A.M. ex rel. Marshall v. Monrovia Unified Sch. Dist.
| Decision Date | 15 December 2010 |
| Docket Number | Nos. 09-55478,Nos. 09-55169,s. 09-55169,s. 09-55478 |
| Citation | 627 F.3d 773 |
| Parties | A.M., a minor, by and through his parents David MARSHALL and Karla Marshall; David Marshall, on his own behalf; Karla Marshall, on her own behalf, Plaintiffs-Appellants, v. MONROVIA UNIFIED SCHOOL DISTRICT; West San Gabriel Special Education Local Planning Area, Erroneously Sued As West San Gabriel Valley Special Education Local Plan Area, Defendants-Appellees. A.M., a minor, by and through his parents David Marshall and Karla Marshall; David Marshall, on his own behalf; Karla Marshall, on her own behalf, Plaintiffs-Appellants, v. Monrovia Unified School District; West San Gabriel Special Education Local Planning Area, Erroneously Sued As West San Gabriel Valley Special Education Local Plan Area, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
N. Jane DuBovy and Mandy L. Favaloro, A2Z Educational Advocates, Pacific Palisades, CA, for the plaintiffs-appellants.
Jonathan J. Mott, Parker & Covert, Tustin, CA, for the defendants-appellees.
Keith L. Wurster, Baker & McKenzie, Palo Alto, CA, for amicus Council of Parent Attorneys and Advocates.
Appeal from the United States District Court for the Central District of California, Ronald S.W. Lew, Senior District Judge, Presiding. D.C. No. 2:07-cv-00243-RSWL-JTL.
Before: ALFRED T. GOODWIN and JOHNNIE B. RAWLINSON, Circuit Judges, and MARK W. BENNETT, District Judge.*
Opinion by Judge GOODWIN; Partial Concurrence and Partial Dissent by Judge BENNETT.
A.M. and his parents (collectively, "Plaintiffs") appeal a summary judgment for Monrovia Unified School District and West San Gabriel Special Education Local Planning Area (collectively, "Defendant") on Plaintiffs' action for violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415, and violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs also appeal an award of attorneys' fees to Defendant under the IDEA. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse in part.
A.M. was a young boy, approximately eleven years old at all relevant times, with cerebral palsy, seizure disorder, and global developmental delays. He was non-ambulatory and required assistance changing body positions. He had cortical blindness, meaning his eyes could see but his brain did not acknowledge what his eyes saw. Thus, A.M. did not always understand, retain, or make associations with what he saw. He could communicate only by responding to yes-or-no questions-a smile, a sound, or lifting his hand was a "yes"; a flat affect was a "no." However, A.M. was not consistent with these responses, so his service providers had difficulty determining whether a "yes" signal was actually an involuntary movement caused by the cerebral palsy.
In December 2002, A.M. enrolled in the California Virtual Academy ("CAVA"), a network of charter schools offering independent study at its students' homes. Although Plaintiffs live in Los Angeles County, A.M. enrolled in CAVA Kern County, which services students in any county that abuts Kern County. CAVA provided materials to A.M.'s father, who instructed A.M. and reported the results on CAVA's website. A general education teacher visited Plaintiffs' home three days per week for one and one-half hours per session. The teacher modified the curriculum by converting materials to yes-or-no questions and enlarging materials.
CAVA created a valid individualized educational program ("IEP") for A.M. in 2002. CAVA and Plaintiffs agreed on an independent study/home schooling placement with support from a resource specialist five times a week for one-hour sessions, occupational therapy once a week for a one-hour session, adapted physical education once a week for a one-hour session, and speech and language once a week for a one-hour session. CAVA and Plaintiffs held IEP meetings again in 2003 and 2004, but they were unable to agree on goals and objectives and A.M.'s parents refused to sign the IEP documents. A.M.'s placement continued as independent study/ home schooling.
On December 9, 2005, CAVA and Plaintiffs agreed on a new IEP that changed A.M.'s placement to a third-grade general-education classroom with appropriate supports. The IEP team found that A.M. had "marked improvement academically, socially, and physically," though his academic improvement was due to his service providers' increased ability over time to gauge A.M.'s yes/no response. His social improvement was based on observations of his interactions and communication through his smiles with other people, which indicated awareness of his surroundings. His physical improvement was based on observations that he could sit in his chair and focus. The IEP describedA.M.'s language proficiency as "age appropriate," which means that if a person spoke to A.M. like any other nine or ten-year-old, A.M. would have understood it completely, though he was nonverbal. The IEP was not based on any formal assessment of A.M.'s academic or cognitive abilities.
A.M. enrolled in Defendant school district because CAVA has no general-education classrooms and therefore could not implement the 2005 IEP. Plaintiffs submitted proof of residence and a copy of the 2005 IEP to Defendant on December 12, 2005. Gail Crotty reviewed A.M.'s IEP to determine his interim placement. Crotty has a master's degree in educational administration, credentials in adaptive physical education and learning handicaps, and certificates in resource special programs and crosscultural language and academic development. She has held numerous special-education-related positions and has worked with at least twenty students with disabilities comparable to A.M.'s.
Crotty was concerned that Defendant was being asked to implement an IEP that was never previously implemented and required a change in placement. She also was concerned that the placement was determined at the beginning of the IEP meeting, rather than after A.M.'s present levels of performance were discussed, and that the present levels of performance in the IEP document were unclear and referred to reports that were not attached. Some goals were not measurable, and other goals were on different levels. For example, one goal was to give a big smile when prompted by "give a big smile now," while another goal was to write a three paragraph report using the third grade curriculum. Crotty was concerned about whether A.M. could succeed if he went straight from home schooling to a general education classroom, since he was not used to being around other students.
Crotty scheduled an intake meeting for December 20, 2005, which was two days before the winter vacation. Plaintiffs and Defendant disagreed about an appropriate placement-Plaintiffs wanted a general-education classroom as provided in the 2005 IEP, whereas Defendant wanted to continue independent study/home schooling for a thirty-day period to assess A.M. Though Plaintiffs did not agree to Defendant's offer, A.M. continued in the independent study/home schooling placement with services beginning on January 9, 2006, which was the first day of the new semester.
Defendant scheduled an IEP meeting on February 9, 2006. Plaintiffs agreed to the February 9, 2006 meeting date, but cancelled three days before the meeting because A.M.'s father could not arrange child care for A.M. Plaintiffs requested an IEP meeting date in mid-March or April, but Defendant could not agree because of the thirty-day requirement. Defendant offered to allow A.M.'s mother or father to participate by telephone, or to allow Plaintiff's father to bring A.M. to the meeting as he had done in the past, but Plaintiffs refused these suggestions. Defendant held the meeting without Plaintiffs.
Defendant's IEP team determined that A.M. should be classified as a fourth-grader and placed in a special day class on a general-education campus. Because Defendant does not have an appropriate special day class, the IEP team recommended a referral to the Los Angeles County Office of Education for placement. Defendant offered an IEP consisting of a comprehensive assessment of A.M., physical therapy for two hours per week, occupational therapy for one-half hour per week, speech and language for one and one-half hours per week, adaptive physical education twice a week in half-hour sessions,placement in a special day class with a teacher credentialed in moderate-to-severe special education, a referral to California Children's Services, a referral to Los Angeles County Office of Education for placement in a special day class, and a one-to-one aide at the school site. This offer was sent to Plaintiffs, but they did not consent to it.
Defendant held a second IEP meeting on May 1, 2006. Plaintiffs' lawyer attended, though Plaintiffs did not attend. A Los Angeles County Office of Education representative attended, and the IEP team agreed to offer Plaintiffs a placement in a special day class at Encinitas School.
Plaintiffs and Defendant each requested a due-process hearing with the Office of Administrative Hearings ("OAH"). OAH consolidated the requests and ruled for Defendant. Plaintiffs filed a complaint in district court alleging a violation of the IDEA and a violation of Section 504. A.M. died while the action was pending. Defendants moved for summary judgment on both claims, and the district court granted the motion. The district court also awarded attorneys' fees to Defendant on the ground that A.M.'s death mooted the case and Plaintiffs should not have continued it after it became moot.
Plaintiffs argue that the district court erred by (A) failing to reverse the OAH ruling for Defendant on Plaintiffs' IDEA claim, (B) granting summary judgment to Defendant on Plaintiffs' Section 504 claim, and (C) awarding attorneys' fees to Defendant.
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