L.B. v. Nebo School Dist., No. 2:00CV889K.

CourtU.S. District Court — District of Utah
Writing for the CourtKimball
Citation214 F.Supp.2d 1172
PartiesL.B. and J.B., on behalf of K.B., Plaintiffs, v. NEBO SCHOOL DISTRICT, Nebo Board of Education, Collin Allan, Utah State Office of Education, Steven O. Laing, and Mae Taylor, Defendants.
Docket NumberNo. 2:00CV889K.
Decision Date30 July 2002
214 F.Supp.2d 1172
L.B. and J.B., on behalf of K.B., Plaintiffs,
v.
NEBO SCHOOL DISTRICT, Nebo Board of Education, Collin Allan, Utah State Office of Education, Steven O. Laing, and Mae Taylor, Defendants.
No. 2:00CV889K.
United States District Court, D. Utah, Central Division.
July 30, 2002.

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Mark J. Griffin, Woodbury & Kesler, Salt Lake City, UT, Gary S. Mayerson, New York, NY, for Plaintiffs.

Peggy E. Stone, Alain C. Balmanno, Utah Attorney General's Office, Litigation Unit, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER

KIMBALL, District Judge.


This matter is before the court on Plaintiffs' Motion for Modified De Novo Review and Summary Judgment, and Defendants' Motion for Summary Judgment. The court heard oral argument on these motions on April 30, 2002. At the hearing, Plaintiffs were represented by Gary Mayerson and Mark Griffin, and Defendants were represented by Alain Balmanno and Peggy E. Stone. Having fully considered the motion, memoranda, and materials submitted by the parties, the administrative record from the due process hearing, and the facts and law relevant to these motions, the court enters the following Order.

BACKGROUND

L.B. and J.B. are the parents of K.B., who was born October 2, 1994. Plaintiffs reside in the Nebo School District. K.B. was diagnosed with an autistic spectrum disorder on May 28, 1997. On that date, K.B. was enrolled in a private preschool and she was referred to the Nebo School District ("the district") for evaluation and special education services. In October 1997, the district determined that K.B. was eligible to receive special education services.

On October 2, 1997, an Individualized Education Program ("IEP") was prepared for K.B., but it was not complete because the only services requested by plaintiffs were occupational therapy and speech and language therapy. The Nebo School District began providing K.B. with the requested therapy. For health reasons, K.B. was placed in home instruction during the winter.

On December 2, 1998, another IEP was prepared for K.B. The proposed services included placement at the district's Park View Special Education Preschool ("special education preschool"), speech therapy, occupational therapy, and one-on-one instructional therapy. The district's special education preschool combines typically-developing children along with disabled children. Plaintiffs agreed with the goals of the IEP, but did not agree with the placement a the district's special education preschool. Plaintiffs did not sign the IEP.

On January 27, 1999, plaintiffs notified the Nebo School District of their intent to file for a due process hearing and requested an independent educational evaluation of K.B. In March and April 1999, K.B. received additional testing.

On May 5, 1999, an IEP team convened to discuss K.B.'s IEP and placement for the 1999-2000 school year. The proposed services again included placement at the

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district's special education preschool, speech therapy, occupational therapy, one-on-one instructional therapy, and attendance at the summer preschool program and one-on-one instructional therapy during the summer. Plaintiffs again agreed with the goals but not with the placement. Plaintiffs did not sign the IEP. On August 19, 1999, another meeting was held, at which the district offered alternatives to plaintiffs, including a preschool class comprised of half typically-developing children or including children from K.B.'s neighborhood. Plaintiffs did not agree with these alternatives.

Throughout this time, K.B. continued to attend her private preschool with typically developing children. She attended the preschool with a shadow aide, who was present to assist K.B. when needed.

On December 7, 1999, L.B. and J.B. filed a request for a due process hearing pursuant to the Individuals with Disabilities in Education Act ("IDEA") to contest the services and placements the Nebo School District had offered to K.B. The IDEA allows parents to request a hearing when a school "refuses to ... change the identification, evaluation, or educational placement of the child ... or the provision of a free appropriate public education to the child." 20 U.S.C. § 1415(b)(3)(B). "Whenever a complaint ... has been received ... the parents involved in such a complaint shall have an opportunity for an impartial due process hearing ..." Id § 1415(f)(1).

Because the parents and the school district could not agree on a hearing officer from a list compiled by the State Board of Education, the State Board of Education appointed Dr. Ralph Haws as the administrative hearing officer. Due to personal reasons, Dr. Haws recused himself. The State Board of Education then appointed Dr. Steven K. Hirase as the hearing officer. Dr. Hirase is an administrator for the Murray School District.

The due process hearing was held over the course of five months, on March 1-3, 2000, May 15-17, 2000, and July 14, 2000. Seventeen witnesses testified at the hearing and six volumes of exhibits were entered into evidence. Dr. Hirase issued his Administrative Due Process Hearing Decision and Order on October 16, 2000 ("Decision and Order").

Dr. Hirase concluded that the Nebo School District's current proposed placement for K.B. at the Park View Special Education Preschool was an appropriate placement in the least restrictive environment and that K.B.'s 1998-1999 IEP and 1999-2000 IEP provided K.B. with free and appropriate public education ("FAPE") under the IDEA. Dr. Hirase reasoned that Nebo School District has the authority to determine the instructional methodology to implement a student's IEP based on the student's unique needs and K.B. did not require 40 hours of Applied Behavior Analysis ("ABA") therapy to provide her with FAPE.

Dr. Hirase further concluded that K.B.'s 1997-1998 IEP did not provide her with FAPE. This determination was based on the fact that the IEP was not complete and, although the parents did not request further services, the district should have dome a complete IEP. Dr. Hirase also concluded that K.B. was not provided a required twelve-month program of services during the 1997-1998 or 1998-1999 school years. However, Dr. Hirase found that Plaintiffs were not entitled to reimbursement for these failures. In making this decision, Dr. Hirase relied upon cases concluding that parents may waive their right to seek reimbursement if their request for a due process hearing is not timely made and if they unilaterally change their child's educational placement.

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Based upon his findings of fact and conclusions of law, Dr. Hirase ordered the following: (1) the Park View Special Education classroom was an appropriate placement for K.B. based upon the developed IEP; (2) the Nebo School District should convene an IEP team meeting to determine whether a portion of K.B.'s IEP could be implemented in a preschool with typically developing children with appropriate aids and supplementary services; and (3) any and all other relief requested by plaintiffs was denied.

In this case, plaintiffs have appealed Dr. Hirase's Decision and Order, claiming that K.B. was denied FAPE under the IDEA. Plaintiffs have also brought civil rights claims under 42 U.S.C. § 1983 for due process violations, state law breach of contract claims against the Nebo school district, and requested that the state's autism eligibility rules be stricken.

DISCUSSION
I. STANDARD OF REVIEW

In Murray v. Montrose County School District RE-1J, 51 F.3d 921, 927 (10th Cir.1995), the Tenth Circuit discussed the unique standard of review in an IDEA case as follows:

"Judicial review in IDEA cases differs substantially from judicial review of other agency actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir.1993), cert. denied, 513 U.S. 825, 115 S.Ct. 90, 130 L.Ed.2d 41 (1994). The IDEA specifically requires a district court reviewing a challenge under the IDEA to "receive the records of the administrative proceedings, ... hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence," grant any appropriate relief. 20 U.S.C. § 1415(e)(2). Thus, the court does not use the substantial evidence standard typically applied in the review of administrative agency decisions, "but instead must decide independently whether the requirements of the IDEA are met." Board of Educ. v. Illinois State Bd., 41 F.3d 1162, 1167 (7th Cir.1994).

However, "[t]he fact that § 1415(e) requires that the reviewing court `receive the records of the [state] administrative proceedings' carries with it the implied requirement that due weight shall be given to these proceedings." Rowley, 458 U.S. at 206, 102 S.Ct. at 3051 (quoting 20 U.S.C. § 1415(e)(2)). The district court must therefore independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the evidence, while giving "due weight" to the administrative proceedings below. This has been described as a "modified de novo review," Doe v. Board of Educ., 9 F.3d 455, 458 (6th Cir.1993), cert. denied, 511 U.S. 1108, 114 S.Ct. 2104, 128 L.Ed.2d 665 (1994), or as "involved oversight." Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087 (1st Cir.1993).

The parties dispute the proper way to apply the "due weight" standard set forth in Murray, specifically with respect to the degree of deference this court should give the hearing officer's findings of fact. The parties' dispute arises because the Tenth Circuit noted that it had previously found that a court need not assume deference to a hearing...

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4 practice notes
  • J.P. ex rel. Popson v. West Clark Community School, No. IP 01-1745-C M/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 19, 2002
    ...Department of Education (unreported administrative opinion currently on appeal in a federal district court); L.B. v. Nebo School Dist., 214 F.Supp.2d 1172 (D.Utah. July 2002); Renner v. Board of Educ., 185 F.3d 635, 645 (6th Cir.1999); Adams v. State of Oregon, 195 F.3d 1141, 1150 (9th Cir.......
  • J.P. ex rel. Popson v. West Clark Community Schools, Cause No. IP01-1745-C-M/S (S.D. Ind. 11/19/2002), Cause No. IP01-1745-C-M/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 19, 2002
    ...of Education (unreported administrative opinion currently on appeal in a federal district court); L.B. v. Nebo School Dist., 214 F. Supp.2d 1172 (D.Utah. July 2002); Renner v. Board of Educ., 185 F.3d 635, 645 (6th Cir. 1999); Adams v. State of Oregon, 195 F.3d 1141, 1150 (9th Cir. 1999); D......
  • Deal ex rel. Deal v. Hamilton County Dept. of Educ., No. 1:01-CV-295.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • March 4, 2003
    ...(6th Cir.1984); J.P. ex. rel. Popson v. West Clark Community Schools, 230 F.Supp.2d 910, 941 (S.D.Ind. 2002); L.B. v. Nebo School Dist, 214 F.Supp.2d 1172, 1188 (D.Utah 2002); Matta v. Bd. of Educ.-Indian Hill ex. Vil. Schools, 731 F.Supp. 253, 255 (S.D.Ohio 1990). While it is certainly rec......
  • L.B. ex rel. K.B. v. Nebo School Dist., No. 02-4169.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 11, 2004
    ...United States Court of Appeals, Tenth Circuit. August 11, 2004. Appeal from the United States District Court for the District of Utah, 214 F.Supp.2d 1172, Dale A. Kimball, Page 967 COPYRIGHT MATERIAL OMITTED Page 968 Gary S. Mayerson, Mayerson & Associates, New York, NY, for Plaintiffs-Appe......
4 cases
  • J.P. ex rel. Popson v. West Clark Community School, No. IP 01-1745-C M/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 19, 2002
    ...Department of Education (unreported administrative opinion currently on appeal in a federal district court); L.B. v. Nebo School Dist., 214 F.Supp.2d 1172 (D.Utah. July 2002); Renner v. Board of Educ., 185 F.3d 635, 645 (6th Cir.1999); Adams v. State of Oregon, 195 F.3d 1141, 1150 (9th Cir.......
  • J.P. ex rel. Popson v. West Clark Community Schools, Cause No. IP01-1745-C-M/S (S.D. Ind. 11/19/2002), Cause No. IP01-1745-C-M/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 19, 2002
    ...of Education (unreported administrative opinion currently on appeal in a federal district court); L.B. v. Nebo School Dist., 214 F. Supp.2d 1172 (D.Utah. July 2002); Renner v. Board of Educ., 185 F.3d 635, 645 (6th Cir. 1999); Adams v. State of Oregon, 195 F.3d 1141, 1150 (9th Cir. 1999); D......
  • Deal ex rel. Deal v. Hamilton County Dept. of Educ., No. 1:01-CV-295.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • March 4, 2003
    ...(6th Cir.1984); J.P. ex. rel. Popson v. West Clark Community Schools, 230 F.Supp.2d 910, 941 (S.D.Ind. 2002); L.B. v. Nebo School Dist, 214 F.Supp.2d 1172, 1188 (D.Utah 2002); Matta v. Bd. of Educ.-Indian Hill ex. Vil. Schools, 731 F.Supp. 253, 255 (S.D.Ohio 1990). While it is certainly rec......
  • L.B. ex rel. K.B. v. Nebo School Dist., No. 02-4169.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 11, 2004
    ...United States Court of Appeals, Tenth Circuit. August 11, 2004. Appeal from the United States District Court for the District of Utah, 214 F.Supp.2d 1172, Dale A. Kimball, Page 967 COPYRIGHT MATERIAL OMITTED Page 968 Gary S. Mayerson, Mayerson & Associates, New York, NY, for Plaintiffs-Appe......

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