Smith ex rel. C.M. v. Tacoma Sch. Dist.
| Decision Date | 03 August 2020 |
| Docket Number | CASE NO. C19-5910 BHS |
| Citation | 476 F.Supp.3d 1112 |
| Parties | Jana SMITH ON BEHALF OF minor C.M., Plaintiff, v. TACOMA SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Western District of Washington |
Jana Smith, Tacoma, WA, pro se.
Susan B. Winkelman, Sarah C. Johnson, Pacifica Law Group LLP, Seattle, WA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTIONS
This matter comes before the Court on Defendant Tacoma School District's ("the District") motion for summary judgment, Dkt. 32, and Plaintiff Jana Smith's ("Smith") motion to submit SSA Decision, Dkt. 37, and motion to compel interrogatories and requests for production, Dkt. 40. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants the District's motion and denies Smith's motions for the reasons stated herein.
On September 5, 2019, Smith, on behalf of minor C.M., filed a petition for judicial review and supporting exhibits in the Pierce County Superior Court for the State of Washington. Smith seeks review of the Administrative Law Judge's ("ALJ") decision affirming the District's denial of an Independent Education Evaluation ("IEE") under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. Id. Smith is proceeding pro se. Id. On September 29, 2019, the District removed the case to this Court. Dkt. 1.
On October 9, 2019, Smith filed a motion to seal financial statement, Dkt. 17, and a motion to allow counseling documents, Dkt. 18. On October 18, 2019, Smith filed a motion to submit counseling and neurology reports. Dkt. 19. On January 30, 2020, the Court denied the motions to submit additional evidence as improper attempts to expand the record as the sole issue on review is the District's January 8, 2019 reevaluation of C.M. Dkt. 27 at 2.
On March 5, 2020, Smith filed a motion to compel discovery. Dkt. 28. On May 7, 2020, the District filed the instant motion for summary judgment. Dkt. 32.
On May 26, 2020, the Court denied Smith's motion to compel on procedural grounds and because she failed to establish that additional discovery was necessary or otherwise relevant to her action for administrative review. Dkt. 35 at 2 (citing Ojai Unified Sch. Dist. v. Jackson , 4 F.3d 1467, 1473 (9th Cir. 1993) ).
On May 12, 2020, Smith filed a declaration in response to the District's motion for summary judgment. Dkt. 33.1 On May 17, 2020, Smith filed a brief in response to the District's motion for summary judgment. Dkt. 34. On May 29, 2020, the District replied. Dkt. 36.
On May 30, 2020, Smith filed a motion "for disclosure to submit SSA Decision." Dkt. 37. On June 15, 2020, the District responded. Dkt. 39. On June 16, 2020, Smith filed a motion to compel interrogatories and requests for production. Dkt. 40. On July 6, 2020, the District responded. Dkt. 41.
On July 9, 2020, the District filed a motion for extension of time for trial or pretrial dates or to strike trial and pretrial dates. Dkt. 45. On July 27, 2020, the Court granted the motion. Dkt. 52.
"The Individuals with Disabilities Education Act ("IDEA") guarantees children with disabilities a free appropriate public education ("FAPE")." M.C. by & through M.N. v. Antelope Valley Union High Sch. Dist. , 858 F.3d 1189, 1194 (9th Cir. 2017), cert. denied sub nom. Antelope Valley Union High Sch. Dist. v. M.C. ex rel. M.N. , ––– U.S. ––––, 138 S. Ct. 556, 199 L.Ed.2d 437 (2017) (citing 20 U.S.C. § 1400(d)(1)(A) ). Students with qualifying disabilities under the IDEA qualify for special education services if support provided through the regular school program is insufficient. L.J. by and through Hudson v. Pittsburg Unified Sch. Dist. , 850 F.3d 996, 1003 (9th Cir. 2017) (citing 20 U.S.C. § 1401(3)(A) ). " ‘[S]pecial classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.’ " Id. (quoting 20 U.S.C. § 1412(a)(5)(A) ); accord WAC 392-172A-01035(1)(a) ().
IDEA requires that qualifying students are afforded "an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 , ––– U.S. ––––, 137 S. Ct. 988, 1001, 197 L.Ed.2d 335 (2017). This is achieved "through the development of an individualized education program ("IEP") for each child with a disability." Ojai , 4 F.3d at 1469 (citing 20 U.S.C. § 1401(a)(18)(D) ). "The IEP is crafted annually by a team that includes a representative of the local educational agency, the child's teacher and parents, and, in appropriate cases, the child." Id. (citing 20 U.S.C. § 1414(a)(5) ).
IDEA violations may be procedural or substantive. It is possible for the school district to deny a FAPE "by failing to comply with the IDEA's extensive and carefully drafted procedures." Timothy O. v. Paso Robles Unified Sch. Dist. , 822 F.3d 1105, 1118 (9th Cir. 2016) (citing Doug C. v. Haw. Dep't of Educ. , 720 F.3d 1038, 1043 (9th Cir. 2013) ). "While some procedural violations can be harmless, procedural violations that substantially interfere with the parents’ opportunity to participate in the IEP formulation process, result in the loss of educational opportunity, or actually cause a deprivation of educational benefits ‘clearly result in the denial of a [free appropriate public education.]’ " Id. (quoting Amanda J. ex rel. Annette J. v. Clark Cty. Sch. Dist. , 267 F.3d 877, 892 (9th Cir. 2001) ). A substantive violation occurs when a school district drafts an IEP "that is not reasonably calculated to enable the child to receive educational benefits." J.W. v. Fresno Unified Sch. Dist. , 626 F.3d 431, 432 (9th Cir. 2010).
During the relevant time period, C.M., a child, attended an early intervention preschool program in the District. Smith is C.M.’s grandparent and caregiver. Smith cares for C.M. and two other grandchildren with special needs. AR 153. C.M.’s uncle, Timothy Van Cleeve ("Van Cleeve") helps Smith raise C.M. and her siblings and often attended IEP meetings with Smith. AR 146–47. Michael Beggs ("Beggs"), caregiver for C.M.’s brother, spent a substantial amount of time in the home and observed C.M. during the relevant time. AR 602. C.M. has been diagnosed with a number of medical conditions including sensory processing difficulties, hyperkinesia of childhood with developmental delay, general anxiety disorder, speech delay, expressive language delay, feeding difficulties (picky eater, oral aversion), allergies to soy and strawberries, functional constipation, separation anxiety, and urinary incontinence without sensory awareness. AR 374–75. Outside of school, she receives speech therapy, occupational and feeding therapy, and counseling, and is followed by an ophthalmologist, pediatric gastroenterologist, and Developmental Specialist. AR 374. Her pediatrician is Dr. Michael Tomkins ("Tomkins"). AR 374.
The District evaluated C.M. for special education services in October 2017 just before her third birthday and found she had a developmental delay. AR 396, 398. Specifically, the evaluation found that her hyperactivity and impulsivity adversely affected "her ability to attend, socialize, and build satisfactory relationships with peers" and that she needed specially designed instruction ("SDI") "in the area of social/emotional/behavioral skills in order to access the general education curriculum." AR 400.
C.M. began attending preschool in Susan Sabol's ("Sabol") classroom beginning in November 2017. AR 155. The District created an IEP for C.M. with two social emotional/behavioral goals to be achieved by November 5, 2018: (1) that C.M. would comply with adult directions and participate in activities without redirection in four of five opportunities as measured by teacher observation and behavioral data and (2) that when she became upset at school, C.M. would name her feelings and choose a calming activity/break in four of five instances as measured by teacher observation and behavioral data. AR 402. C.M.’s IEP provided that she would have breaks available when she was frustrated, short concise directions, positive reinforcement for social skills and choosing calming choices, an area for sensory breaks to calm down and become refocused, and sound filtering headphones as needed. AR 403. She would also have SDI four times per week for thirty minutes. AR 404.
A March 2018 IEP progress report stated that (1) C.M. had made good improvement in complying with adult direction and (2) would pout and not engage when she became upset but would not scream or have inappropriate physical contact with peers. AR 394–95. A June 2018 IEP progress report stated that (1) C.M. had met her annual goal regarding participation in adult-directed activities and her retention would be evaluated in the fall and (2) that she was able to name her feelings in three of five instances when she became upset and no longer required calming activities. Id.
In Fall 2018, C.M. was assigned to Corinne Watson's ("Watson") preschool classroom. AR 157. On October 25, 2018, C.M.’s IEP team met for her annual IEP review. AR 108, 157. Watson reported that C.M. was meeting the goals in her IEP and performing well in classroom assessments. AR 32–33, 108–09.
Smith testified that C.M.’s outside speech therapist had suggested that...
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