ML v. Federal Way School Dist.

• Citation: 387 F.3d 1101
• Decision Date: 05 November 2004
• Docket Number: No. 02-35547.,02-35547.
• Parties: M.L., a minor; C.D., his parent; S.L., his parent, Petitioners-Appellants, v. FEDERAL WAY SCHOOL DISTRICT; Washington Superintendent of Public Instruction, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

387 F.3d 1101

M.L., a minor; C.D., his parent; S.L., his parent, Petitioners-Appellants, v. FEDERAL WAY SCHOOL DISTRICT; Washington Superintendent of Public Instruction, Respondents-Appellees.

No. 02-35547.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2003.

Filed November 5, 2004.

James E. Lobsenz, Carney Badley Spellman, P.S., Seattle, WA, for the petitioners-appellants.

Christopher L. Hirst, Preston Gates & Ellis LLP, James J. Dionne, Dionne & Rorick, Seattle, WA, for the respondents-appellees.

Before ALARCÓN, GOULD, and CLIFTON, Circuit Judges.

Opinion by Judge Alarcón; Concurrence by Judge Gould; Dissent by Judge Clifton

ALARCÓN, Senior Circuit Judge.

M.L., a minor, C.D., his mother, and S.L., his father, appeal from the order granting the motions for summary judgment filed by Appellees, the Federal Way School District ("FWSD") and the Washington Superintendent of Public Instruction.¹ They contend, inter alia, that the failure of the FWSD to include a regular education teacher on the team that prepared M.L.'s individualized education program ("IEP") rendered the IEP invalid.

I am persuaded that we must reverse the order granting summary judgment because the failure of the FWSD to include a regular education teacher on the IEP team significantly deviated from the procedural requirements of the Individuals with Disabilities Education Act ("IDEA") that at least one regular education teacher be included in the development of an IEP for a student with a disability pursuant to 20 U.S.C. § 1414(d)(1)(B)(ii). This critical structural defect in the constitution of the IEP team precludes us from considering whether the IEP developed without the inclusion of at least one regular education teacher was reasonably calculated to enable M.L. to receive a free and appropriate public education ("FAPE"). I believe we must vacate the judgment and remand with instructions that the district court enter an order directing the FWSD to select an IEP team that complies with the procedural requirements of the IDEA.

Judge Gould has filed a separate concurring opinion in which he joins me in concluding that the omission of a regular classroom teacher from M.L.'s IEP team was a procedural error and that we must reverse the district court's order granting a summary judgment. Judge Gould has applied the harmless error standard of review, instead of the structural defect analysis I have employed, in concluding that the judgment must be reversed.

In his dissent, Judge Clifton agrees with Judge Gould that the harmless error test must be applied in this matter, but concludes that the school district's error in failing to include a regular classroom teacher on the IEP team, as required by the IDEA, was harmless error, and did not result in the loss of an educational opportunity for M.L., or deny him a free appropriate public education.

I

Unless otherwise indicated, the facts are undisputed. M.L. was born on November 13, 1994. He suffers from autism, mental retardation, and macrocephaly.² As of February 2001, he was globally delayed across all developmental domains consistent with his cognitive level, and displayed significant behavioral problems. M.L. was almost completely nonverbal, had virtually no communication skills, was not toilet trained, and had a cognitive ability that placed him in the first percentile on the Battelle Developmental Inventory.³

Dr. Ilene Schwarz, an expert regarding educational practices for children with autism, indicated that M.L. might be able to perform tasks with a familiar service provider, but would be unable to demonstrate those skills when asked to do so in another environment. M.L. had made gains in physical therapy between 1997 and 2000. The progress reports from Puget Sound Therapy Services indicate, however, that as of August 2000, M.L. frequently had temper tantrums and displayed aggressive behavior such as hitting and pinching, which interfered with his performance in therapy. M.L.'s occupational therapist recommended that M.L. would benefit from a more structured environment.

M.L. was enrolled in the Tukwila Preschool at the Riverton Park United Methodist Church in the Tukwila School District in November 1997. He attended preschool four days per week for approximately two hours per day for three years. Except for a few months in his third year, M.L. was continuously assigned to Jodie Wicks's integrated preschool class until June 2000.⁴ The class followed the same routine each day, using the same songs and activities. Each year the class also included several of the same students and the same instructional assistants.

M.L.'s skills improved over the course of his three years in Ms. Wicks's preschool class. M.L. began to interact more frequently with other children and participated, to a limited extent, in classroom activities. M.L. was teased a few times while enrolled there. During the three years he was enrolled in Ms. Wicks's class, he was assigned a one-on-one instructional assistant who remained with him throughout the day.

M.L. displayed increasingly aggressive behavior during that time. This conduct was documented by many of his service providers. His level of aggression escalated when he was frustrated or given more challenging tasks. He would cry, whine, or bite and scratch his instructional assistant. He mouthed many objects and on at least one occasion bit another child. Lai Doo, M.L.'s in-home therapist, testified that as M.L.'s level of communication increased, his level of aggression decreased. However, Ms. Doo also stated that M.L.'s "level of aggression seemed to be a lot more severe than the others that she had seen."

Because M.L. is disabled, the Tukwila School District was required by 20 U.S.C. § 1414(d)(1)(A) to create an IEP each year that stated M.L.'s "present levels of educational performance," outlined the "special education and related services ... to be provided to M.L.," and set forth "measurable annual goals." On January 31, 2000, the Tukwila School District's IEP team prepared an IEP for M.L.'s initial placement for the 2000-2001 academic year ("Tukwila IEP"). Ms. Wicks, M.L.'s preschool teacher, was a member of the IEP team. The IEP provided that M.L. was to be enrolled in September 2000 in an integrated kindergarten class for 130 minutes, four times per week, and was to receive additional therapy and instructional services.

Prior to M.L.'s enrollment in an integrated kindergarten class in the Tukwila School District, M.L. and his family moved to the FWSD on or about July 30, 2000. M.L. was enrolled at the Mark Twain Elementary School in the FWSD. The FWSD implemented the Tukwila IEP for M.L. until it was due to expire on September 30, 2000. Accordingly, M.L. was placed in Sandy Ramsey's integrated kindergarten class in the Mark Twain Elementary School. Ms. Ramsey is certified as a regular and special education teacher.

At C.D.'s suggestion, Ms. Ramsey controlled M.L.'s behavior in class by letting him listen to his favorite music on his headphones. The FWSD hired a series of one-on-one instructional assistants to work with M.L. Each of them quit after working with him for one day.

C.D. attended class with M.L. during the five days that M.L. was enrolled at the Mark Twain Elementary School. On September 5, 2000, C.D. witnessed two boys teasing M.L. She discussed this incident with Ms. Ramsey and Pat Warden, Ms. Ramsey's classroom assistant. Ms. Ramsey responded that she "would make a note and make it a priority to keep observing — keep an eye on these children and a better eye on M.L. to see if anything continued to happen so she could address any incidents that might happen." On September 6, 2000, C.D. observed more children teasing M.L. at recess. She reported this conduct to Ms. Ramsey and Ms. Warden. C.D. later testified, however, that M.L. was "happy as a little lark" during recess.

On September 7, 2000, C.D. again observed children teasing M.L. at recess and during class time. She discussed this conduct with Ms. Ramsey. Ms. Ramsey told C.D. that she "had not witnessed any teasing of M.L. during class, but would continue to watch for it and intervene if necessary." Ms. Ramsey informed C.D. that "policies were in place regarding teasing and that she did not allow such behavior in her class."

C.D. witnessed additional teasing incidents on September 8 and September 11, 2000. She reported these events to Ms. Ramsey. Ms. Ramsey replied that "she would keep an eye on M.L. and would take care of it." Ms. Ramsey did not take any action regarding the teasing incidents. C.D. testified that there was no evidence that M.L. was actually affected by the teasing and that "because he had his headphones on most of the time he was being teased ... she didn't know if he even heard it."

On September 12, 2000, C.D. called Diane Niksich-Conn, the Vice-Principal of the Mark Twain Elementary School, to report a teasing incident that had occurred the previous day. Vice-Principal Niksich-Conn suggested that C.D. contact Ms. Ramsey. Ms. Niksich-Conn then contacted Ms. Ramsey and advised her to talk to C.D.

On September 13, 2000, Ms. Ramsey telephoned C.D. to discuss her complaint that M.L. had been teased on September 11, 2000. Ms. Ramsey informed C.D. that the teasing that took place on September 11, 2000 was the only incident that she had observed. Ms. Ramsey testified that during that conversation, she requested that C.D. give her an opportunity to stop the teasing of M.L. by other children before C.D. took the matter further. M.L. did not return to the Mark Twain Elementary School after September 11, 2000. C.D. did not speak with the FWSD administrator before removing her child from the school.

On or about September 17, 2000, the FWSD offered to place M.L. at the Wildwood Elementary School in a self-contained classroom⁵ taught by Teresa Thomas, a certified special education teacher with experience teaching autistic children....