Capistrano Unified School Dist. v. Wartenberg By and Through Wartenberg

• Decision Date: 05 July 1995
• Docket Number: 92-56312,Nos. 92-56119,s. 92-56119
• Citation: 59 F.3d 884
• Parties: 101 Ed. Law Rep. 640, 11 A.D.D. 1050, 95 Cal. Daily Op. Serv. 5136, 95 Daily Journal D.A.R. 8852 CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant, v. Jeremy WARTENBERG, By and Through His Parents, Wayne & Charlene WARTENBERG, in Their Individual Capacity and on Behalf of Jeremy Wartenberg; California Department of Education; California Superintendent of Public Instruction, Defendants-Appellees. CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Counter-Defendant-Appellant, v. Jeremy WARTENBERG, By and Through His Parents, Wayne & Charlene WARTENBERG, in Their Individual Capacity and on Behalf of Jeremy Wartenberg; California Department of Education; California Superintendent of Public Instruction; McGeorge School of Law; Marguerita Fa-Kaji, Defendants-Appellees, and Wayne Wartenberg; Charlene Wartenberg, Counter-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 884

59 F.3d 884

101 Ed. Law Rep. 640, 11 A.D.D. 1050,

95 Cal. Daily Op. Serv. 5136,

95 Daily Journal D.A.R. 8852

CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant, v. Jeremy WARTENBERG, By and Through His Parents, Wayne &

Charlene WARTENBERG, in Their Individual Capacity and on

Behalf of Jeremy Wartenberg; California Department of

Education; California Superintendent of Public Instruction,

Defendants-Appellees.

CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Counter-Defendant-Appellant, v. Jeremy WARTENBERG, By and Through His Parents, Wayne &

Charlene WARTENBERG, in Their Individual Capacity and on

Behalf of Jeremy Wartenberg; California Department of

Education; California Superintendent of Public Instruction;

McGeorge School of Law; Marguerita Fa-Kaji, Defendants-Appellees,

and

Wayne Wartenberg; Charlene Wartenberg, Counter-Defendants-Appellees.

Nos. 92-56119, 92-56312.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 2, 1994.

Decided July 5, 1995.

Jane Slenkovich (argued), and Eliza Walendzik (on the briefs), Law Offices of Jane E. Slenkovich, Saratoga, CA, for plaintiff-appellant.

Joan K. Honeycutt, Tustin, CA, for defendants-appellees.

Appeals from the United States District Court for the Central District of California.

Before BROWNING, FERGUSON and KLEINFELD, Circuit Judges.

Opinion by Judge KLEINFELD; Dissent by Judge FERGUSON.

KLEINFELD, Circuit Judge:

This case requires us to determine how a district court is supposed to review the decision of a hearing officer under the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq., and whether the services the school district offered in this case satisfy the Act's requirement that each child be afforded a "free appropriate public education." 20 U.S.C. Sec. 1401(a)(18).

I. FACTS

The dispute in this case is about whether the school district must pay the private school tuition which Jeremy Wartenberg's parents incurred for him and their attorneys' fees. Under the Individuals With Disabilities Education Act, the answer to the question depends on whether the reason Jeremy Wartenberg did poorly at school was misbehavior or a learning disability. If the decisions below finding that disability caused Jeremy's school failure are correct, then we must determine whether the program the public school developed for him was appropriate. The result turns largely on whether the district court applied the proper standard of review to the administrative determination. The facts were developed in a ten-day When these proceedings began, Jeremy Wartenberg was a 16-year-old boy. He had always done very badly in school. Various psychologists and counselors diagnosed him as having both "attention deficit disorder" and a "conduct disorder." He began receiving special educational services in second grade, based on what the school counselors called "visual motor integration" and "visual closure deficits."

long hearing before a hearing officer and are summarized below.

In seventh grade, his parents hospitalized Jeremy for several months at College Hospital because of his aggressive, violent behavioral problems, including violent and dangerous attacks on his mother and cruelty toward his baby brother, setting fires, shoplifting and lying. Jeremy had taken Ritalin ¹ since age four, but it had not helped. In a report following a psychiatric and mental status examination of Jeremy, the hospital psychiatrist noted that Jeremy's intelligence seemed to be average, but his "thought content revealed flight of ideas" and his "insight and judgment were poor."

At the hospital, Jeremy was given an electroencephalogram, and his results were abnormal. The neuropsychologist's impression was that his misbehavior was caused by a neurological abnormality, which might have resulted from a high fever and convulsion when Jeremy was an infant. The doctor concluded that:

Although clearly the patient does not exhibit any severe neurophysiological deficits, there does appear to be an underlying neurological/cognitive basis to his behavioral and emotional disturbances. This may be related to his early experience of roseola and febrile seizures at age two, which has contributed to a life long history of hyperactivity, difficulties with learning, and difficulties with controlling behavioral impulses. The data suggests a right anterior type of brain dysfunction and anterior frontal lobe functions seem to be at least mildly impaired. This data needs to be corroborated with further electrophysical studies. The patient certainly does require a very structured learning environment and medications need to be closely considered by the attending physician for both purposes of improving attention span and problem solving skills, and to rule out the existence of some sort of subclinical seizure problem.

(emphasis added).

During the same time period, Jeremy saw a physician specializing in adolescent medicine, who thought Jeremy's failings were caused both by the way he behaved and by "neurochemical contributors":

Jeremy's problems with distractibility, impulsiveness, and emotional lability are extreme and have both behavioral and neurochemical contributors.

I feel that a fulltime residential school setting at the present time would best fit Jeremy's needs.

(emphasis added).

On discharge from the hospital, Jeremy's treating psychologist wrote that, during his stay, Jeremy had "demonstrated extremely poor impulse control or ability to attend and concentrate." The doctor characterized Jeremy's hospital stay as "stormy," with "numerous angry outbursts, great difficulty following directions, labile moods fluctuating between periods of extreme anger and aggressiveness and periods of deep depression." The psychologist concluded that without an institutional placement, at least during the day, the boy would get no better:

It is clear from our assessment and his past history that this young man is presenting emotionally, intellectually and socially much younger than his chronological 14 years. At this point it appears that in order to avoid further significant morbidity and mortality as well as decrease the risk for future multiple acute hospitalizations that Jeremy will require a controlled, structured, intense day treatment, or residential placement. This type of environment (emphasis added).

will impact positively on his long term prognosis and offer him the opportunity to develop the behavioral controls, psychological mechanisms as well as educational and vocational training needed so that he can develop into an independently functioning adult. Without this structure this development will most likely fix at the present point and as has been indicated, this young man will continue to experience significant problems.

After his hospitalization, Jeremy returned to school and continued to do very badly. Despite the clear indications from all treating physicians that Jeremy needed a very structured educational environment, the school initially placed Jeremy in regular classes, where, by the next fall, he was failing all of his eighth-grade classes.

In response to his failure in the regular class setting, his junior high school gathered a team to develop an "individualized education program." The team determined that Jeremy had a "disorder in visual processing and attention deficit result[ing] in [a] significant discrepancy between achievement and ability in math." They authorized Jeremy to spend one period each day with a research specialist, who would provide specific assistance "in math, written language and organizational skills." Jeremy failed English and physical education, but was passed on from junior high school to the ninth grade, high school, anyway.

The move to Capistrano High School did not improve Jeremy's performance. He continued to do very badly in class, so the school crafted a new "individualized education program" that included an increase in the number of hours spent each day with a "resource specialist." It did no good. His ninth grade report card after first semester showed grades of D+, F, F, D, D-, and F. The school then created another special education program for him, which included four periods each day in a special education class and one period per day with a resource specialist, who would work on the continued discrepancy between Jeremy's ability and performance in math and written language. Despite the school's continued efforts, Jeremy failed all six classes.

After he flunked every course in his first year of high school, the school created yet another "individualized education program" for him. This time, the new program decreased the attention Jeremy was scheduled to receive. His time in the special educational setting was reduced to three periods per day and the description of his specific learning disability was modified to eliminate any reference to a deficit in math abilities.

The Wartenbergs thought this was a bad plan. They refused to consent to this decrease in assistance, and exercised their right under the controlling federal legislation to call for an "impartial due process hearing" to review the school district's decision. 20 U.S.C. Sec. 1415(b). They also took Jeremy out of the public high school, and put him at the Mardan Center of Educational Therapy. The Mardan Center is a private but state certified school which Jeremy's parents thought could help him more than the public school would under the proposed "individualized education program." This placement is the basis for the dispute in this case.

The school claims its proposed "individualized education program" was appropriate. Jeremy's parents claim that the "individualized education program" was inadequate, that the Mardan Center was appropriate, and that they are entitled to reimbursement of the tuition and fees they spent for the Mardan Center, and the attorneys' fees necessary to prevail in their claims. The "due process hearing" was a ten day...