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M.M. v. Lafayette Sch. Dist.

United States Court of Appeals, Ninth Circuit

September 16, 2014

M.M.; E.M., individually and on behalf of their minor son C.M., Plaintiffs-Appellants,
LAFAYETTE SCHOOL DISTRICT, a local educational agency; LAFAYETTE BOARD OF EDUCATION, Defendants-Appellees. M.M.; E.M., individually and on behalf of their minor son C.M., Plaintiffs-Appellants,

Argued and Submitted, San Francisco, California November 5, 2013.

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Appeal from the United States District Court for the Northern District of California. D.C. No. 3:10-cv-04223-SI, D.C. No. 3:09-cv-04624-SI. Susan Illston, Senior District Judge, Presiding.


Individuals with Disabilities Education Act

Affirming in part and reversing in part the district court's judgment, the panel held that a school district's failure to provide educational testing data to parents violated the procedural requirements of the Individuals with Disabilities Education Act and prevented the parents from meaningfully participating in the creation of their son's individualized education program, thereby denying him a free appropriate public education under the IDEA.

The panel held that the school district did not fail to properly incorporate " Response-to-Intervention" or " RTI" testing data into the student's initial evaluation. The school district did, however, violate the IDEA by failing to insure that the RTI data was documented and carefully considered by the entire IEP team and failing to furnish the parents with the data, thereby making it unable for them to give informed consent for both the initial evaluation and the special education services their son received. The panel held that this procedural violation denied the student a FAPE because it seriously infringed his parents' opportunity to participate in the IEP formulation process.

The panel did not reach questions of whether the resulting IEPs were reasonably calculated to enable the student to receive educational benefits, whether the school district otherwise procedurally violated the IDEA, or whether an assessment of the student was otherwise appropriate. In light of its holding that the student was denied a FAPE, the panel remanded for reconsideration of whether the parents were entitled to reimbursement for the cost of private instruction.

Addressing issues concerning two earlier proceedings before the Office of Administrative Hearings, the panel affirmed the district court's conclusion that the parents' claim for reimbursement of the cost of an evaluation was moot. The panel held that the parents were not denied due process in the first OAH proceeding. The panel affirmed the district court's determination that two of the three claims raised in the second OAH proceeding were time-barred.

The panel affirmed the dismissal of claims against the State of California Department of Education for failing to properly oversee the OAH proceedings and for staying its investigation.

The panel affirmed in part the dismissal of retaliation claims under § 504 of the Rehabilitation Act and remanded for the district court to consider one claim in the first instance.

The panel remanded for reconsideration the issue of the parents' request for attorneys' fees under 20 U.S.C. § 1415(i)(3)(B).

Judge Rawlinson dissented from the majority's holding that the school district failed to provide the student a FAPE and from the reversal of the award of attorneys' fees. She wrote that no procedural violation of the IDEA was committed by the school district because the RTI assessments were not a mechanism used to identify students in need of special education. Judge Rawlinson also disagreed that the district court failed to address one Rehabilitation Act claim. She wrote that she would affirm the district court's judgment in its entirety.

Lina Foltz, Oakland, California, for Plaintiffs-Appellants.

Amy R. Levine (argued), Dannis Woliver Kelley, San Francisco, California; Louis Leone, Stubbs & Leone, Walnut Creek, California, for Defendants-Appellees Lafayette School District and Lafayette Board of Education.

Amy Bisson Holloway, General Counsel, Edmundo Aguilar, Assistant General Counsel, and Leonard Garfinkel (argued), Deputy General Counsel, California Department of Education, Sacramento, California, for Defendants-Appellees California Department of Education and Jack O'Connell.

Before: Sidney R. Thomas and Johnnie B. Rawlinson, Circuit Judges, and Kevin Thomas Duffy, Senior District Judge.[*] Opinion by Judge Thomas; Dissent by Judge Rawlinson.


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THOMAS, Circuit Judge:

In this appeal we consider, among other matters, whether a school district's failure to provide educational testing data to parents violated the procedural requirements of the Individuals with Disabilities Education Act, 20 U.S.C. § § 1400-1487 (" IDEA" or " Act" ). We conclude that it did. We also conclude that the failure to provide the data prevented the parents from meaningfully participating in the creation of his individualized education program (" IEP" ), thereby denying their son a free appropriate public education (" FAPE" ) under the IDEA.


These consolidated appeals arise out of three administrative complaints and three district court lawsuits concerning the educational opportunities provided to C.M., a child who has been identified as an individual with learning disabilities. C.M.'s parents, M.M. and E.M., appeal from the district court's decision to affirm the Office of Administrative Hearings (" OAH" ) judge's conclusion that the Lafayette School District's (the " District" ) did not violate the IDEA.

During the 2005-2006 school year, the District implemented a new Response-to-Intervention (" RTI" ) approach to assist struggling learners in the general education program. The District used RTI as an intermediate step before referring a student for special education placement. Reading Specialist Carol Harris conducted " universal assessments" of all students in kindergarten through third grade three times each school year, which included the Slosson Oral Reading Test (" SORT" ) and the Dynamic Indicators of Basic Early Literacy Skills (" DIBELS" ) test. District staff then came together after each assessment period to discuss each student's results to " pinpoint children that need support beyond . . . general instruction," to guide the intervention--or additional instruction--the child would then receive, and to monitor the progress the student made in response to the implemented intervention. These meetings were called " Assessment Wall" meetings, and they were attended by Principal Mary Maddux, Instructional Support Teacher (" IST" ) Jane Jones, Reading Specialist Harris, and the general education teachers from each grade level. The complete RTI assessment results and related graphs were not given to parents.

That same year, C.M. began kindergarten at Lafayette Elementary School when he was six years old. Through RTI, the District identified C.M. as in need of reading intervention and began providing him additional instruction, which continued throughout his kindergarten year and into the following summer via a special summer class. Specifically, C.M.'s DIBELS results during his kindergarten year placed him at benchmark in Phoneme Segmentation Fluency but below benchmark in Initial Sound Fluency, Letter Naming Fluency, and Nonsense Word Fluency. His kindergarten report card indicated some areas in reading and writing where he met grade level standard and some areas where he was approaching grade level standard.

In first grade, C.M. continued to receive reading intervention. In October, his parents submitted a written request to the District to perform an evaluation of C.M.

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for learning disabilities. The District convened two Student Study Team (" SST" ) meetings with the parents in November and February before referring C.M. for the special education evaluation. The SST meeting notes referenced in narrative form C.M.'s difficulties, the parents' and teachers' concerns, and the interventions he was receiving. C.M.'s RTI data graphs were not reviewed during the SST meetings, and the February meeting notes reference only his mid-year SORT score and his overall DIBELS Strategic rating, which denotes a below benchmark rating.

The District eventually completed a special education Assessment Plan on February 20, 2007, and on that same day obtained E.M.'s consent to move forward with the initial evaluation. The District conducted the evaluation in March and April, which included an educational readiness assessment by IST Jones and intellectual development and developmental history assessments by School Psychologist Intern Michelle Charpentier. Although the Assessment Plan also included social/emotional and motor/perceptual development assessments those assessments were not performed.

The District emailed the assessment results to C.M.'s parents on April 17, 2007, and held the first meeting of C.M.'s IEP team the following day. Based on the evaluation, the IEP team, which included the parents, determined C.M. was eligible for special education because he had a phonological processing disorder.[1] A phonological processing disorder is one subset of an auditory processing disorder and relates specifically to the phonemic awareness pillar of reading,[2] which " refers to a person's ability to detect and access the sound structure of language." Based on this eligibility determination, the IEP team developed an education program in which C.M. would begin participating in the school's Instructional Support Program (" ISP" ), receiving instruction in language arts from IST Jones for 45 minutes a day, four times a week, to help him with his difficulties in reading and writing. The IEP team meeting lasted approximately 30 to 45 minutes.

C.M. participated in the ISP for the remainder of his first grade year, and at the end of the year, his DIBELS results placed him above benchmark in Phoneme Segmentation Fluency but below benchmark in Nonsense Word Fluency and Oral Reading Fluency. His first grade report card indicated he was below grade level standard in reading and approaching grade level standard in writing.

In second grade, C.M. continued to participate in the ISP. In late November, his parents obtained a private evaluation from Doctor of Audiology Dimitra Loomos. Dr. Loomos's evaluation revealed that C.M. had a central auditory processing disorder (" CAPD" ) that was related to his learning disability. Auditory processing " is defined as the execution and coordination of specific auditory mechanisms in an interactive manner . . . that allows the central nervous system to detect, decode, synthesize and interpret auditory information."

Similar to the DIBELS assessment, C.M. demonstrated good phonemic awareness as well as good auditory discrimination,

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auditory closure, auditory figure/ground ability, and auditory attention. Conversely, C.M.'s performance showed " a deficit for integrating auditory information within the central auditory nervous system. . . [and] in the ability to perform binaural separation of auditory signals."

Dr. Loomos explains in her report that " [b]ecause we view the world simultaneously through the individual senses, we are constantly working to fit all the pieces together in order to get the whole picture. If the central nervous system is not properly integrating the auditory input with other sensory input (visual, tactile, etc.), the child ends up with an incomplete puzzle . . . . Children displaying signs of poor integration skills on CAP tests may also demonstrate deficits in auditory-visual and/or visual-motor integration skills (e.g. writing, reading recognition, spelling, etc.)." Dr. Loomos made a number of recommendations for C.M. in terms of environmental modifications, direct interventions, and compensatory strategies.

C.M.'s second grade teacher, Jody Carson, was aware of Dr. Loomos's evaluation because she completed a report for Dr. Loomos, and E.M. gave a copy of the final evaluation report to Ms. Carson, IST Jones, and the school front desk when school resumed after the holiday break.

As of February, C.M.'s RTI SORT scores were declining. On March, 18, 2008, the District convened C.M.'s first annual IEP review meeting, and the IEP team developed a renewed IEP. However, the new IEP was not only identical to the previous IEP, it also failed to reference C.M.'s CAPD or provide for any modifications or accommodations to address his unique deficits. C.M.'s parents consented to the renewed IEP. About one week later, the parents received the final evaluation report for another private evaluation they obtained from Speech-Language Pathologist Deborah Swain, which found that C.M. " experiences a range from average ability to significant difficulty with specific skills of auditory-based language processing."

Thus, throughout the spring, the parents paid for C.M. to attend sound-based therapy, and conversations between E.M. and C.M.'s teachers were ongoing concerning C.M.'s CAPD and the recommendations contained in both evaluation reports. In May, an informal meeting was held at the parents' request to discuss C.M.'s need for a speech and language assessment and clarification of the IEP to address C.M.'s CAPD. No amendments were made to the IEP. By the end of his second grade year, C.M. scored Below Basic in language arts on a state standardized test, which was shared with his parents. His DIBELS results placed him below benchmark in Oral Reading Fluency. His second grade report card indicated he was below grade level standard in both reading and writing.

Three weeks into C.M.'s third grade year, on September 17, 2008, the District convened an interim IEP team meeting at the parents' request to discuss, inter alia, their concern over his lack of meaningful academic progress, the need for improved goals and objectives in the IEP, and amendments to the IEP to better address C.M.'s CAPD. At the meeting, the parents also advised the District that they disagreed with the 2007 Assessment results, and later that day they requested in writing an independent educational evaluation (" IEE" ) at the District's expense.[3] For

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two months, the District did not respond to the IEE request and instead sought the parents' consent to reevaluate C.M., but the parents did not consent and they did not withdraw their request for an IEE.

In December, the parents obtained an evaluation at their own expense by Licensed Psychologist Tina Guterman. Dr. Guterman's educational evaluation, which included a review of C.M.'s prior evaluations and background, found that C.M. had auditory processing weaknesses and severe dyslexia and that his IEP services were insufficient to meet his needs. Her report states that students with similar profiles as C.M. " make larger and more resilient gains through systematic immersion in a research based multi-sensory program delivered at a high level of intensity." Dr. Guterman made a number of recommendations for C.M.'s instructional program.

The parents subsequently withdrew C.M. from the ISP and enrolled him in an intense private reading and comprehension program that better addressed his multi-sensory integration deficits while they and the District continued to negotiate his IEP. The IEP team participated in a series of facilitated meetings over a period of seven months. The ...

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