Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-91-05350-RJB. Robert J. Bryan, District Judge, Presiding.
Before: Cecil F. Poole, Melvin Brunetti and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Poole.
The parents of an emotionally and learning disabled student, referred to as "Student W.," appeal from summary judgment for defendant Puyallup School District, No. 3 (hereinafter "District") and a denial of their request for attorney's fees. The parents brought suit under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., after their claims were dismissed by an administrative law Judge. They seek an injunction prohibiting the District from imposing its Special Education Suspension Guidelines (hereinafter "Guidelines"), an award of one and one-half years of compensatory education to make up for past failures to provide special education, and attorney's fees as the prevailing party below. We reject their claims and affirm.
On September 15, 1988, when Student W. was beginning seventh grade in the Puyallup School District, he was assessed for disabilities at the request of his parents. It was determined that he was learning disabled in math. In the 1988-89 school year, Student W. was enrolled in special education math at Kalles Junior High, and received behavior specialist services. He frequently had behavioral problems.
In March of 1989, Student W. was transferred to Ferrucci Junior High, also within Puyallup District, but remained there only a short time, as his behavioral problems continued. He was transferred back to Kalles, but educated in the resource room only.
Prior to the start of Student W.'s eighth grade year (1989-90), his family moved out of Puyallup School District, and into the Fife School District. However, the two districts agreed to allow Student W. to attend Edgemont Junior High in Puyallup District, since his family was planning to move back into the Puyallup District shortly. The school counsellor offered special education math, which Student W. and his mother declined. Student W. received no special education.
In late October 1989, the Puyallup District rescinded its agreement to allow Student W. into Edgemont due to his behavior problems. He was then enrolled at Surprise Lake Middle School in the Fife School District until the end of January, 1990. His parents then moved back into Puyallup, and enrolled Student W. at Edgemont. The school counsellor again offered a behavior specialist. Student W. declined the offered services. At that time, Student W. was fifteen years old. Student W.'s extreme behavior problems continued, and that spring he was suspended from April 13th until the end of the school year, June 14th, a loss of forty-five school days.
Student W. again switched districts for his ninth grade year (1990-91), beginning the year at Fife High School in the Fife School District. Again, his behavior was a problem, and in October, 1990, Fife rescinded its authorization for the transfer. Student W.'s mother attempted to enroll him in the Puyallup School District's alternative school (which does not take students who have been suspended). After a twenty-seven day delay during which Student W. did not attend school, his parents enrolled him again in Edgemont.
At no time during any of these transfers did Student W.'s parents request an assessment or special education classes.
On February 21, 1991, Student W. was suspended for thirteen days, and served three days before the balance was lifted after his attorney appealed. On February 25, 1991, Student W. was again suspended for the balance of the school year.
During the month of February, 1991, the parents of Student W. contacted an attorney and learned their son was still eligible for special education. On his advice, Mrs. W. requested a reassessment on March 1, 1991, and the implementation of the January 4, 1989 Individualized Education Program ("IEP") until the time of the reassessment. The W.'s attorney, by letter dated March 20, 1991, requested a due process hearing based on the following:
1. The District made a change of placement without proper notice to parents.
2. The District failed to properly identify the student's educational handicap as per the District assessment.
3. The District failed to make an annual review of placement of the student's progress as per his individual education program.
4. The District failed to initiate a re-assessment of the student's placement and eligibility when facts warranted such intervention.
Student W.'s long-term suspension was lifted. On March 28, 1991, he was suspended for five days, and on April 15 for four days, although he only served three. Student W. was thus suspended a total of eleven days in the spring of 1991.
On March 25, 1991, the plaintiffs informed the District that Student W. had been diagnosed as having Attention Deficit Hyperactivity Disorder ("ADHD").
On April 17, 1991 a multi-disciplinary team ("MDT") and the District's Director of Special Services determined that Student W. was eligible for special education, and recommended a self-contained classroom and counselling. They also ...