J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist.

• Decision Date: 19 October 2010
• Docket Number: No. 09-16123,09-16123
• Citation: 626 F.3d 431
• Parties: J.W., a minor, by and through his parents J.E.W. and J.A.W., Plaintiff-Appellant, v. FRESNO UNIFIED SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

626 F.3d 431 J.W., a minor, by and through his parents J.E.W. and J.A.W., Plaintiff-Appellant, v. FRESNO UNIFIED SCHOOL DISTRICT, Defendant-Appellee. No. 09-16123. United States Court of Appeals, Ninth Circuit. Submitted Oct. 8, 2010.^* Filed Oct. 19, 2010.

Amy R. Levine, Dannis Woliver Kelley, San Francisco, CA, for the appellee.

Elaine M. Yama, Bennett & Sharpe, Inc., Fresno, CA, for the appellant.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:07-cv-01625-LJO-DLB.

Before: PROCTER HUG, JR., PAMELA ANN RYMER and N. RANDY SMITH, Circuit Judges.

ORDER

We affirm for the reasons stated by the district court in its published opinion at 611 F.Supp.2d 1097 (E.D.Cal.2009), attached as Appendix A.

AFFIRMED.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

J.W., a minor, by and through his parents J.E.W. and J.A.W., Plaintiff,

vs.

FRESNO UNIFIED SCHOOL DISTRICT, Defendant.

CASE NO. CV F 07-1625 LJO DLB

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT OF IDEA CLAIM (Docs. 91, 105)

Introduction

By amended motion, filed on February 26, 2009, plaintiff J.W., by and through his parents J.E.W. and J.A.W. ("Student"), moves for summary judgement on his Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., claim against defendant Fresno Unified School District ("District"). Student challenges an August 14, 2007 decision made by Administrative Law Judge ("ALJ") Suzanne Brown, Office of Administrative Hearings, Special Education Division, State of California. Student argues, inter alia, that the ALJ erred to decide that District provided Student with a free appropriate public education ("FAPE"), as required by the IDEA, for the time period between September 1, 2003 through September 1, 2006. Student claims that District committed procedural and substantive violations of the IDEA. For the following reasons, this Court finds that the ALJ did not err in her decision, and DENIES in full Student's summary judgement motion.

Statutory Framework

IDEA

"The IDEA is a comprehensive educational scheme, conferring on disabled students a substantive right to public education." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir.1992) (citing Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). The IDEA ensures that "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). According to the IDEA, a FAPE is

special education and services that—(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the school standards of the State educational agency; (C) include an appropriate preschool, elementary school or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(9). To provide a FAPE in compliance with the IDEA, a state educational agency receiving federal funds must evaluate a student, determine whether that student is eligible for special education and services, conduct and implement an IEP, and determine an appropriate educational placement of the student. 20 U.S.C. § 1414.

Student's FAPE must be "tailored to the unique needs of the handicapped child by means of an 'individualized educational program' (IEP)." Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (" Rowley ") (citing 20 U.S.C. § 1401(18)). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child, consists of a written document containing

(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriated objective basis, whether instructional objectives are being achieved.

20 U.S.C. § 1401(19). Local or regional educational agencies must review, and where appropriate revise, each child's IEP at least annually. 20 U.S.C. §§ 1414(a)(5), 1413(a)(11). In addition, "[p]arental involvement is a central feature of the IDEA." Hoeft, 967 F.2d at 1300. "Parents participate along with teachers and school district representatives in the process of determining what constitutes a 'free appropriate education' for each disabled child." Id.

Violations of the IDEA may arise in two situations. First, a school district, in creating and implementing the IEP, can run afoul of the Act's procedural requirements. Rowley, 458 U.S. 176, 102 S.Ct. 3034. Second, a school district can be liable for a substantive violation by drafting an IEP that is not reasonably calculated to enable the child to receive educational benefits. Id. Through a FAPE, "the door of public education must be opened for a disabled child in a 'meaningful' way." Id. at 192, 102 S.Ct. 3034. District must provide Studenta FAPE that is "appropriately designed and implemented so as to convey" Student with a "meaningful" benefit. Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir.1999). Student alleges that District violated the IDEA's both procedurally and substantively, in a number of ways.

State and Federal Regulations

Both state statutes and federal regulations supplement IDEA's procedural and substantive requirements. The California Education Code contains legislative findings and declarations regarding children who are deaf or heard of hearing ("DHH"). According to the California Education Code, deafness is a low-inclined disability, making up less than 1 percent of the total statewide enrollment for kindergarten through 12th grade, and requires "highly specialized services, equipment and materials." Cal. Ed.Code §§ 56000.5(a)(1), (2). Cal. Ed.Code § 56000.5(b)(1) provides:

Deafness involves the most basic human needs—the ability to communicate with other human beings. Many hard-of-hearing and deaf children use an appropriate communication mode, sign language, which may be their primary language, while others express and receive language orally and aurally, with or without visual signs or cues ... It is essential for the well-being and growth of hard of hearing and deaf children that educational programs recognize the unique nature of deafness to ensure that all hard-of-hearing and deaf children have appropriate, ongoing, and fully accessible educational opportunities.

"It is essential" that DHH children, "like all children, have an education in which their unique communication mode is respected, utilized, and developed to an appropriate level of proficiency." Cal. Ed.Code § 56000.5(b)(2). DHH students must "have an education in which special education teachers, psychologists, speech therapists, assessors, administrators, and other special education personnel understand the unique nature of deafness and are specifically trained to work with hard-of-hearing and deaf pupils." Cal. Ed.Code § 56000.5(b)(3). Each DHH student should be placed in the "least restrictive environment," taking into consideration that DHH students should have a "sufficient number of language mode peers which whom they can communicate and who are of the same, or approximately the same, age and ability level," that parents "are involved in determining the extent, content and purpose" of the educational program, and DHH students "have programs in which they have direction and appropriate access to all components of the educational process, including, but not limited to recess, lunch, and extracurricular and athletic activities." Cal. Ed.Code §§ 56000.5(b)(4), (5), (7), and (9).

As to DHH students, federal regulations also address equipment. Each public agency must ensure that hearing aides worn in school by children with hearing impairments are functioning properly. 34 C.F.R. § 300.12; 34 C.F.R. § 300.303. Effective October 13, 2006, each public agency must ensure that the external components of surgically implanted medical devices are functioning properly. 34 C.F.R. § 300.113. However, a public agency is not responsible for post-surgical maintenance, programming, or replacement of a medical device that has been surgically implanted (or of an external component of a surgically implanted medical device). 34 C.F.R. § 300.113.

Against this background, the Court turns to the facts and proceedings in this case.

BACKGROUND ¹

Factual History

At all times relevant, Student was a District resident. Student was diagnosed with severe profound hearing loss in both ears at the age of 15 months. Accordingly, Student is eligible for special education under the IDEA as a DHH student.

Early Education

At age 15 months, District conducted an initial assessment of Student. Based on the assessment, District staff invited Student's parents to observe the aural/oral program for DHH students at Alice Birney Elementary School ("Birney") and a sign language program at Norseman Elementary School. When Student was two years old, Student's parents chose for Student an oral method of communication and an oral education. Accordingly, Student was enrolled in Birney's pre-kindergarten DHH program.

When Student began the program at Birney, he wore a hearing aid in each ear. Student's parents learned about cochlear implants through Student's preschool teacher at Birney, who attended doctor appointment with Student's parents and discussed cochlear...