.'s transition to the new school. At Kincaid, M.P. repeated the third grade at the request of his parents and with the consent of Kincaid's principal. Due to the continuing impasse over the February 2008 draft IEP, the Kincaid staff relied on the 2006 IEP but provided M.P. with third grade lessons and materials.

This lawsuit springs from an administrative due process complaint filed by M.P.'s parents in September 2008 regarding whether M.P. received educational benefits under the 2006 IEP for the 2008 calendar year. After an eight-day hearing involving twelve witnesses, the hearing officer concluded that the ASD failed to provide M.P. with a FAPE because he had regressed in two core subject areas—math and reading—and in several of his behavioral goals. The hearing officer therefore awarded full reimbursement for the math and reading tutoring expenses M.P.'s parents incurred from January 1, 2008 to December 2008. She also authorized M.P.'s parents to submit their bills from January 1, 2009 through May 2009 for review by the IEP team and the ASD to determine whether that tutoring assisted M.P. in progressing toward his 2006 IEP goals. She further ordered the IEP team to convene a meeting within twenty days to review M.P.'s goals and objectives and directed that M.P. be tested to determine his ability level in various academic subjects. Finally, the hearing officer ordered the parties to participate in mediation to resolve their communication problems.

In September 2009, the ASD sought judicial review of the hearing officer's decisionby filing this lawsuit. Both parties filed cross-motions for summary judgment. The district court granted the ASD's summary judgment motion in part and reversed the hearing officer's decision because it concluded that the ASD did not deny M.P. a FAPE. The district court concluded that, although the 2006 IEP was obsolete and outdated, the failure to develop an updated IEP was mostly attributable to M.P.'s parents' litigious approach. It also determined that M.P.'s parents were not entitled to reimbursement for the tutoring expenses they incurred on M.P.'s behalf. The court, however, affirmed the hearing officer's decision that the IEP team convene an IEP meeting, that M.P. be tested, and that the parties engage in mediation. The district court further determined that neither party was entitled to an award of attorney's fees or costs.

II.

Under the IDEA, federal courts accord considerably less deference to state administrative proceedings than they do in most instances of “judicial review of ... agency actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review.” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Administrative Hearings, 652 F.3d 999, 1005 (9th Cir.2011) (internal quotation marks omitted). The statute empowers the reviewing court to hear evidence that goes beyond the scope of the administrative record and, based on a preponderance of the evidence, “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). “Complete de novo review, however, is inappropriate.” Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 887 (9th Cir.2001). Administrative proceedings are accorded “due weight” and the reviewing court must, at least, “consider the findings carefully[....