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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Madeline P. and Rex P., on behalf of their minor son, Manuel P. v. Anchorage School District (12/9/2011) sp-6623
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MADELINE P. and REX P., )
on behalf of their minor son, ) Supreme Court Nos. S-13542/13561
MANUEL P., )
) Superior Court No. 3AN-08-05037 CI
Appellants and )
Cross-Appellees, )
) O P I N I O N
v. )
) No. 6623 - December 9, 2011
ANCHORAGE SCHOOL DISTRICT, )
)
Appellee and )
Cross-Appellant. )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Jack Smith, Judge.
Appearances: Sonja D. Kerr, Public Interest Law Center of
Philadelphia, Philadelphia, Pennsylvania, for Appellants and
Cross-Appellees. Bradley D. Owens and Cheryl Mandala,
Jermain, Dunnagan & Owens, P.C., Anchorage, for Appellee
and Cross-Appellant.
Before: Carpeneti, Chief Justice, Winfree, Christen, and
Stowers, Justices. [Fabe, Justice, not participating.]
PER CURIAM.
I. INTRODUCTION
Parents challenged a school district's actions regarding their child's
educational program under the Individuals with Disabilities Education Act (IDEA). A
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hearing officer found an IDEA violation but awarded less compensatory education
services for the child than the parents requested. On appeal, the superior court affirmed
the IDEA violation finding and the compensatory education award. The parents appeal,
arguing that more compensatory education services should have been awarded; the
school district cross-appeals, arguing that no compensatory education services should
have been awarded. We affirm the superior court's findings regarding the school
district's violation of the IDEA's procedural and substantive requirements and the
compensatory education award.
II. BACKGROUND
A. Overview Of The IDEA
Under the IDEA federal funding is available to states providing children
with disabilities a "free appropriate public education."1 The IDEA defines "free
appropriate public education" as publicly funded "special education and related services"
meeting the state's educational standards and "provided in conformity with the
individualized education program."2 An individualized education program (IEP) is a
written statement documenting a child's present functioning, special education needs,
annual goals, program modifications, and other matters.3 An IEP team, which can
include the child's parents, teachers, school district representatives, appropriate experts,
and the child, should meet "not less frequently than annually" to develop, review, and
1 20 U.S.C. § 1412(a) (2006); see Bickford v. State, Dep't of Educ. & Early
Dev., 155 P.3d 302, 304 (Alaska 2007) (Bickford).
2 20 U.S.C. § 1401(9) (2006); see Bd. of Educ. v. Rowley, 458 U.S. 176, 179,
187-89 (1982) (discussing "free appropriate public education" as defined in Education
of the Handicapped Act, 20 U.S.C. § 1401 (1976), IDEA's precursor).
3 20 U.S.C § 1414(d)(1)(A)(i) (2006).
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revise an IEP.4 The IDEA also requires schools to provide the least restrictive
environment by ensuring "to the maximum extent appropriate, children with disabilities
. . . are educated with children who are not disabled."5
The IDEA requires participating states and their local educational agencies
to comply with both its procedural and substantive provisions.6 One procedural
component requires an educational agency to provide parents "[w]ritten prior notice"
whenever it proposes or refuses to initiate or change "the provision of a free appropriate
public education to the child."7 But a procedural failure violates the IDEA "only when
. . . [it] 'result[s] in the loss of educational opportunity or seriously infringe[s] the parents'
opportunity to participate in the IEP formation process.' "8 Substantively, a free
4 Id. § 1414(d)(1)(A)(i), (d)(1)(B), (d)(4)(A)(i).
5 20 U.S.C. § 1412(a)(5).
6 20 U.S.C. §§ 1412, 1414; Rowley, 458 U.S. at 206-07; Seattle Sch. Dist.,
No. 1 v. B.S., 82 F.3d 1493, 1498-99 (9th Cir. 1996).
7 20 U.S.C. § 1415(b)(3) (2006); accord 34 C.F.R. § 300.503 (2008). The
prior written notice must include, among other things a description of the agency's
proposed or refused action; an explanation of why the agency proposed or refused the
action; "a description of each evaluation procedure, assessment, record, or report" on
which the proposal or refusal is based; notice that the IDEA provides parents with
procedural safeguards and advice on how to learn more about the IDEA and its
safeguards; "a description of other options considered by the IEP [t]eam and the reason
why those options were rejected"; and a description of the factors relevant to the
proposal or refusal. 20 U.S.C. § 1415(c)(1).
8 R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th
Cir. 2007) (quoting W.G. v. Bd. of Trs. of Target Range Sch. Dist. No. 23, 960 F.2d 1479,
1484 (9th Cir. 1992)); see also Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 589 (9th
Cir. 1992) ("Of course, not every procedural flaw will give rise to a right of
reimbursement."); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990)
(continued...)
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appropriate public education is provided under the IDEA if the educational agency:
"(1) addresses the child's unique needs; (2) provides adequate support services so the
child can take advantage of the educational opportunities"; and (3) follows the IEP.9 But
failure to follow an IEP does not violate the IDEA unless the failure is material, meaning
"there is more than a minor discrepancy between the services provided to a disabled child
and those required by the IEP."10
Parents may challenge "any matter relating to . . . the provision of a free
appropriate public education" for their child, whether procedural or substantive.11 Unless
the educational agency and the parents agree otherwise, the child "remain[s] in the then-
current educational placement" (a "stay put") during the pendency of the challenge.12 The
IDEA allows states to develop specific procedures for challenges, but provides a
framework of procedural safeguards.13
8 (...continued)
("Before an IEP is set aside, there must be some rational basis to believe that procedural
inadequacies compromised the pupil's right to an appropriate education, seriously
hampered the parents' opportunity to participate in the formulation process, or caused
a deprivation of educational benefits.").
9 Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 893 (9th Cir.
1995) (citing Rowley, 458 U.S. at 188-89).
10 Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 815 (9th
Cir. 2007).
11 20 U.S.C. § 1415(b)(6)(A).
12 Id. § 1415(j).
13 Id. § 1415(a)-(o); see AS 14.30.193 (allowing parents to request due
process hearing and appeal result pursuant to AS 44.62.560); AS 14.30.272-.278
(providing procedural safeguards and directing school districts to ensure identification
(continued...)
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In Bickford v. State, Department of Education & Early Development, we
described two distinct methods for alleging an IDEA violation.14 First, any interested
person or group may "initiate investigations of compliance with the IDEA by submitting
an informal complaint" to the State of Alaska, Department of Education (Department).15
Upon receiving a complaint, the Department conducts an independent on-site
investigation, reviews additional information submitted by the complainant, and issues
a written decision within 60 days, supported by factual findings and conclusions of law,
determining whether an IDEA violation occurred.16 Second, parents can request a due
process hearing.17 These hearings are intended to be expedited "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."18 Due process hearings
"are designed to focus on disputes concerning discrete decisions involving specific
children and the children's parents."19
13 (...continued)
of children with disabilities, least restrictive environments, and individualized education
programs, respectively).
14 155 P.3d 302, 304 (Alaska 2007).
15 Id. at 305 (citing 34 C.F.R. §§ 300.660-.662 (1998)) (current version at 34
C.F.R. §§ 300.151-.153 (2010))).
16 Id.
17 Id. at 304-05.
18 Id. at 304. But see J.P. v. Anchorage Sch. Dist., 260 P.3d 285, 288 (Alaska
2011) ("The due process hearing began on February 5, 2008, but it was not completed
until July 18, 2008 - after P.P. completed second grade.").
19 Bickford, 155 P.3d at 304.
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A parent may challenge a hearing officer's due process hearing decision by
filing a civil suit in federal or state trial court.20
Unlike typical administrative appeals, in an appeal from a due process
hearing the IDEA directs the court to review the evidence independently, applying a
"modified de novo" standard to questions of fact and a de novo standard to questions of
law.21 The Ninth Circuit has observed that "judicial review in IDEA cases differs
substantially from judicial review of other agency actions, in which courts generally are
confined to the administrative record and are held to a highly deferential standard of
review."22
20 AS 14.30.193(f) ("A hearing officer's decision under this section
[governing due process hearings for children with disabilities] is a final administrative
order, subject to appeal to the superior court for review . . . .").
21 20 U.S.C § 1415(i)(2)(C)(i)-(iii) ("In any [civil] action brought under this
paragraph, the court (i) shall receive the records of the administrative proceedings; (ii)
shall hear additional evidence at the request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the court determines is
appropriate."); see Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877,
887-88 (9th Cir. 2001) ("We review de novo the question of whether a school district's
proposed individualized education program provided a free appropriate public
education . . . . Complete de novo review, however, is inappropriate. . . . Because
Congress intended states to have primary responsibility of formulating each individual
child's education, we must defer to their "specialized knowledge and experience" by
giving "due weight" to the decisions of the state's administrative bodies." (quoting
Rowley, 458 U.S. at 206-08)); P.N. v. Greco, 282 F. Supp. 2d 221, 235 (D.N.J. 2003)
("In reviewing administrative decisions in IDEA cases, a district court applies a de novo
standard to questions of law. Administrative findings of fact are subject to a modified
de novo standard of review . . . ." (internal citations omitted)).
22 Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471-72 (9th Cir. 1993);
see also id. (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988) ("[T]he
district court's authority under § [1415(i)] to supplement the record below with new
(continued...)
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B. Facts And Proceedings
Manuel qualifies for special education services.23 In late August 2006
Manuel's IEP team met to update his IEP for the upcoming year at a school in the
Anchorage School District (ASD). The IEP provided for 27.5 hours of weekly special
education and related services, including three hours of weekly writing instruction in the
general education classroom. That year Manuel began second grade in Mardena
Williams's general education classroom. Special education teacher Lisa LoSordo-Santo
provided Manuel's writing instruction in Williams's classroom. Manuel's IEP team met
at least monthly and as part of the team his parents, Madeline and Rex, were entitled to
attend the meetings.
In October ASD learned that Williams would take previously unscheduled
family leave for much of November. After an October 24 IEP meeting, but before an
October 31 IEP meeting, LoSordo-Santo told Madeline that the rest of the IEP team
wanted Manuel to receive writing instruction in LoSordo-Santo's resource room, rather
than the general classroom, during Williams's family leave. Madeline told
LoSordo- Santo she "wasn't happy" about the move. Madeline attended the October 31
22 (...continued)
evidence, as well as Congress's call for a decision based on the 'preponderance of the
evidence,' plainly suggests less deference than is conventional [in the review of agency
actions.]"); Town of Burlington v. Dep't of Educ., 736 F.2d 773, 791 (1st Cir. 1984)
("Congress intended courts to make bounded, independent decisions - bounded by the
administrative record and additional evidence, and independent by virtue of being based
on a preponderance of the evidence before the court . . . ."), aff'd sub nom. Sch. Comm.
v. Dep't of Educ., 471 U.S. 359 (1985)); Cnty. of San Diego v. Cal. Special Educ.
Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996) ("At bottom, the court itself is free
to determine independently how much weight to give the administrative findings in light
of the enumerated facts.").
23 We use pseudonyms for all family members.
-7- 6623
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meeting, but "[t]here was no discussion about making the decision" to move Manuel's
writing instruction - it was her understanding that the decision had already been made.
On November 3, Debora Schofield, the school's Department Chair for
Special Education, emailed a summary of the October 31 meeting to Madeline, Rex, and
the other IEP team members, noting that "[w]hen reviewing the agenda, [Madeline]
requested that the meeting focus on developing a plan to be implemented in [Williams's]
absence (November 8 to 28, 2006)." ASD never provided formal "prior written notice"
about the proposed move of Manuel's writing instruction from the general classroom to
the resource room.
Although Williams returned around November 28 and Schofield had
understood that "upon [Williams's] return, [Manuel] would go back into the [general
education] classroom for writing," Manuel's writing instruction continued in the resource
room. LoSordo-Santo later testified that Manuel's continued placement in her resource
room was "on a trial basis."
Nine days before a January 19, 2007 meeting, Schofield circulated an
agenda suggesting the IEP team discuss Manuel's writing instruction location, specifically
whether to amend the IEP or return the instruction to the regular classroom as stated in
the current IEP. Notes taken during the meeting indicate Madeline participated in the
discussion and expressed that she wanted an "inclusionary environment" for Manuel. The
meeting notes reflect the IEP team amended Manuel's IEP to allow the instruction in
either the general education or resource room. After the meeting, LoSordo-Santo
prepared a "prior written notice" describing the IEP changes. Madeline later testified that
she did not agree to that amendment.
The IEP team subsequently met on February 16, March 9, April 11, and
April 13, 2007. During the March meeting the IEP team considered moving Manuel's
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writing instruction exclusively to the general education classroom. LoSordo-Santo
prepared a "prior written notice" after the March meeting explaining why the IEP was not
changed. A "prior written notice" issued on April 17 indicated the IEP team had rejected
"amending the IEP to change the '[l]ocation' of writing to the [general] classroom
exclusively."
Madeline and Rex requested a due process hearing in April 2007. They
alleged:
In the fall of 2006, [ASD] changed the placement of our son
from the regular classroom to the resource room without prior
written notice. In January, we disagreed with a [prior written
notice] on the grounds that it was not based on [Manuel's]
needs. Rather it was based on available personnel. The IEP
team continued to try to reach a consensus through March
2007. In March 2007, the principal, Glen Nielsen interfered
in the IEP process and would not allow the IEP team to
complete an amendment[] that had finally met consensus.
Madeline and Rex later rephrased their allegations. They focused on the lack of prior
written notice and proposed a new solution to establish a "stay put, and get [Manuel] back
in the classroom for writing with the [special education teacher] teaching him in his
regular education classroom." ASD responded that it had complied with the IEP, but
agreed to provide writing instruction with the special education teacher in the general
education classroom for the remainder of the school year.
A due process hearing commenced in June and concluded in November
2007. In January 2008 a hearing officer ruled that ASD's only IDEA violation occurred
when Manuel's instruction continued in the resource room after Willams returned from
leave. The hearing officer ruled that ASD's procedural failures to provide prior written
notice before moving Manuel's writing instruction to the resource room in November
2006 or amending Manuel's IEP in January 2007 were not IDEA violations because the
-9- 6623
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failures neither caused Manuel to lose educational opportunities nor created a significant
restriction or infringement on his parents' opportunity to participate in the IEP formation
24
process. The hearing officer declined to consider a new argument Manuel's parents
raised at the hearing, that ASD's practice of sending "prior written notice" of IEP changes
after they had already been implemented violated the IDEA, because they did not raise
the issue in the due process complaint. But the hearing officer found that by failing to
follow Manuel's IEP after Williams returned, ASD denied Manuel a free appropriate
public education and thus violated the IDEA's substantive requirements during the period
between Williams's return in late November 2006 and the January 2007 IEP amendment.
The hearing officer awarded Manuel 15 hours of writing instruction in the general
education classroom as compensatory education for the substantive IDEA violation.
The parents appealed to the superior court. The superior court
independently found that ASD's procedural failure to provide prior written notice before
moving Manuel's writing instruction or amending Manuel's IEP did not constitute IDEA
violations. The superior court also upheld the hearing officer's ruling that a subsequent
IDEA violation had occurred and affirmed the hearing officer's compensatory education
award. In upholding these rulings, the superior court deferred to the hearing officer's
"thorough and careful summary" of the evidence and explanation supporting the award.
The superior court agreed with the hearing officer that ASD's practice of sending "prior
written notice" after IEP changes had already been implemented was not raised in the due
process complaint and therefore was not properly before the hearing officer or the court,
but suggested that if it were, the court "would find this procedure illogical and not in
24 See note 8, above, and accompanying text; 20 U.S.C. § 1415(f)(3)(E)(ii)
(describing limited circumstances when hearing officer may find free appropriate
education denial on procedural grounds).
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compliance with the law." The superior court also concluded that it could not hear a new
claim Manuel's parents raised, that ASD had not provided the least restrictive
environment for Manuel, because it was not raised in the due process complaint and the
hearing officer had not considered it.
Manuel's parents appeal, arguing that: (1) ASD's policy of providing prior
written notice after an IEP change violates the IDEA; (2) Manuel was not placed in the
least restrictive educational environment; (3) ASD violated the IDEA by failing to
provide prior written notice before moving Manuel's writing instruction to the special
education classroom; (4) ASD violated the IDEA by failing to provide prior written notice
before amending Manuel's IEP in January 2007; and (5) Manuel deserved compensatory
education for the entire time he received instruction in the resource room. ASD cross-
appeals, arguing it did not violate the IDEA and Manuel should not have been awarded
any compensatory education.
III. DISCUSSION
A. Standard Of Review
Our review of administrative proceedings generally follows the rule stated
in Bickford :
When the superior court acts as an intermediate court
of appeal in an administrative matter, we independently
review the decision of the administrative agency. For
questions of fact, we apply a "substantial evidence" standard,
asking whether an agency's findings are supported by such
relevant evidence as a reasonable mind might accept to
support a conclusion. For issues of law not involving agency
expertise, such as statutory interpretation and constitutional
issues, we utilize a "substitution of judgment" or "independent
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judgment" standard. [25]
Manuel's parents argue the Bickford standard of review applies to our review of the
superior court's decision. We disagree.
Bickford concerned an administrative agency's rejection of an IDEA
complaint sent by a parent to the Department and the school district.26 The school district
appointed a hearing officer, while the Department turned the complaint over to the
attorney general's office, which requested clarification.27 The parent's response to the
attorney general's office invoked 34 C.F.R. §§ 300.660-.662 (1998), the regulation setting
forth how a complaint requesting an investigation is made.28 But the parent then stated
in her response that she would pursue her claim in federal district court. The United
States District Court for the District of Alaska dismissed that case, and the Ninth Circuit
Court of Appeals ultimately affirmed.29 Meanwhile, the parent filed a second complaint
with the Department, alleging its handling of her initial complaint violated the IDEA.30
The parent "abandoned her request for a due process hearing" during a settlement
conference and none was held.31 An investigator recommended dismissing the parent's
25 155 P.3d at 309 (citations and quotation marks omitted).
26 Id. at 304-05. The school district in Bickford was unsure whether the
complaint was a request for a due process hearing, a request to initiate an investigation,
or a draft civil complaint. Id. at 305-06 & n.16.
27 Id. at 306.
28 Id. at 306-07 & n.17.
29 Id. at 307.
30 Id.
31 Id. at 308.
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complaint and requested that it be resubmitted in a "less confusing form."32 The
Commissioner of Education adopted that recommendation.33 On appeal, the superior
court applied the ordinary standard of review for administrative appeals and affirmed the
dismissal.34 The parent appealed, and we applied the standard of review discussed
above.35
Bickford 's procedural posture is substantially different from this case. In
Bickford, the superior court reviewed an administrative decision to dismiss the parent's
case on purely procedural grounds.36 Because there was no due process hearing and,
therefore, no factual findings to review, the IDEA's modified de novo standard of review
did not apply to the superior court.37 Here the superior court reviewed a due process
hearing and applied the modified de novo standard of review.
We agree with the Ninth Circuit's formulation of this modified de novo
standard of review: in an appeal from a due process hearing, we will review the superior
court's findings of fact "for clear error, even if those findings are based on the
administrative record";38 we will review questions of law de novo;39 and we will review
32 Id.
33 Id.
34 Bickford v. State, Dep't of Educ., No. 3AN-99-3470 CI (Alaska Super., Oct.
4, 2004).
35 Bickford, 155 P.3d at 309.
36 Id.
37 See note 21, above, and accompanying text (discussing modified de novo
standard).
38 Napa Valley, 496 F.3d at 937 (citing Amanda J., 267 F.3d at 887); see Van
(continued...)
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mixed questions of law and fact de novo, unless factual questions predominate.40 The
determination of whether a school district provided a student free appropriate public
education is a mixed question of law and fact.41
B. Issues Not Properly Raised
Under the IDEA "[t]he party requesting the due process hearing shall not be
allowed to raise issues at the due process hearing that were not raised in the notice . . .
unless the other party agrees otherwise."42 Neither the parents' original due process
hearing request nor their rephrased request challenged ASD's general practice regarding
prior written notice or ASD's alleged failure to place Manuel in the least restrictive
38 (...continued)
Duyn, 502 F.3d at 817; Wartenberg, 59 F.3d at 891 (citing Ash , 980 F.2d at 588); Oberti
v. Bd. of Educ., 995 F.2d 1204, 1220 (3d Cir. 1993) ("[W]e review the district court's
decisions regarding whether to adopt the agency fact findings under the deferential,
clearly erroneous standard.").
39 Van Duyn, 502 F.3d at 817 ("The district court's legal conclusions are
reviewed de novo."); Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77,
82 (2d Cir. 2005) (" '[S]tate hearing officers are not more experienced or expert than
courts in interpreting federal statutes or the federal constitution,' and, therefore,
'deference is not warranted.' "); Wartenberg, 59 F.3d at 891 (citing Union Sch. Dist. v.
Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)).
40 Napa Valley, 496 F.3d at 937 (citing Amanda J., 267 F.3d at 887); Hood
v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 n.4 (9th Cir. 2007).
41 See P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 118
(2d Cir. 2008) ("Whether the district court correctly applied the IDEA's statutory and
regulatory provisions to the facts of a particular case is a mixed question of law and fact,
which we also review de novo."); Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 611
(8th Cir. 1997) ("Whether a school district has offered a free appropriate public
education is a mixed question of fact and law and the district court's ultimate
determination is reviewed de novo.").
42 20 U.S.C. § 1415(f)(3)(B).
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environment.43 We, like the superior court, therefore decline to address the issues as not
preserved below: ASD's practice regarding prior written notice and whether Manuel was
in the least restrictive environment.44
C. We Affirm The Superior Court's Findings And Conclusions Regarding
The Alleged Violations Of The IDEA's Procedural Requirements.
1. The temporary move during Williams's absence
Manuel's parents allege ASD's failure to provide prior written notice before
moving Manuel's writing instruction to the special education classroom violated the
IDEA.45 ASD failed procedurally by not providing prior written notice.46 But Manuel's
43 Manuel's parents claim their original due process complaint addressed the
least restrictive environment issue. They state that they "mentioned on several occasions
that part of [Madeline's] objection to [Manuel] being placed in the special education
room was that he was not being educated with his peers." But the complaint's language
indicates only an objection to the lack of prior written notice. In a follow-up email to the
hearing officer rephrasing the request, Madeline discussed the lack of prior written
notice, and concluded "I believe the original complaint stated the same, but maybe using
different wording." She further stated "[s]ince the district changed the location of
[Manuel's] services without PWN [prior written notice] he is entitled to Due Process."
(Emphasis added.) Neither the original complaint nor the rephrased allegations
suggested a claim relating to the least restrictive environment.
44 We echo the hearing officer's and superior court's concerns that immediate
implementation of IEP amendments before issuance of a prior written notice seems to
negate the "prior" in prior written notice.
45 Although free appropriate public education analysis is generally a mixed
question of law and fact, factual questions predominate in the determination of whether
a student lost educational opportunity or whether the parents lost the opportunity to
participate. Therefore we apply the clear error standard of review. Cf. Napa Valley, 496
F.3d at 937 & n.1 (describing standard of review for mixed questions of law and fact
(citing Amanda J., 267 F.3d at 887)).
46 See Robb v. Bethel Sch. Dist. No. 403, 308 F.3d 1047, 1049 (9th Cir. 2002)
(continued...)
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"IEP progress reports for the second quarter (Oct. - Dec. 2006) show he made some
progress on his writing goals." LoSordo-Santo testified that Manuel's entire IEP team
except Madeline agreed "[t]he environment [in the resource room] was more beneficial"
to Manuel and that Manuel had difficulty focusing on the writing lessons in the general
education classroom. Although Madeline disagreed, she acknowledged that she
"respect[ed] all of [the IEP team's] opinions very much" and was "certain [the team was]
looking after [Manuel's] best interests." Considering all of the evidence, the superior
court did not clearly err in finding that Manuel lost no educational opportunity due to his
temporary placement in the resource room.
Nor did the superior court clearly err in finding Manuel's parents maintained
their opportunity to participate in his education planning during Williams's absence.
Madeline "was fully informed" about the suggested move before it occurred. After
receiving oral notification, Madeline attended and participated in IEP meetings on
October 31 and November 17, 2006. Even if the team did not ultimately agree with
Madeline, she nevertheless had the opportunity to participate in the process.
Because Manuel lost no educational opportunity and Manuel's parents
maintained their opportunity to participate in planning his education, ASD's failure to
provide prior written notice before temporarily moving Manuel's writing instruction to
the resource room did not violate the IDEA.
2. The January 2007 IEP amendment
When Williams returned from family leave in late November 2006,
Manuel's IEP still stated that his writing instruction was to occur in the general education
46 (...continued)
(referring to prior written notice as procedural safeguard); Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 58 (1st Cir. 2002) (same); Birmingham v. Omaha Sch. Dist., 220
F.3d 850, 853 (8th Cir. 2000) (same).
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classroom. The IEP team did not amend Manuel's IEP to allow writing instruction in
either the resource room or the general classroom until January 19, 2007.
Manuel's parents implicitly argue that ASD's provision of "prior written
notice" on January 19 after the IEP had just been amended constituted a procedural
violation of the IDEA. But Manuel's parents were not deprived of the opportunity to
participate in Manuel's education planning as a result of the untimely prior written notice.
First, Madeline knew amending Manuel's IEP to reflect the new writing instruction
location would be discussed because Schofield listed it on an agenda that was sent nine
days prior to the meeting. Second, Madeline attended the January 19 meeting when the
IEP was amended and participated in the discussion. Even though Madeline ultimately
did not agree with the IEP team's conclusion to amend the IEP, she had ample
opportunity to prepare for the discussion and express her position.
There is no evidence in the record that Manuel lost any educational
opportunity because of ASD's failure to issue prior written notice. Manuel's parents do
not point to any facts suggesting the IEP would have been different, thus changing
Manuel's educational opportunities, had ASD issued prior written notice before the
meeting.
Therefore the superior court did not clearly err in finding that ASD's
procedural failure to provide prior written notice before changing Manuel's IEP did not
violate the IDEA.
D. We Affirm The Superior Court's Findings And Conclusions Regarding
The Alleged Violations Of The IDEA's Substantive Requirements And
Compensatory Education Award.
The superior court upheld the hearing officer's determination that failing to
return Manuel to the general education classroom after Williams returned was a denial of
free appropriate public education and the hearing officer's award of 15 hours of
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compensatory writing instruction in the general education classroom. Both parties
challenge these rulings.
1. The superior court's standard of review
As a threshold matter, in upholding the hearing officer's decision the
superior court stated that it "reviews the hearing officer's order for abuse of discretion."
However, it is clear from the context of the superior court's entire ruling that the court
properly applied the modified de novo standard. The superior court initially described
the proper standard of review as a modified de novo standard requiring an independent
review of the evidence while according some deference to the expertise of the hearing
officer:
The standard of judicial review under the IDEA is as
follows. The court's decision is based on the preponderance
of the evidence. The standard for review of a hearing officer's
decision under the IDEA is much different from the standard
used in other administrative reviews. Judicial review in IDEA
cases differs substantially from judicial review of other agency
actions in which courts generally are confined to the
administrative record and are held to a highly deferential
standard of review. . . .
However, complete de novo review is inappropriate
because Congress intended states to have the primary
responsibility of formulating each individual child's
education, and we must defer to their specialized knowledge
and experience by giving due weight to the decisions of the
states' administrative bodies. Congress requires courts to
apply a modified de novo standard when reviewing agency
disposition under the IDEA. This modified de novo standard
requires that a court must make an independent review of the
evidence, but in so doing, it must give due weight to the
administrative proceedings and afford some deference to the
expertise of the hearing officer and school officials
responsible for the child's education.
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The superior court then discussed case law describing the relationship between the
modified de novo standard and deference to administrative expertise:
The Ninth Circuit Court of Appeals has stated, ["T]he
court in recognition of the expertise of the administrative
agency must consider the findings carefully and endeavor to
respond to the hearing officer's resolution of each material
issue. After such consideration, the court is free to accept or
reject the findings in part or in whole.["] [Citing Parents of
Student W. v. Puyallup School District47].
Deference is particularly appropriate where the hearing
officer's review has been thorough and careful. [Citing Park
ex rel. Park v. Anaheim Union High School District48].
Finding the hearing officer's determinations were thorough
and careful, where the hearing lasted over eight days, and the
officer was engaged in the hearing and questioned the
witness[es] to ensure the record contained complete
information and that he understood the testimony, the [N]inth
[C]ircuit [held] that deference should be given to that hearing
officer's review.
And again in [Matrejek v. Brewster Central School
District49] the [District Court for the Southern District of New
York] stated, the officer's decision is thorough and careful
and therefore owed deference where it explores the evidence
thoroughly, makes detailed factual findings that are supported
by the evidence, and cogently explains the reasons for the
conclusions reached, and is well supported by citations to the
record.
Finally, the superior court took care to use the same language approved of
in these cases in upholding the hearing officer's finding of a substantive IDEA violation
47 31 F.3d 1489, 1494 (9th Cir. 1994) (quoting Gregory K. v. Longview Sch.
Dist. No. 3, 811 F.2d 1307, 1311 (9th Cir. 1987)).
48 464 F.3d 1025, 1031 (9th Cir. 2006).
49 471 F. Supp. 2d 415, 418 (S.D.N.Y. 2007).
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and award of compensatory education. The court first summarized the hearing officer's
ruling: the hearing officer determined (1) the failure to return Manuel to the regular
education classroom after Williams returned to school was a violation of his IEP;50 (2)
the violation constituted a denial of free appropriate public education because Manuel's
IEP included several behavioral goals that were predicated on his inclusion in the regular
education room, and by denying him access to the regular classroom for three hours per
week Manuel was denied an educational opportunity to improve on these goals; (3) the
violation lasted from Williams's return from family leave in November 2006 until the
IEP amendment in January 2007, a period of approximately six weeks; and (4) based on
this violation, Manuel was entitled to 15 hours of compensatory education based on his
removal from the regular classroom for three hours per week for approximately six
weeks. The superior court then ruled:
The hearing officer's decision here is entitled to
deference. It was not an abuse of discretion because the
award accorded with the purposes of the IDEA and was
adequately explained and supported by the record.
The hearing officer's [findings] of fact, which are
approximately 15 pages long, are entitled to deference,
because they are a thorough and careful summary of
approximately 14 days of hearings and 2500 [pages] of
exhibits. The hearing officer explained why he chose 15
hours and why the award was necessary in light of the ASD's
failure to provide FAPE [free appropriate public education]
to [Manuel]. (Emphasis added).
In short, the superior court correctly identified the unusual standard of
review that it was required to apply in reviewing the hearing officer's decision and cited
50 The hearing officer ruled that ASD was not out of compliance with
Manuel's IEP until Williams's return because the initial move of his writing instruction
to the resource room was "intended as a temporary measure, implemented on short notice
due to Ms. Williams' family emergency."
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persuasive authority as to the proper level of deference to apply when confronted with
a "thorough and careful"51 decision that contains "detailed factual findings that are
supported by the evidence"52 and "cogently explains the reasons for the conclusions
reached."53 The court then found that the hearing officer's decision shared these
attributes and affirmed. We therefore conclude the superior court's opening statement
that it was reviewing the hearing officer's decision for an abuse of discretion was an
unfortunate but immaterial misstatement.
2. Material failure to comply with IEP
ASD argues that Manuel should not receive any compensatory education
because moving Manuel's writing instruction to the resource room did not constitute a
material failure to comply with his IEP. "A material failure occurs when there is more
than a minor discrepancy between the services a school provides to a disabled child and
the services required by the child's IEP."54 "[T]he materiality standard does not require
that the child suffer demonstrable educational harm in order to prevail."55
The hearing officer rejected ASD's argument that its failure to return Manuel to
the general education classroom for writing instruction was not material, reasoning:
the process during this interim period was tainted by the
manner in which the team first characterized the change of
location as a temporary measure, based entirely on the need
to adjust for Ms. Williams' absence, and then appeared to
shift to other justifications for the change after her return to
school.
51 Park, 464 F.3d at 1031.
52 Matrejek, 471 F. Supp. 2d at 418.
53 Id.
54 Van Duyn, 502 F.3d at 822.
55 Id.
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We agree. ASD agreed to provide Manuel writing instruction among his peers in the
general education classroom, temporarily moved him to the resource room due to staffing
issues, and then unilaterally decided to prolong the temporary adjustment without
amending his IEP. Under these circumstances, this failure to comply with Manuel's IEP
was more than a "minor discrepancy."
Accordingly, we affirm the superior court's ruling that ASD's failure to
return Manuel to the general education classroom after Williams returned to school in
violation of his IEP was a denial of free appropriate public education.
3. Compensatory education award
Manuel's parents argue that Manuel should receive 78 hours of
compensatory education for the entire time he received writing instruction in the resource
classroom, even after the January 2007 IEP amendment. They argue that if ASD had
complied with the prior written notice requirement, Manuel would have been in the
general education classroom for those 78 hours. Because we have affirmed the superior
court's ruling that ASD's only IDEA violation was its failure to comply with Manuel's
IEP during the six-week period after Williams returned from family leave in November
2006 until his IEP was amended in January 2007, we also affirm the superior court's
ruling that the compensatory education award was properly limited to this time period.
IV. CONCLUSION
We AFFIRM the superior court's ruling that ASD did not violate the IDEA
by failing to provide prior written notice before moving Manuel's writing instruction or
amending his IEP. We also AFFIRM the superior court's ruling that ASD violated the
IDEA by failing to comply with Manuel's IEP from November 2006 until the January
2007 amendment and AFFIRM the award of 15 hours of compensatory education.
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