Clyde K. v. Puyallup School Dist., No. 3

• Decision Date: 13 September 1994
• Docket Number: 93-35954,Nos. 93-35572,s. 93-35572
• Citation: 35 F.3d 1396
• Parties: 94 Ed. Law Rep. 707, 6 A.D.D. 1021 CLYDE K. and Sheila K., individually and as guardians for Ryan K., a minor, Plaintiffs-Appellants, v. PUYALLUP SCHOOL DISTRICT, NO. 3, Defendant-Appellee. CLYDE K.; Sheila K., Plaintiffs-Appellants, v. PUYALLUP SCHOOL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1396

35 F.3d 1396

94 Ed. Law Rep. 707, 6 A.D.D. 1021

CLYDE K. and Sheila K., individually and as guardians for

Ryan K., a minor, Plaintiffs-Appellants, v. PUYALLUP SCHOOL DISTRICT, NO. 3, Defendant-Appellee.

CLYDE K.; Sheila K., Plaintiffs-Appellants, v. PUYALLUP SCHOOL, Defendant-Appellee.

Nos. 93-35572, 93-35954.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 3, 1994.

Decided Sept. 13, 1994.

Charles D. Williams, Silverdale, WA, Neil R. Martinson Federal Way, WA, for plaintiffs-appellants.

Joni R. Kerr, Vandenberg & Johnson, Tacoma, WA, for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, KOZINSKI and FERNANDEZ, Circuit Judges.

KOZINSKI, Circuit Judge.

Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Sec. 1400 et seq., parents and school officials must try to reach agreement on the appropriate educational program for a disabled student. We consider what happens when they fail.

I

Ryan K. is a fifteen-year-old student with Tourette's Syndrome and Attention Deficit Hyperactivity Disorder (ADHD). Prior to the events giving rise to this litigation, Ryan received special education services while enrolled in mainstream schools in the Puyallup School District. Between mid-January and mid-March 1992, Ryan's behavioral problems at Ballou Junior High School escalated dramatically. He frequently disrupted class by taunting other students with name-calling and profanity, insulting teachers with vulgar comments, directing sexually-explicit remarks at female students, refusing to follow directions, and kicking and hitting classroom furniture. In addition, Ryan was involved in several violent confrontations. On January 27, he received a one-day suspension for punching another student in the face. On February 10, he received a second suspension for pushing another student's head into a door. Finally, on March 12, Ryan was removed from school pursuant to an emergency expulsion order after he assaulted a school staff member. ¹

Ryan's parents, Clyde and Sheila K., agreed with school officials that it was no longer safe for Ryan to remain at Ballou. Ryan's teachers and school administrators met shortly after his expulsion to discuss available alternatives. They suggested placing Ryan temporarily in an off-campus, self-contained program called Students Temporarily Away from Regular School (STARS), where Ryan would be in a more structured environment and receive more individualized attention. On March 17, 1992, the school notified Ryan's parents of its recommendation that Ryan be placed in STARS on an interim basis until he could be safely reintegrated into regular school programs.

Though Ryan's parents initially agreed with the school's proposed change of placement, they subsequently had second thoughts. On March 27, 1992, they requested a due process hearing under Wash.Admin.Code Sec. 392-171-531; on April 6, they formally rejected placement at STARS until a new Individualized Education Program (IEP) had been drafted. After efforts to draft a new IEP broke down, Ryan's parents insisted that he return to Ballou for the remainder of the school year. Over the summer, a ten-day due process hearing was held pursuant to 20 U.S.C. Sec. 1415(b)(2). The administrative law judge issued her ruling on September 14, 1992, concluding that the school fully complied with the IDEA. The parents appealed to the district court, which, after hearing additional testimony and reviewing the record of the administrative proceedings, affirmed the ALJ's decision in all material respects on March 23, 1993. ²

II

As a preliminary matter, the parties disagree over who should have borne the burden of proof in the district court. The school clearly had the burden of proving at the administrative hearing that it complied with the IDEA. Ryan's parents contend the burden of proof remained on the school in the district court as well, even though they were the ones appealing the administrative ruling. Generally, the party challenging an agency's decision bears the burden of proof. Whether the IDEA calls for an exception to this general principle has yet to be decided in this circuit.

The parents rely on Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir.1993), which held that the burden of proof remains on the school even if the school prevails at the administrative hearing. The court in Oberti stated that placing the burden of proof on the school is essential to ensure that parents' rights under the IDEA aren't undermined. Id. at 1219. We note, however, that merely because a statute confers substantive rights on a favored group does not mean the group is also entitled to receive every procedural advantage. Absent clear statutory language to the contrary, procedural questions are resolved by neutral principles that are independent of any particular statute's substantive policy objectives. Allocation of the burden of proof has long been governed by the rule that the party bringing the lawsuit must persuade the court to grant the requested relief. Because we find nothing in the IDEA suggesting that a contrary standard should apply here, we join the substantial majority of the circuits that have addressed this issue by placing the burden of proof on the party challenging the administrative ruling. See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir.1990); Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.1988); Spielberg v. Henrico County Pub. Sch., 853 F.2d 256, 258 n. 2 (4th Cir.1988).

III

Ryan's parents allege various procedural violations of the IDEA. We address each of these in turn.

A. On March 11, 1992, after Ryan had been suspended twice for assaulting other students, the school hired an aide to observe Ryan's behavior over a three-day period. The aide was hired at the urging of Ryan's doctors, who suggested that a first-hand report on his behavioral problems would be helpful in evaluating appropriate responses. Ryan's parents claim the school violated 34 C.F.R. Sec. 300.504(a) because it failed to give them written notice before hiring the aide.

The parents contend that hiring the aide constituted a change of Ryan's educational program, thus triggering the prior notice requirement of section 300.504(a). We agree with the district court that hiring the aide did not change Ryan's educational program. The aide merely observed Ryan's behavior; he didn't provide educational services or any other type of assistance. As a result, prior written notice was not required. See Doe v. Maher, 793 F.2d 1470, 1487 (9th Cir.1986), aff'd sub nom. Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).

B. In the wake of Ryan's emergency expulsion on March 12, school officials met to consider their options. ³ Ryan's multi-disciplinary team concluded that his increasingly aggressive behavior posed a clear danger to others at the school and was significantly disrupting the educational process for other students. The team reviewed Ryan's current IEP--which had taken effect in October 1991 and remained valid through the end of the school year--and concluded that its objectives could be met satisfactorily at STARS. On March 17, the school sent Ryan's parents a Notice of Proposed Placement Change, suggesting that Ryan attend STARS on a temporary basis while the parents and school officials developed a plan to reintegrate him into a mainstream setting. Ryan's parents allege that the school violated IDEA procedural requirements by failing to draft a new IEP before attempting to move Ryan to STARS.

We reject this contention. The district court found that Ryan's parents initially agreed with the school's recommended placement, including the determination that Ryan's current IEP could be implemented at STARS. Though Ryan's parents vigorously contend they never consented to this change of placement, we cannot conclude, after reviewing the record, that the district court's contrary finding is clearly erroneous. Since the primary goals and objectives of Ryan's current IEP could be achieved in the proposed placement, the school was not obligated to draft a new IEP prior to making its recommendation. See Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1042 (5th Cir.1989). ⁴

C. After preparations had been made for Ryan's arrival at STARS, Ryan's parents informed the school they wouldn't let him attend until a new IEP was drafted. Though school officials continued to believe Ryan's current IEP could be implemented satisfactorily at STARS, they agreed to work with the parents in drafting a new one. Ryan's parents contend the school violated the IDEA when it failed to bring teachers from Ballou to the IEP meetings.

The record reveals that the school complied with its obligations under the IDEA. Under 34 C.F.R. Sec. 300.344(a)(2), Ryan's teacher had to attend the meetings. The school saw to this by having a teacher and a behavioral specialist from STARS attend the IEP meeting on May 1. Ryan's parents claim this didn't suffice because Ryan's teachers were those from Ballou, not those from STARS. By May 1, however, Ryan hadn't attended Ballou for 45 days; in accordance with the earlier agreement reached between the school and Ryan's parents, he had been removed from Ballou and enrolled in the STARS program. Thus, as the district court found, the school complied with section 300.344 by having teachers from STARS attend the IEP meeting. See 34 C.F.R. Sec. 300.344, note 1(b) (noting that teacher required to be present at meeting can be either teacher from student's current placement, or teacher from student's future placement). ⁵

IV

We turn next to the alleged substantive violations of the IDEA.

A. Ryan's parents claim the district court erred when it held that STARS was the "stay-put" placement under 20 U.S.C. Sec. 1415(e)(3), which provides that during the pendency of any proceedings under the IDEA, "the child shall remain in the then...