S. H. v. Mount Diablo Unified Sch. Dist., Case No. 16-cv-04308-JCS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJOSEPH C. SPERO Chief Magistrate Judge
PartiesS. H., et al., Plaintiffs, v. MOUNT DIABLO UNIFIED SCHOOL DISTRICT, Defendant.
Docket NumberCase No. 16-cv-04308-JCS
Decision Date03 July 2017

S. H., et al., Plaintiffs,

Case No. 16-cv-04308-JCS


July 3, 2017


Re: Dkt. Nos. 28, 29


In this action, Plaintiff S.H. seeks judicial review of an administrative decision of California's Office of Administrative Hearings ("OAH") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Presently before the Court are cross-motions for summary judgment by S.H. and the Mount Diablo Unified School District. A hearing on the motions was held on June 2, 2017. Following the hearing, the parties filed supplemental briefs addressing the question of what remedy the Court should award if it found that S.H. was entitled to summary judgment with respect to any of the alleged errors on the part of the OAH. For the reasons stated below, the Court GRANTS Plaintiff's Motion for Summary Judgment ("Plaintiff's Motion") and DENIES Defendant's Motion for Summary Judgment ("Defendant's Motion"). The parties have consented to the jurisdiction of the undersigned United States magistrate judge pursuant to 28 U.S.C. § 636(c).


This case involves challenges to an Individualized Educational Plan ("IEP") dated October 14, 2015 relating to the 2015-2016 school year. As of that date, S.H. was fifteen years old. AR 603-604. S.H. resides with his mother, Ms. Eleasha Partner ("Mother") within the geographical

Page 2

boundaries of Mt. Diablo Unified School District ("Mt. Diablo") and is eligible for special education under the category of speech and language impairment. AR 603. He has been eligible for special education since he was three years old. Id.

During the 2014-2015 school year, S.H. attended ninth grade at Las Lomas High School ("Las Lomas HS"), in the Acalanes Union High School District ("Acalanes"). AR 605, 607. When he started ninth grade at Las Lomas HS, S.H. was receiving services pursuant to an IEP developed on February 27, 2014, when he was in eighth grade. Id. Acalanes held an annual IEP team meeting on March 25, 2015, in the spring of S.H.'s ninth grade year. AR 607. The IEP developed in connection with that meeting ("the March 25, 2015 IEP") described S.H.'s levels of performance, set forth goals and proposed a transition plan. AR 609. It offered as accommodations "use of notes for tests/assignments when needed and appropriate; use of calculator when needed and appropriate; flexible seating on tests; extended time on class assignments/tests; instructions repeated/rephrased; preferential seating; prompting and refocusing; and speech to text as an option when applicable." AR 610. It also offered specialized academic instruction for 50 minutes, one time each school day, language and speech services for 40 minutes a week (individual and group boxes were checked), college awareness for 30 minutes a month and career awareness for 30 minutes a month. Id. Mother did not consent to the March 25, 2015 IEP because she did not believe it met S.H.'s needs and did not sign it. AR 610, 778.

In May 2015, S.H. was diagnosed with Autism Spectrum Disorder. AR 610. Around this time, Mother filed a due process complaint against Acalanes seeking an independent educational evaluation ("IEE") at public expense. Id. That complaint was settled in June 2015, with Acalanes agreeing to pay for an IEE. Id. Mother selected Dr. Elea Bernou to perform the IEE and scheduled the evaluation to be conducted in the early fall of 2015, which was the earliest Dr. Bernou could complete it because she was already "booked" until the third week of August. AR 507, 610.

Also in the spring of 2015, Mother began looking for other options for S.H. because she felt that his placement at Acalanes was not working. AR 788. Around April 2015, S.H. applied to Orion Academy ("Orion"), a state-certified non-public school in Moraga California, and he was accepted in May. AR 610-611. The tuition for the 2015-2016 school year was $33,500. AR 611.

Page 3

Mother entered into a tuition contract with Orion and by July 7, 2015, she had paid $19,230 in tuition, much of which S.H.'s grandmother had borrowed from her retirement fund to pay. Id. In November 2015 Mother entered into a payment plan for the remainder of the tuition, which was to be paid in installments in December 2015, February 2016 and March 2016. Id. To help pay for Orion and as part of an agreement with S.H.'s grandmother, Mother and S.H. moved to less expensive housing in Concord, California, in the Mt. Diablo Unified School District, on July 31, 2015. AR 612.

S.H. began school at Orion on August 6, 2015, when Orion's school year began. Id. This was during the summer break after the school year had ended in Acalanes and before the public high school in Mt. Diablo (Mt. Diablo High School, or "MDHS") had started. Id. At the recommendation of Dr. Kathryn Stewart, the executive director of Orion, S.H. was enrolled there as a ninth grader. AR 611-612.

The first day of school at MDHS was August 26 or 27, 2015. AR 612. A day or two before that, on August 24 or 25, 2015, Mother filled out registration paperwork to enroll S.H. at MDHS. AR 615. She checked a box indicating that S.H. was in special education. Id. Mt. Diablo asked for a copy of S.H.'s most recent IEP and Mother provided a copy of the March 25, 2015 IEP without a signature page. Id. It appears to be undisputed that Mother did not alert anyone at Mt. Diablo at that time that she had not consented to the March 25, 2015 IEP. AR 615. Nor is there any evidence in the record that Mt. Diablo asked Mother to supply the signature page or if she had consented to the March 25, 2015 IEP.

On August 25, 2015, Mother told the MDHS registrar that she had privately placed S.H. at Orion. AR 615. On August 27, 2015, Mother emailed several Mt. Diablo employees informing them that she had enrolled S.H. at MDHS and was requesting an IEP meeting to be conducted in October 2015. Id. She requested the October date so that Dr. Bernou's IEE would be complete by the time of the IEP meeting. AR 832. Apparently, MDHS employees believed that S.H. would begin attending MDHS at the commencement of school year, creating a schedule for him and initially marking him absent when he did not show up to school. AR 615-616. On September 4, 2015, the MDHS vice-principal, Nichole Hackett, contacted Mother to let her know that S.H. had

Page 4

a schedule at MDHS that included two special education classes and two classes supported by special education staff. AR 616. Mother responded that she wanted to wait and see what services MDHS would be able provide so she could compare them with the services being provided at Orion before moving S.H. to MDHS. Id.

Dr. Bernou completed her written report on October 7, 2015. AR 617. Among other things, she recommended that S.H. receive 45 minutes per week of individual speech/language services and 45 minutes per week of group speech/language services. AR 257.

On October 14, 2015, Mt. Diablo held an IEP team meeting in order to consider Dr. Bernou's evaluation and develop interim placement and services for S.H. for a 30-day period. AR 621. In attendance were Mother, Dr. Bernou, Case Manager Dr. Beth Dela Cruz, Ms. Hackett, and school psychologist Jennifer Steinbeck. AR 140. Because Mt. Diablo considered the meeting to be an interim IEP meeting, the team did not address S.H.'s goals. AR 1084. No general education teacher participated in the meeting, and Mother and Ms. Hackett signed a form stating, in part:

By mutual agreement between the parent/adult student, and designated representative of the local education agency, the presence and participation of the Individual Education Program team member(s) identified below is/are not necessary and has/have been excused from being present and participating in the meeting scheduled on 10/14/15 because (1) the member's area of the curriculum or related services is not being modified or discussed in the meeting or (2) the meeting involves a modification to or discussion of the member's area or related services and the member submitted, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.

AR 144. Handwritten in the space left for listing the names of the missing team members was written: "Regular education teachers have been excused due to no definite class schedule." Id.

The IEP team decided to offer S.H. the services and placement in the March 25, 2015 IEP with some modifications based on Dr. Bernou's evaluation. AR 621. Under the heading "Offer of Services by MDHS" a list of bullet points described the services to be provided. AR 141. One of the bullet points states: "Speech and Language: 40 minutes a week" without any elaboration as to whether this instruction would be in a group or individual setting. Id. The IEP states that the team planned to hold another IEP team meeting "to give Mom time to further consider options - from MDHS and from Orion." AR 142. Mother did not consent to the October 14, 2015 IEP ("Interim

Page 5


On October 21, 2015, S.H.'s attorney sent a "Notice of Intent to Place at Orion Academy." AR 348. That letter states that Mt. Diablo's "current offer of placement . . . is not appropriate." Id. The letter further informed Mt. Diablo that S.H. would remain at Orion and that Mother would "seek reimbursement from the district for the costs of this appropriate program." Id. The next day, Mother filed a due process hearing request with the Office of Administrative Hearings ("OAH"). AR 603.

The following issues were raised in S.H.'s due process request:

Student's Issue I: Did Mt. Diablo commit the following procedural violations, which denied Student a free appropriate public education for the 2015-2016 school year:

a. failing to make a formal, specific written offer of [free appropriate

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT