Ashland School Dist. v. Parents of Student R.J.

• Decision Date: 06 October 2008
• Docket Number: Civil No. 07-3012-PA.
• Citation: 585 F.Supp.2d 1208
• Parties: ASHLAND SCHOOL DISTRICT, Plaintiff-Appellant, v. PARENTS OF STUDENT R.J., Defendants-Appellees.
• Court: U.S. District Court — District of Oregon

585 F.Supp.2d 1208

ASHLAND SCHOOL DISTRICT, Plaintiff-Appellant, v. PARENTS OF STUDENT R.J., Defendants-Appellees.

Civil No. 07-3012-PA.

United States District Court, D. Oregon.

October 6, 2008.

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Nancy J. Hungerford, Richard G. Cohn-Lee, The Hungerford Law Firm, LLP, Oregon City, OR, for Plaintiff-Appellant.

Mary E. Broadhurst, Mary E. Broadhurst, PC, Eugene, OR, for Defendants-Appellees.

OPINION AND ORDER (Sealed Case)

PANNER, District Judge.

Plaintiff Ashland School District (the "District") brings this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i). The nominal defendant is a teenage student who, for privacy reasons, will be referred to by the pseudonym "R.J."¹

On December 8, 2006, a state Administrative Law Judge ("ALJ") ruled that the District had failed to offer R.J. what the IDEA characterizes as a "Free Appropriate Public Education."

The ALJ concluded R.J.'s parents ("Parents") were legally justified in removing R.J. from the District and, at a later date, transporting her to a private behavioral modification facility in another state, which the parties refer to as "residential placement." The ALJ ordered the District to reimburse Parents for expenses they incurred to have R.J. "escorted" to that facility and the fees charged by the private company operating the facility. The ALJ declined to order reimbursement for costs associated with a prior residential placement. Parents did not appeal the latter determination.

The District appeals. While this litigation was pending, the court entered a "stay-put" order, which required the District to pay the costs of the facility where R.J. was housed, pending resolution of this litigation. That order was not a determination of the merits. For the reasons that follow, the District's appeal of the ALJ's decision is granted and the decision of the ALJ in favor of Parents is reversed.

Legal Standards

Parents contend the ALJ's decision is reviewable only for abuse of discretion. That is incorrect. See Forest Grove School Dist. v. T.A., 523 F.3d 1078 (9th Cir.2008) ("no case supports T.A.'s contention that we review the hearing officer's decision for abuse of discretion") (emphasis in original).²

Rather, the standard of review in IDEA actions has been characterized as modified de novo review. Katherine G. v. Kentfield School Dist., 261 F.Supp.2d 1159, 1167 (N.D.Cal.2003). See also Seattle School Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir.1996), abrogated in part on other grounds by Schaffer v. Weast, 546 U.S. 49, 56-58, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). The reviewing court makes an "independent decision[] based on the preponderance of the evidence." Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 205, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The court may thus decide questions of law and fact. The court is further authorized to "grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). This language confers "broad discretion" on the district court. Forest Grove, 523 F.3d at 1084. However, courts should not "substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206, 102 S.Ct. 3034.

Because the state is thought to have "specialized knowledge and experience," "due weight" is given to the ALJ's determinations, id. at 208, 102 S.Ct. 3034, with greater deference to findings that are "thorough and careful." Capistrano Unified School Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir.1995).

The School District, as the party challenging the administrative decision, bears the burden of persuasion. See Schaffer, 546 U.S. at 56-58, 126 S.Ct. 528; Ms. S. v. Vashon Island School Dist., 337 F.3d 1115, 1127 (9th Cir.2003) ("In the district court ... the burden of proof is on the party challenging the administrative ruling").³

Findings of Fact

After reviewing the record, I conclude that the ALJ's factual findings—though exhibiting considerable effort—omit or misstate some important facts. The ALJ also made some questionable cause-andeffect assumptions. Therefore, I have given due consideration to the ALJ's factual findings, but also independently evaluated the evidence and made my own factual findings and drawn my own conclusions when appropriate, as is permissible in an IDEA case. I have found the testimony by the District's witnesses in this case generally to be more credible than certain witnesses for Parents, especially those who were employed by (or consultants for) the private company that operates the two residential facilities.

Parents adopted R.J. when she was 4-1/2. Shy and withdrawn at first, R.J. eventually warmed to her new family. A voracious reader from an early age, R.J. attended a magnet school for gifted children. Mother⁴ reports R.J. was very bright, but also disorganized, easily distracted, and underachieving in school. "It was always a problem of handing in homework even when she did it." R.J.'s social skills also appeared less developed than some peers. Mother recalls R.J. was "always quick to make friends but had trouble keeping them," and seemed immature for her age.

In second grade, R.J. was diagnosed with the "inattentive" form of Attention Deficit/Hyperactivity Disorder ("ADHD" or "ADD"). R.J. was found eligible for special services under the IDEA. She was placed on Ritalin, but the medication had undesirable side effects. Mother describes R.J. as "zombie like" when taking Ritalin. Parents elected to discontinue Ritalin, and R.J. completed elementary and middle school without it.

In Fall 2001, the family relocated to Ashland, Oregon. Moving to a new state and school was difficult at first. In November 2001, the School District had R.J. evaluated by school psychologist Janell Walton. R.J. achieved average to above average scores on most tests of intelligence and functioning. She achieved "superior" scores in long term memory and knowledge of general factual information, and demonstrated an above average Verbal IQ and vocabulary. Areas of weakness included mathematical reasoning, shortterm memory, and concentration. A very low score on a copying exercise suggested some difficulty paying attention to details. R.J. also evidenced some difficulty in reading social cues and in sequencing events (determining what happened first, middle, and last).

Two seventh grade teachers completed a survey, offering their subjective impressions of R.J. On most issues, the teachers disagreed. One rated R.J. in the top ten percent of the class for intellectual functioning and noted no "clinically significant" problems. The other teacher rated R.J. in the bottom ten percent of the class intellectually, and noted "clinically significant" attention problems (which included being easily distracted, not keeping her desk clean and not completing assignments on time). Among the few points of agreement between the two teachers was that R.J. "like[d] to be alone," was not disruptive in class, and could easily be distracted.

The 2001 Walton evaluation concluded that R.J. had no specific learning disabilities or communication problems to warrant classifying her as having a disability. An "assessment of intellectual ability and academic achievement show commensurate scores." However, Walton concluded, R.J. "presents a profile suggestive of difficulty with the control of attention." Walton also noted R.J. previously had received a "medical diagnosis of an Attention Deficit Disorder." The District therefore concluded that R.J. was eligible for services under the IDEA. With Parent's approval, an Individualized Education Program ("IEP") was established for R.J.

The person preparing the IEP described R.J. as "a delightful girl," a view echoed by many of R.J.'s teachers and advisors throughout her school years. The IEP describes R.J.'s many strengths, and a few areas needing improvement. The 2001-02 IEP included, among other things, special emphasis on organizational skills, 30 minutes of counseling each week, and additional time to complete assignments and exams. She was to complete an agenda each day, track class assignments, and work on her homework in the Resource Center under the supervision of a special education teacher. The IEP also notes the school counselor was "in the process of putting together a group for girls focused toward cause and effect/sizing up social situations/ and social interactions" and that R.J. wished to participate in that group.

R.J. attended seventh and eighth grade at Ashland middle school, earning grades ranging from A's to C's. As was the pattern throughout her education, the grade R.J. earned in a class seemed to depend on her level of interest. She rarely had much difficulty understanding the material, but sometimes failed to turn in assignments. The ALJ attributed such failures to ADHD, reasoning R.J. must have forgotten she had homework or was unable to plan adequately. However, the record suggests R.J. usually knew she had assignments due, but preferred to engage in more pleasurable activities of her choosing.

In May 2003, R.J. was due to graduate from middle school. Mother felt R.J. was socially immature and "[c]ringes when she thinks about R.J. at the High School." Mother therefore had R.J. repeat eighth grade. During 2003-04, R.J. received acceptable (or better) grades, though she still had difficulty mastering geometry. Some teachers questioned whether she was utilizing her full potential, believing her capable of better work.

A report from a teacher, dated December 2003, opined that R.J. "knows exactly" what she's supposed to do. However, "if R.J. doesn't feel that something is important or entertaining, she won't do it until an adult insists." This teacher also opined that R.J. "learn[s] a lot through listening, and can pick up what we are doing quickly, but the instant she thinks she can...