R.P. v. Prescott Unified Sch. Dist.
| Decision Date | 04 February 2011 |
| Docket Number | 09–16786.,Nos. 09–15651,s. 09–15651 |
| Citation | 631 F.3d 1117 |
| Parties | R.P., husband on behalf of his minor son, C.P.; J.P., wife, on behalf of her minor son, C.P., Plaintiffs–Appellants,v.PRESCOTT UNIFIED SCHOOL DISTRICT, an Arizona School District; Kevin J. Kapp, Superintendent, Prescott Unified School District; John Does, I–V; Jane Does, I–V; Black and White Corporations, I–X, Defendants–Appellees.R.P., husband on behalf of his minor son, C.P.; J.P., wife, on behalf of her minor son, C.P., Plaintiffs–Appellants,v.Prescott Unified School District, an Arizona School District; Kevin J. Kapp, Superintendent, Prescott Unified School District; John Does, I–V; Jane Does, I–V; Black and White Corporations, I–X, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Gregory S. Fisher (argued), Birch Horton Bittner and Cherot, Anchorage, AK, and Gary L. Lassen, The Law Office of Gary L. Lassen, PLC, Phoenix, AZ, for the plaintiffs-appellants.Rachel Love (argued), Eileen Dennis GilBride and Georgia A. Staton, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, for the defendants-appellees.Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. 3:07–cv–08072–NVW.Before: ALEX KOZINSKI, Chief Judge, CONSUELO M. CALLAHAN, Circuit Judge and RICARDO S. MARTINEZ, District Judge.*
We review the award of attorney's fees to a prevailing school district under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
C.P. has autism. When he enrolled in elementary school, the school district created an individualized education program (IEP) for him. C.P. was placed in a special education class where he regularly met with speech and occupational therapists; he was also assigned a paraprofessional aide for one-on-one instruction. When he started school at age five, in 2003, C.P. didn't respond to his name, could barely speak, ran away from adults, showed no fear in unsafe situations, had a short attention span, and hit, pinched and spat. By 2006, at age seven, C.P. responded to his name, could say short phrases, had gotten fairly good at solving puzzles and was better able to communicate with adults, among other favorable developments. But he still was not toilet-trained, lacked the motor skills to draw a picture and remained at the pre-school level academically. Unhappy with C.P.'s progress, his parents filed an administrative complaint alleging that the school district violated the IDEA during the 2003–04, 2004–05 and 2005–06 school years by failing to provide him a free appropriate public education (FAPE).
The Administrative Law Judge ruled in favor of the school district, holding that C.P. wasn't denied a FAPE, and also that the parents' claims for the 2003–04 school year were untimely. See 20 U.S.C. § 1415(f)(3)(c). The parents appealed to district court under the IDEA, and added claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Due Process Clause.
The district court addressed the IDEA claim first. It adopted all of the ALJ's findings and concluded that the school district hadn't failed to provide C.P. with a FAPE. The court then ordered the parents to show cause why their non-IDEA claims shouldn't also be dismissed, since “the Complaint does not allege facts beyond the bare minimum to support the IDEA claim.” The parents sought leave to amend in order to allege new theories of relief, but the district court refused and dismissed the complaint. The court also found that the parents' action was without foundation and brought for an improper purpose, and so awarded the school district about $140,000 in attorney's fees and costs against the parents and their lawyer. The parents appeal.
1. IDEA Claim. “The IDEA provides federal funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures.” N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1207 (9th Cir.2008) (internal quotation marks omitted). Its primary goal is “to ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services.” Id. (quoting 20 U.S.C. § 1400(d)(1)(A)). A state must comply with the procedures set forth in the IDEA, among which is the development of an IEP that is “reasonably calculated to enable the child to receive educational benefits.” Id. (internal quotation marks omitted); see also Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200–04, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). We review de novo the district court's decision that the school district complied with the IDEA, see N.B., 541 F.3d at 1207, and review its factual determinations for clear error, see J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir.2010). We address the 2004–05 and 2005–06 school years only, as the parents waived their 2003–04 school year claims at oral argument.
The parents complain that the school district failed to include an autism expert on C.P.'s IEP team, which consisted of C.P.'s parents, a special education teacher, a school district representative, an occupational therapist, a speech/language therapist and a regular education teacher. But the IDEA doesn't require that the team include an expert. See 20 U.S.C. § 1414(d)(1)(B). The case the parents cite to support their claim that the IEP team must include “at least one teacher or other specialist with knowledge in the area of suspected disability” relies on a regulation that was in effect only until 1999, see 34 C.F.R. § 300.532(e), and thus predated C.P.'s time in the school district. See Seattle Sch. Dist., No.1 v. B.S., 82 F.3d 1493, 1499 (9th Cir.1996). C.P.'s IEP team was properly constituted under the regulations that governed the 2004–05 and 2005–06 school years. See 34 C.F.R. § 300.344(a); see also J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 458 (9th Cir.2010).
The parents also argue that the IEP didn't take C.P.'s individual needs into account, as the IDEA requires. See 20 U.S.C. § 1414(d)(3)(A)-(B). Rather, they allege, the school district “implemented the same program and same form of IEP year after year,” and C.P.'s “goals and objectives were simply increased and cut and pasted from prior IEPs.” It is true that school districts must develop IEPs tailored to each child's unique needs and reasonably calculated to provide educational benefit. J.L., 592 F.3d at 951 n. 10. When C.P. started school, the district retained a licensed pediatric psychologist to evaluate C.P.'s individual needs. The district reassessed those needs annually to reflect areas in which C.P. had made progress, and revised his IEP accordingly. The IEPs for the years at issue, both of which were signed by C.P.'s parents, reflect meaningful changes in goals and objectives. The record doesn't support the parents' objections. See J.W. ex rel. J.E.W., 626 F.3d 431, 445, 453.
The parents further complain that the school district failed to base its IEP on peer-reviewed research, as they argue 20 U.S.C. § 1414(d)(1)(A)(i)(IV) requires. The teachers would “pick and choose the techniques [they] liked,” rather than utilize “best practices” that have been demonstrated to be effective. The IDEA accords educators discretion to select from various methods for meeting the individualized needs of a student, provided those practices are reasonably calculated to provide him with educational benefit. See, e.g., Adams v. Oregon, 195 F.3d 1141, 1149–50 (9th Cir.1999); Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 861–62 (6th Cir.2004). The parents have introduced no evidence that the methods selected for C.P., including the Discrete Trial Training (DTT), Applied Behavior Analysis (ABA) and TEACCH methods, were inappropriate under the IDEA. In fact, the parents' own expert testified that the ABA and DTT methods “have been scientifically ruled as evidence based for children with autism,” and that it would be appropriate for teachers to pick and choose among methodologies, if the ones they “chose were proven effective.”
The parents allege that C.P. was denied a FAPE because “there was no objectively measured data collection,” since measurement of his IEP goals was based on teachers' subjective observations. But the district court correctly found that the IEPs contained “measurable annual goals, including academic and functional goals,” as the IDEA requires. See 20 U.S.C. § 1414(d)(1)(A)(i)(II). C.P.'s IEPs list goals such as “improve communication skills” and “increase self help skills,” with concrete descriptions of how C.P.'s progress would be measured. For example, the goal of “improved finemotor skills” could be met by performing “8/10 benchmarks as [m]easured by [t]herapists observations and records.” These benchmarks included: 1/4 times, C.P. “will copy a vertical line and a horizontal line”; 2/4 times, C.P. “will cut along a curved line to within 3/4 inch of the black line”; and when coloring, 2/4 times, C.P. will “stay with-in the lines of a small design, 30 then 40 percent.” The school district recorded the objectively measurable progress C.P. made, and updated his parents through the annual IEP meetings and quarterly progress reports.
Finally, the parents argue that the district court clearly erred in finding that “[C.P.] made meaningful progress toward each of his annual goals and objectives” and that “[t]here were no IEP goals in which [C.P.] made no progress or made less than expected progress.” The record supports the district court's findings. C.P. didn't progress at a constant, linear rate in all areas. But he did progress. When he began school, he could name...
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