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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bickford v. State, Dept of Education and Early Development (02/09/2007) sp-6097
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| PAMELA BICKFORD, | ) |
| ) Supreme Court No. S- 11731 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-99-3470 CI | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF EDUCATION | ) |
| AND EARLY DEVELOPMENT, and | ) No. 6097 - February 9, 2007 |
| SHIRLEY J. HOLLOWAY, | ) |
| COMMISSIONER OF EDUCATION, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock,
Judge.
Appearances: Pamela L. Bickford, pro se,
Anchorage. Stephen C. Slotnick, Assistant
Attorney General, and David W. M rquez,
Attorney General, Juneau, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Fabe,
Justice, not participating.]
BRYNER, Chief Justice.
I. INTRODUCTION
Pamela Bickford submitted an administrative complaint
to the Alaska Department of Education and Early Development,
alleging that the department had violated the Individuals with
Disabilities Education Act (IDEA) by declining to decide an
earlier complaint of hers unless she resubmitted a clarified
version. After investigating the new complaint, the department
ruled that Bickfords original complaint had been properly
rejected. The main issue Bickford now appeals is whether the
department violated the IDEA by rejecting her original complaint
instead of deciding its merits. Because the first complaint
raised issues beyond the departments jurisdiction and failed to
specify whether Bickford meant to file it as a civil action, a
request for an IDEA due process hearing, or an IDEA
administrative complaint, we hold that the department properly
returned it to Bickford for clarification.
II. FACTS AND PROCEEDINGS
A. Summary of Statutory and Regulatory Framework
Before we describe the events that led to this appeal,
it will help to summarize the legal framework in which those
events occurred. This case centers on the departments compliance
with the IDEA, a federal law dealing with special education of
children.1 The IDEA requires any state receiving federal funds
for special education to adopt and enforce laws and regulations
complying with the IDEAs requirements.2 Alaska receives IDEA
funding and must therefore comply with its requirements. The
IDEA also creates various procedures designed to allow parents
and other interested parties ways to ensure state compliance with
the Acts requirements. Two of those procedures are particularly
relevant here: complaints for due process hearings and
administrative complaints.
1. Complaints for due process hearings
The IDEA provides that any parent who believes that a
school has misidentified, misevaluated, improperly placed, or
otherwise denied a free and appropriate public education to a
qualifying child has a right to file a complaint for an impartial
due process hearing.3 These hearings are designed to focus on
disputes concerning discrete decisions involving specific
children and the childrens parents; they are formal adjudicatory
proceedings in which parents and children have the rights to
counsel, to present evidence, and to call, confront, and compel
the attendance of witnesses.4 Due process hearings are also
required to be expedited: once a parent asks for a hearing, a
hearing officer has only forty-five days in which to issue a
final, written decision.5 The IDEA gives states the option of
specifying whether due process hearings are the responsibility of
local school systems or the state system.6 Alaska has chosen to
require complaints for due process hearings to be made to the
local district from which the complaint arises.7
2. Complaints for administrative investigations
The IDEA separately entitles any interested persons or
groups to initiate investigations of compliance with the IDEA by
submitting an informal complaint to the state educational agency
in Alaska, the Department of Education.8 When it receives a
complaint for an administrative hearing, the department must
carry out an independent on-site investigation, give the
complainant an opportunity to supply additional information about
the allegations contained in the complaint, determine whether a
violation of the IDEA has occurred and, within sixty days of
accepting the complaint, issue a written decision supported by
factual findings and conclusions of law, as well as an
explanation of its reasons.9 The departments final decision must
also include . . . [p]rocedures for effective implementation of
the [agencys] final decision, including, if needed, technical
assistance activities, negotiations, and corrective actions to
achieve compliance.10
B. Bickfords First Complaint
Pamela Bickford is the mother of a student once
identified by the Anchorage School District as learning disabled.
In the fall of 1998, she came to believe that the school district
was misusing testing procedures for evaluating special learning
disabilities. On October 9, 1998, Bickford mailed a document
entitled Complaint and Request for Due Process Hearing to the
board and commissioner of education, and to the board and
superintendent of the Anchorage School District. The complaints
caption listed eight individuals as plaintiffs, including
Bickford, and asserted that the plaintiffs were acting on their
own behalf and on behalf of a class of similarly situated
persons. The caption named as defendants the Anchorage School
Board and School District Superintendent as well as the Alaska
State Board of Education and the Alaska Commissioner of
Education. Bickford was the only plaintiff who had actually
signed the complaint.
Bickfords complaint set out twenty separate counts
accusing the Anchorage School District of violating IDEA student-
evaluation procedures,11 and of more broadly violating section 504
of the Rehabilitation Act,12 the Americans with Disabilities Act,13
section 1983 of the Civil Rights Act,14 and the Fourteenth
Amendment to the United States Constitution. The complaint
sought various forms of relief for these violations, including
injunctive relief, costs and fees, and [s]uch other or additional
relief as this Court may deem just and proper. Although the
format of the complaint, the violations it alleged, the relief it
requested, and the formal certificate of service that accompanied
it all seemed to suggest that it might have been drafted for
filing as a civil court action, the complaint failed to specify
where it was actually meant to be filed.
After reviewing the complaint, the school district
thought that it might be a draft legal complaint but also
recognized that it might have been meant in part as a request for
a due process hearing under the IDEA.15 As a precautionary
matter, the district appointed a hearing officer to oversee the
complaint, as required under applicable regulations governing
requests for due process hearings. Bickford later informed the
hearing officer that she did not intend to proceed with her due
process hearing request, so no hearing was held.16
Meanwhile, the department had referred Bickfords
complaint to the attorney generals office; after reviewing it,
Assistant Attorney General Tom Dahl returned it to Bickford with
a letter asking for clarification because of several procedural
problems that it presents. Dahl described three particulars that
needed to be clarified.
Dahl began by observing that only Bickford had signed
the complaint. He asserted that complaints must be signed by all
complainants or by their attorney. Since the state bar
association had informed him that Bickford was not an attorney,
Dahl pointed out that she was not entitled to bring an action on
behalf of anyone other than herself.
Next, Dahl noted that no court had been specified in
the complaint, but that Bickford had requested injunctive relief
under the federal rules of civil procedure. If the complaint was
intended to initiate a federal civil proceeding, Dahl asked that
Bickford name the federal court she had in mind and clarify what
federal question she was presenting. If, on the other hand,
Bickford intended the complaint to initiate proceedings either
under 34 C.F.R. 300.506 [mediation procedure] or 4 AAC 52.500
[the state code provision governing IDEA administrative
complaints17], Dahl informed her that she would have to restate
the claim on behalf of [her] child and [herself] alone, and ask
for the state to investigate the complaint as provided in the
[latter] regulation.
Last, Dahl noted that if Bickford had intended her
complaint to initiate a civil action, neither state nor federal
courts would allow her to sue the school board without first
exhausting administrative procedures. If, on the other hand,
Bickford was attempting to request a due process hearing, Dahl
claimed that the school district, not the department, was the
proper defendant as, under federal law, the state boards role was
limited to hearing appeals from local districts final decisions.
Indicating that these deficiencies made it difficult to
determine how Bickford wanted to proceed, Dahl informed her that
the department would take no further actions unless and until
Bickford clarified her intentions.
Bickford responded to Dahls letter with a letter dated
December 7, 1998, signed by Bickford and seven other parents,
addressing each of Dahls enumerated points.
Bickford acknowledged that she was not an attorney, and
she wrote that it had not been her intent to act as one. She
noted that a 1993 brochure, Your Rights as the Parent of a Child
Who Experiences a Disability, featured a section entitled
Complaint Procedure that cite[d] federal regulations and
provided:
The department will review, investigate and
take appropriate action on:
300.662 . . . . written complaints alleging
that a district or other educational agency
is acting contrary to [state] or federal
requirements for special education.
It was Bickfords understanding, she clarified, that the complaint
procedure was informal and parent friendly. . . [t]he form of the
complaint and identification of who may submit a complaint not
being identified. She then accused the department of having
improperly dismiss[ed] her complaint on the grounds that she had
failed to satisfy a procedural requirement that neither she nor
any of the other parents ever knew existed:
[Y]our dismissal of our complaint without
giving us the opportunity to satisfy your
requirement that all persons party to the
complaint submit an actual signature
acknowledging their joining the complaint,
sets out a standard of which we were not
informed.
Second, Bickford clarified that no court had been
identified in her complaint because the State [IDEA
Administrative-]Complaint Procedures, 34 CFR 300.660-300.662,
was the intended jurisdiction of our complaint. (She did not
acknowledge, though, that this was the first time she had
explicitly invoked 34 C.F.R. 300.660-.662 (1998)).
Finally, Bickford claimed that the department was a
proper defendant in her action because the department qualified
as an other educational agency as the term was used in 34 C.F.R.
300.660-.662 (1998), and because the state had a federal duty to
monitor local compliance with the IDEA.
Bickford summed up by asserting that her action was a
class action, that Dahl had failed to acknowledge that the state
had mandated complaint procedure[s], and that she and the other
parents believed that they had exhausted the administrative
remedies available to them. Based on these assertions, Bickford
indicated that she would not resubmit a clarified complaint to
the department but instead planned to file this complaint in
District Court in Anchorage. Evidently, Bickford did file a suit
against the department and school board in the United States
District Court for the District of Alaska; apparently the suit
was dismissed and the United States Court of Appeals for the
Ninth Circuit eventually affirmed the dismissal.18
C. Bickfords Second Complaint
On May 24, 1999, Bickford filed a second complaint
entitled, Complaint and Request for Due Process Hearing for
Violations of the Individuals with Disabilities Education Act.
The complaint included as plaintiffs (and was signed by) all
eight of the plaintiffs from Bickfords original complaint; but
the only defendant it named was the departments Office of Special
Education Programs. In the complaint, Bickford alleged that the
way the department had handled her original complaint had
violated the IDEA. Though her allegations were largely limited to
IDEA violations, she also requested that the department issue a
finding that the Alaska Department of Education has not fulfilled
its duty to provide procedural protections under Section 504.
Bickford also mentioned the ADA in her second complaint but did
not allege any ADA violations, and did not request that the
department find that Assistant Attorney General Dahls actions had
violated the ADA.
The department construed the new filing to be a
complaint seeking both a due process hearing and administrative
investigation; it thus responded by asking for several
clarifications. It noted that administrative complaints are to
be distinguished from complaints for due process hearings and
that the nature of Bickfords complaint therefore needed to be
clarified. It also asked Bickford to make clear whether she was
bringing her new complaint on behalf of the named complainants,
or whether the listed parents were asserting separate complaints
on behalf of their own children. In addition, the department
noted that Bickfords new complaint seemed to include allegations
of ADA and section 504 violations, which the department had no
authority to address. Finally, it sought to confirm its
understanding of the issue(s) to be the subject of the complaint
investigation stating that it believed the issue to be [d]id the
Department follow the complaint procedures as required by the
IDEA?
Bickford replied with a two-page letter in which she
clarified that she was, indeed, requesting both a complaint
investigation and a due process hearing and had styled the new
complaint as she had so as to give the Department maximum
flexibility in addressing [her] concerns. Bickford also
welcome[d] the states remarks regarding the ADA and section 504,
since they had confirmed for her that those issues could only be
resolved in a federal court. Finally, Bickford confirmed that
she understood the departments position to be that her complaint
only sought an investigation of one issue Did the Department
follow the complaint procedures as required by the IDEA? but did
not confirm that this comported with her own understanding of the
complaint.
Bickford and the department then held a teleconference
to further settle matters. During the teleconference, Bickford
abandoned her request for a due process hearing, and agreed that
the only issue to be investigated was whether the department had
violated IDEA complaint procedures. The department thus treated
Bickfords second complaint as being solely an administrative
special education complaint filed under its regulations
implementing the IDEA.19 Accordingly, it appointed an
investigator, Betty Barats, to perform the required investigation
of Bickfords administrative complaint.
In performing her investigation, Barats discerned six
specific allegations of wrongdoing in Bickfords administrative
complaint:
[1.] A due process hearing was not completed
within 45 days of the written request.
[2.] A written decision was not received by
the complainant within 60 days.
[3.] In spite of numerous calls to the State
Department of Education, not one parent
received correspondence about the
complaint.
[4.] The letter from the Assistant Attorney
General did not address the merits of
the complaint.
[5.] The Assistant Attorney General did not
respond to a letter signed by eight
parents on December 7, 1998.
[6.] The State Department of Education
did not have appropriate written
policies, practices and procedures for
the filing and handling of complaints.
Barats issued twenty-two findings of fact addressing
these points but found no evidence of a violation of law, though
she concluded that Dahl had made one misleading statement in his
letter to Bickford. Barats also determined that it was
reasonable to interpret the intent [of Bickfords complaint] as
either a request for a Due Process Hearing or notification of a
legal action and she closed her report with a recommendation that
Bickford re-submit her complaint in a less confusing form:
The complainant chose to use a format that is
common in the legal arena resulting in
confusion around the intent of the complaint.
There are procedures in place for the
handling of such complaints, and the facts
uncovered in this investigation do not
present evidence of violation of law.
This investigator would encourage the
complainant to re-submit the complaint to the
appropriate department, being sure to follow
the instructions provided in the Notice of
Procedural Safeguards: Parental Rights for
Special Education booklet.
Commissioner of Education Richard S. Cross adopted
Baratss decision and dismissed Bickfords complaint.
D. Bickfords Appeal to the Superior Court
Bickford appealed the commissioners decision to the
superior court. On appeal, she initially moved for a remand,
asserting that the commissioner had improperly issued a decision
without affording her a right to a hearing. The superior court
granted her motion and remanded the case to the department with
directions to receive testimonial and documentary evidence that
[Bickford] seeks to include in the record. Although the
department conducted a hearing on remand, no new evidence was
disclosed with which to supplement the record [and] [n]o
additional documents were admitted into evidence.
Bickford then moved for summary judgment in the
superior court. Her motion sought to expand the scope of the
appeal to include not just the procedural issues decided in
response to her second complaint but also the procedural issues
regarding the original complaint. Thus, in addition to
challenging the departments refusal to accept her original
complaint, Bickford asked the superior court to remand the case
to the department and require it to address the merits of the
issues raised in the original complaint. In support of her
motion for summary judgment, Bickford submitted a Corrected and
expanded version of the complaint she originally filed on
October 9, 1998.
After considering the departments opposition, Superior
Court Judge John Suddock affirmed the commissioners decision to
dismiss Bickfords case, determining that investigator Baratss
findings and conclusions were supported by substantial evidence
and not contrary to law. The court declined to address Bickfords
motion to grant summary judgment on new issues not considered and
decided by Barats, explaining that summary judgment is not
permitted under the Appellate Rules and that the documents
offered in support of the new issues were outside the scope of
this courts order allowing supplementation of the record and
supplemental briefing.
After considering a motion by Bickford asking the court
to reconsider various aspects of its ruling, the superior court
summarily denied the motion, and Bickford filed this appeal.
III. DISCUSSION
A. Standards of Review
Bickford argues that the superior court was wrong to
dismiss her second complaint because the department mishandled
her original complaint. In particular, she now argues that when
the department returned her original complaint to her, it both
violated IDEA, ADA, and section 504 complaint resolution-
procedures, and denied her procedural due process. She also
argues that the superior court did not have jurisdiction to hear
this dispute. In response, the department argues that no
provision of federal law governed the processing of Bickfords
ambiguous complaint and that the departments decision to ask
Bickford to clarify her intent was entirely proper. It argues
that the superior court had jurisdiction to hear Bickfords
administrative appeal, and it asks us to affirm the superior
courts decision dismissing Bickfords case because Commissioner
Crosss decision to adopt investigator Baratss report was not an
abuse of discretion.
When the superior court acts as an intermediate court
of appeal in an administrative matter, we independently review
the decision of the administrative agency.20 For questions of
fact, we apply a substantial evidence standard, asking whether an
agencys findings are supported by such relevant evidence as a
reasonable mind might accept to support a conclusion. 21 For
issues of law not involving agency expertise, such as statutory
interpretation and constitutional issues, we utilize a
substitution of judgment or independent judgment standard.22
Under this standard, we are free to substitute our own judgment
for the agencys even if the agencys decision had a reasonable
basis in law23 and will adopt rules of law most persuasive in
light of reason, precedent, and policy.24
B. Bickfords IDEA Claims
1. Jurisdiction
As an initial matter, Bickford contends that the
superior court lacked jurisdiction to hear her administrative
appeal. First, she argues that the superior courts jurisdiction
was defective because the Department of Education impermissibly
removed her complaint from its primary jurisdiction by assigning
it to an assistant attorney general, Dahl, who was not under the
supervision, direction, or control of the Commissioner of
Education, but the Attorney General. Second, Bickford also
argues that the superior courts jurisdiction was defective
because she never exhausted her administrative remedies and
because no complaint investigator ever issued a final decision on
the merits of her complaint.
We disagree. First, there is no merit to Bickfords
primary jurisdiction argument. At base, Bickford appears to be
arguing that the Department of Education should not have been
allowed to involve lawyers from the attorney generals office in
the resolution of her complaint; that assertion is plainly
incorrect. Second, Bickfords exhaustion argument is also
unpersuasive. Bickford appealed a final agency determination to
the superior court. Once the Department of Education had
completed its investigation of Bickfords administrative
complaint, no additional administrative procedures were available
to her. The superior court was therefore properly positioned to
hear her appeal.25
2. Challenges to rejection of Bickfords original
complaint
The core of Bickfords appeal is that the department
violated the IDEA by returning her original complaint to her
without considering its merits. The department argues that
Bickfords original complaint was too ambiguous to even trigger
the IDEA and it contends that its ambiguity warranted the
departments request for clarification.
As already stated, Bickfords administrative complaint
was assigned to investigator Barats. As part of her
investigation, Barats conducted interviews with Bickford,
Assistant Attorney General Dahl, three members of the Department
of Education, two special education officers employed by the
Anchorage School District, an attorney, another parent named in
the complaint, and a secretary of the State Board of Education.
She also reviewed the documents and correspondence described in
our facts and proceedings section, state court rules, federal
regulations, and the departments complaint-intake form.
Baratss decision considered six specific IDEA
allegations Bickford raised in connection with the rejection of
her original complaint and found that the record failed to
support any of these claims. The Commissioner of the Department
of Education upheld this determination. We must consider whether
the law and the record support Baratss decision.
First, Barats addressed the contention that no due
process hearing was completed within forty-five days of Bickfords
written request. Barats found that no violation had occurred
both because (a) the Anchorage School District attempted to
conduct a due process hearing but Bickford advised it that she no
longer wanted the hearing; and (b) the department was not the
proper party from which to request a due process hearing.
Regarding the school districts efforts, the record confirms that
the district did indeed attempt to conduct a due process hearing
and that Bickford in fact did tell the district that she no
longer wanted a hearing. As to the departments failure to
conduct a due process hearing, Bickford fails to establish that
it had a legal obligation to do so.
Federal law leaves states free to enact laws
determining whether due process hearings shall be conducted by
the State educational agency or by the local educational agency.26
Alaska state law squarely assigns the duty to local school
districts by recognizing that there are only two parties to a due
process hearing school districts and parents and by specifying
that a hearing may be requested by serving the opposing party: in
other words, parents requesting due process hearings must make
the request to the district.27
The second allegation Barats considered involved
Bickfords contention that her original complaint had incorporated
a complaint for administrative investigation that the department
failed to decide within sixty days of its filing, as the IDEA
required.28 Barats noted that federal regulations allow states to
delay resolution of identical issues raised in a complaint while
those same issues are pending in a due process hearing29 and
concluded that it was proper for the department to take no action
on Bickfords complaint, which seemed to be requesting both,
pending clarification that Bickford was not pursuing a due
process hearing or notification that her hearing had been
completed. We find no error in this determination.
Barats next considered Bickfords contention that, [i]n
spite of numerous calls, Bickford was the only parent of the
eight parents her original complaint listed as plaintiffs who
received correspondence from the department about the complaint.
Barats concluded that no violation of law occurred, both because
(a) Bickford was the only party who signed the complaint and (b)
the complaint had not been properly served on the department. We
agree with the first rationale and need not consider the second.
In her original complaint Bickford failed to make clear
whether she meant to file a formal civil court claim, a request
for an IDEA due process hearing, an administrative complaint, or
some combination of the three. Since no other plaintiff signed
the original complaint and Bickford would have lacked authority
to assert or represent the interests of other parents in either a
court case or a formal due process hearing, it was not
unreasonable for the state to communicate only with Bickford
until she clarified her intentions and made suitable changes to
her complaint. Bickford cites no provision of law that would
have required the department to respond or send copies of
responses to each of the named plaintiffs, and we are aware of no
such provision. Accordingly the record discloses no error of law
or fact on this point.
Fourth, Barats considered Bickfords complaint that
Dahls letter failed to address the merits of her original
complaint. Barats found that although the original complaint
might have been meant as an administrative complaint, it was also
reasonable to interpret the intent [of Bickfords complaint] as
either a request for a Due Process Hearing or notification of a
legal action. Barats concluded that, given this ambiguity, Dahl
could reasonably determine that the appropriateness of the
procedures being followed . . . were the only merits that could
be addressed in that early stage.
Barats did find, however, that Dahls letter to Bickford
was misleading to the extent that it directed her to amend her
complaint to include only herself and her child if she intended
it as a complaint for administrative investigation under 4 AAC
52.500. Barats found the instruction mistaken as a matter of law
because unlike requests for due process hearings, administrative
complaints under 4 AAC 52.500 need not be restricted to an
individual child. Barats nevertheless concluded that, while
misleading, this error does not constitute a violation of the
law. We need not decide the point: considering the remaining
uncertainties in Bickfords original complaint and Bickfords
December 7 letter notifying the department that the plaintiffs
would be pursuing their case in federal court, we see no
reasonable likelihood that Dahls misstatement on this relatively
minor point had any prejudicial effect. Accordingly, even
assuming that a misstatement of the law might amount to a
violation of the IDEA under some circumstances, any error here
was plainly harmless.
As we have already determined above in upholding
Baratss ruling on Bickfords second allegation, Dahls decision to
call for clarification instead of attempting to guess Bickfords
intent was reasonable under the circumstances in all other
respects.
The fifth point of error Barats considered was
Bickfords assertion that Dahl violated the IDEA by failing to
reply to the parents December 7 letter, which responded to Dahls
letter to Bickford and answered his questions seeking
clarification of the original complaints intent. Barats found as
an initial matter that [t]here are no requirements in [the] IDEA
regarding such a letter, so Dahls failure to respond could not
have amounted to a violation of the law.
More important, Barats ruled that [s]ince that letter
expressed the complainants[] intent to file in District Court and
did not request additional action by the State . . . there was no
reason for a response at that time. The latter ruling is
dispositive here: the December 7 letter unequivocally notified
Dahl and the department that Bickford would be filing an action
in federal court, would not be filing an amended complaint, and
was not requesting the state to act on her original complaint as
clarified in the December 7 letter. In short, the letter left no
door open and no reason to respond.
The sixth allegation Barats considered was whether the
department had established appropriate written policies,
practices, and procedures to guide Bickford in attempting to file
and pursue her original complaint. Investigator Barats found
that the Department of Education had issued a Notice of
Procedural Safeguards to parents that met at least the minimum
requirements of the law and also indicate[d] the department and
address to which a complaint should be submitted. She found that
Bickford had been given a copy of this document and had ample
time to re-file her complaint in accordance with its
instructions. Bickford has not challenged these findings on
appeal, and we see no obvious error in them. Assistant Attorney
General Dahls effort to point out the original complaints
ambiguities and to obtain a clarified complaint appears to us to
have been a reasonable attempt to provide precisely the guidance
that Bickford claims she lacked; and her own abrupt refusal to
submit an amended complaint leaves no basis for claiming
prejudice from lack of earlier guidance.
C. ADA and Section 504
Bickford next claims that the state violated complaint-
resolution procedures of the ADA and section 504 by returning
her original complaint without addressing its merits. She
further argues that the ADA and section 504 claims set out in her
original complaint should be rejoined to the IDEA claims and
remanded to [the] superior court for a ruling on the merits.
The department responds that Bickfords ADA and section
504 claims are not part of this appeal. It also notes that
Bickfords points on appeal to the superior court focused solely
on IDEA claims. Moreover, the department notes that even if we
did consider Bickfords ADA and section 504 claims, we would have
to reject them because only the Anchorage School District could
consider them in the first instance.
We agree that these claims have not properly been
preserved. Bickford failed to raise these claims in her second
complaint. At the investigation stage before the department,
Bickford expressly agreed that Barats would investigate only
whether the department had complied with IDEA procedures.
Neither the department nor the superior court had occasion to
address them. And as the superior court correctly determined,
Bickford could not properly resurrect her original complaint in
her administrative appeal to the superior court seeking review
only of the departments dismissal of her second complaint.
Bickfords ADA and section 504 claims are not properly a part of
this appeal.
D. Due Process
Finally, Bickford also argues that the states response
to her first complaint denied her procedural due process. She
argues that she should have been allowed to amend [her] request
for disparate remedies, that the department never provided her
with the opportunity to correct errors, that it provided her with
an inadequate description of her procedural rights, and that the
departments informal complaint procedures and formal due process
hearing procedures are confusing optional avenues. She suggests
that each of these actions (or omissions) violates the three-part
Mathews v. Eldridge30 balancing test we have adopted to assess
whether administrative actions violate due process.31
The department argues that Bickford received the full
process to which she was entitled. It argues that Bickford was
entitled only to a guarantee that the Department of Education
would take a hard look at her complaint, citing Laidlaw Transit,
Inc. v. Anchorage School District.32 Moreover, the department
argues, the superior court actually provided Bickford with an
unusual amount of process in this case by allowing her the
opportunity to create a record by examining witnesses and
introducing documents.
We decline to address these arguments because Bickfords
due process claims are also inappropriately raised at this point.
Bickford did not raise these arguments before the superior court
and they are therefore beyond the scope of her appeal.
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts and
the departments decisions to dismiss Bickfords complaint.
_______________________________
1 See generally 20 U.S.C. 1400-1482 (2005) (establishing
funding structure for state special education programs and
providing for private enforcement through various administrative
procedures such as cause of action in participating states
through due process hearings and administrative complaints).
Alaska provides for IDEA due process hearings in AS 14.30.193 and
4 AAC 52.550.
2 20 U.S.C. 1411(a)(1).
3 20 U.S.C. 1415(f)(1)(A) provides:
Whenever a complaint has been received under
subsection (b)(6) [involving any matter
relating to the identification, evaluation,
or educational placement of a child or the
provision of a free appropriate public
education to a child] or (k) [involving
placement in an alternative educational
setting] of this section, the parents or the
local education agency involved in such
complaint shall have an opportunity for an
impartial due process hearing, which shall be
conducted by the State educational agency or
by the local educational agency, as
determined by State law or by the State
educational agency.
4 Id. 1415(h).
5 20 U.S.C. 1415(f)(1)(B)(ii) (if local education agency
has not remedied parents complaint within 30 days parent may
request due process hearing); 34 C.F.R. 300.510(b)(1)-(2) (if
agency has not resolved parent complaint within 30 days of
receiving complaint a due process hearing may occur and the time
line for issuing a final decision begins); 34 C.F.R.
300.515(a)(1)-(2) (agency must submit written decision to
parties within 45 days of end of 30-day period).
6 20 U.S.C. 1415(f)(1)(A).
7 AS 14.30.193(a) provides that [a] school district or a
parent of a child with a disability may request a due process
hearing and that [a] request is made by providing written notice
to the other party to the hearing. (Emphasis added.)
8 34 C.F.R. 300.660-.662 (1998) (current version at 34
C.F.R. 300.151-.153 (2006)). Unlike the due process hearing,
which is expressly provided for by statute, the administrative
complaint is established only in the code of federal regulations.
See Lucht v. Molalla River Sch. Dist., 225 F.3d 1023, 1026 (9th
Cir. 2000). Alaska provides for complaints requesting
administrative hearings in 4 AAC 52.500.
9 See 34 C.F.R. 300.661(a)(4) (1998) (current version at
34 C.F.R. 300.152(a)(5) (2006)).
10 34 C.F.R. 300.661(a) (1998) (current version at 34
C.F.R. 300.152(b)(2)(i)-(iii) (2006)).
11 20 U.S.C. 1412, 1414.
12 29 U.S.C. 794 (2005).
13 42 U.S.C. 12101-12213 (2005).
14 42 U.S.C. 1983 (2005).
15 In Alaska, IDEA due process hearings are governed by 20
U.S.C. 1415(f); AS 14.30.193; and 4 AAC 52.550.
16 In addition, the district evidently thought that
Bickford might have meant to pursue an administrative complaint
under the IDEA. In September 1998, based on a letter and other
materials sent by Bickford in August 1998, the district had asked
the Department of Education to undertake a general review of its
testing procedures for compliance with state and federal law. It
appears that the department undertook such a review.
17 In Alaska, IDEA administrative complaints are governed
by 34 C.F.R. 300.660-.662 (1998) (current version at 34 C.F.R.
300.151-.153 (2006)) and 4 AAC 52.500.
18 See Bickford v. Anchorage Sch. Dist., No. CV-98-00408-
HRH (D. Alaska Feb. 3, 1999) (dismissing case without prejudice),
affd by 208 F.2d 220 (9th Cir. 2000) (unpublished table
decision), cert. denied, 531 U.S. 876 (2000).
19 See 4 AAC 52.500.
20 Collins v. Arctic Builders, Inc., 31 P.3d 1286, 1288-89
(Alaska 2001).
21 Phillip Weidner & Assocs., Inc. v. Hibdon, 989 P.2d
727, 730 (Alaska 1999) (quoting Grove v. Alaska Constr. &
Erectors, 948 P.2d 454, 456 (Alaska 1997)).
22 State, Dept of Pub. Safety v. Shakespeare, 4 P.3d 322,
324 (Alaska 2000); Phillip Weidner & Assocs., 989 P.2d at 730.
23 Shakespeare, 4 P.3d at 324 .
24 Phillip Weidner & Assocs., 989 P.2d at 730.
25 See Alaska R. App. P. 602(a)(2).
26 20 U.S.C. 1415(f)(1)(A).
27 AS 14.30.193(a) provides that [a] school district or a
parent of a child with a disability may request a due process
hearing and that [a] request is made by providing written notice
to the other party to the hearing. (Emphasis added.)
28 See 34 C.F.R. 300.661 (1998) (current version at 34
C.F.R. 300.152 (2006)); see also 4 AAC 52.500(c)(6).
29 See 34 C.F.R. 300.661 (1998) (current version at 34
C.F.R. 300.152 (2006)); see also 57 Fed. Reg. 44,794, 44,851
(Sept. 29, 1992).
30 Mathews v. Eldridge, 424 U.S. 319 (1976).
31 See, e.g., State, Dept of Health & Soc. Servs. v.
Valley Hosp. Assn, 116 P.3d 580, 583 (Alaska 2005).
32 Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1025 (Alaska 2005).
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