United States District Court, W.D. Washington, Seattle
R. Z. C., Plaintiff,
NORTHSHORE SCHOOL DISTRICT, Defendant.
S. Zilly United States District Judge.
MATTER comes before the Court on Plaintiffs' Motion for
Partial Summary Judgment, docket no. 13, and Defendant's
Cross-Motion for Summary Judgment, docket no. 16. Having
considered the motions, all pleadings filed in support of and
opposition to the motions, and the administrative record, the
Court GRANTS Defendant's Cross-Motion for Summary
Judgment, DENIES Plaintiffs' Motion for Partial Summary
Judgment, and enters the following Order.
R.Z.C. (the “Student”) brings two causes of action.
First, the Student seeks judicial review of an administrative
law judge (the “ALJ”) determination that: (1)
Defendant Northshore School District's (the
“District”) reevaluation of the Student was
appropriate or any defects did not deny the Student Free
Appropriate Public Education (“FAPE”); (2) the
District's decision to exit the Student from special
education pursuant to the reevaluation was legally correct;
and (3) the Student's parents did not carry their burden
of proving the District failed to implement the Student's
Individualized Education Program (“IEP”).
the Student claims damages under Section 504 of the
Rehabilitation Act of 1973 alleging that the District: (1)
denied the Student FAPE; (2) discriminated against the
Student; and (3) retaliated against the Student.
Student's Motion for Partial Summary Judgment, docket no.
13 (the “Motion”), is limited to the
Student's first cause of action. The Student asks the
Court to overturn the ALJ's decision and grant the
Student an Independent Educational Evaluation
(“IEE”). The District's Cross-Motion for
Summary Judgment, docket no. 16 (the
“Cross-Motion”), seeks summary judgment on all of
the Student's claims. The District asks the Court to affirm
the ALJ's decision and dismiss the Student's Section
504 claims for discrimination and retaliation.
reasons stated in this Order, the Student's Motion for
Partial Summary Judgment is DENIED. The District's
Cross-Motion for Summary Judgment is GRANTED.
Student has been a student within the District since
elementary school. AR 1184. Between fourth grade and ninth
grade, the Student qualified for special education services
under the Specific Learning Disability (“SLD”)
category in the area of Written Expression. AR 1477-79, 1493.
seventh and eighth grade, the Student received Specialized
Designed Instruction (“SDI”) in a general
education class co-taught by a general education and special
education teacher. AR 990, 427-28, 1445-46.
up to the Student's ninth grade year, on October 23,
2014, the Student's IEP team (comprising District
personnel) held a meeting with the Student's parents to
address an issue with the Student's school schedule. AR
1220-21. Because the Student's parents did not wish to
change his schedule, the Student would be unable to attend
the ninth grade co-taught English class. AR 993-94; AR
895-96. The District proposed giving the Student his written
language SDI in a general education class taught solely by a
general education teacher, with R.Z.C.'s special
education teacher providing limited consultation. AR 1464
(October 23, 2014, Prior Written Notice). The District
implemented the Student's revised IEP plan, in which the
Student's general education teacher focused on the
Student's IEP goals in her general education class with
10 minutes of special education support from his special
education teacher. AR 791, 793, 808-09, 1462.
District also suggested to reevaluate the Student to
determine whether he should be exited from the Section 504
Plan. AR 1464; AR 864-65, 882. While his parents initially
agreed, AR 997, 1185, 1222-23, they revoked their consent on
November 20, 2014. AR 999, 1222-23. Rather than complete the
revaluation, the parents requested that the District pay for
an IEE. Id. The District granted the parents'
request. AR 882-84, 1222-23.
requested IEE was conducted in January 2015 by clinical
neuropsychologist Dr. Jennifer Blair, PhD. AR 1125-36. Among
other evaluation procedures, Dr. Blair administered the
Wechsler Intelligence Scale for Children - Fifth Edition
(“WISC-V”), the Woodcock-Johnson III Normative
Update Tests of Achievement (“WJ-III”), and the
Test of Written Language-third edition (“TOWL”).
AR 1127. Her written report recited the following areas of
• On the WISC-V, the Student “earned a Full Scale
IQ of 98 (45th percentile, average range) and a
General Ability Index of 105 (63rd percentile,
average range). AR 1128. The corresponding WISC-V subtests
Dr. Blair performed identified difficulties with the
Student's memory and ability to rapidly copy
information-categories that the Student scored in the
“low average” on. AR 1129.
• On the WJ-III, the Student's “ability to
read quickly and efficiently (Reading Fluency) remain[ed] an
area of relative weakness . . . .” AR 1130. Dr. Blair
noted, however, that this did “not represent an area of
specific disability, per se.” AR 1130. The
WJ-III also identified certain writing skills-including
spelling, editing, and handwriting-as areas of weakness for
the Student. AR 1131.
• Likewise, the TOWL-3 uncovered the Student's
difficulties “with handwriting, spelling, punctuation,
and capitalization.” AR 1131. “On a measure of
math fluency, . . . [the Student] scored much lower than
expected. His ability to calculate and write down single
digit math facts was an area of weakness for him. When not
required to write down the math facts but to say them aloud,
[the Student] scored better . . . but still lower than
expected for his intellectual capacity.” AR 1132.
Blair concluded that the Student's “troubles with
writing meet Washington Administrative Code guidelines for a
Specific Learning Disability in the area of Basic Writing.
Disorders of written expression are sometimes referred to as
‘dysgraphia, ' a general term that includes
difficulties with fine motor control and handwriting,
spelling and conventions, grammar, and various disorders of
written expression.” AR 1134.“His writing disability
appears limited to the underlying basics of handwriting and
February 27, 2015, the Student's parents and their
attorney met with the Student's IEP team to review Dr.
Blair's IEE and amend the Student's
AR 1149- 65 (the 2015 IEP Amendment); AR 887. Among other
things, the IEP meeting considered the Student's
parents' concerns with his “writing, proofreading,
and editing skills, as well as his spelling and ability to
copy words down from the board in a classroom
situation.” AR 1153. At the meeting, the participants
amended the Student's present level of educational
performance, annual goals, and general education
accommodations. AR 1156, 1162; AR 875-76.
District issued a Prior Written Notice on April 1, 2015, to
implement the agreed upon amendments. The Notice stated in
We are amending [the Student's] IEP upon the completion
of his independent educational evaluation with Dr. Blair and
the team's discussion of changes to the accommodations,
as well as Parents' request to amend the annual goals in
light of Dr. Blair's findings of [the Student's]
strength in essay writing and struggles with grammar,
punctuation and spelling. We are also proposing a
re-evaluation to consider the results of the IEE and to
further evaluate fine motor skills and assistive technology
1162. The Notice gave the following reasons for the proposed
[Dr. Blair's] assessment resulted in average scores in
reading and math, and written expression but noted areas of
concern in basic writing, math fluency and handwriting. Based
upon the updated assessment information, we are recommending
some changes to [the Student's] current IEP and we are
also recommending a re-evaluation based upon the concerns in
fine motor skills. We are also going to consider the need for
assistive technology as per previous recommendations of the
IEP team and further recommendation in Dr. Blair's
Id. The Notice did not evaluate the suitability of
any of Dr. Blair's testing or otherwise suggest any
shortcomings in her analysis. It also did not discuss whether
the areas of concern identified by Dr. Blair fell within the
“Written Expression” category of
8, 2015, the Student's parents and IEP team met to review
the District's reevaluation results. AR 1184. As planned
in the IEP amendments, the results included a review of Dr.
Blair's assessments, the Student's academic history
and performance, and reports and recommendations from various
District personnel who conducted additional
assessments-including the Student's school occupational
therapist, Janet Prendergast, and school psychologist Jacque
Ter-Veen. AR 1180-1201.
to the IEP team's review of the Student's data, the
District concluded that R.Z.C. did not meet the eligibility
criteria and no longer qualified for special education
services because his areas of weakness did not adversely
impact his general education classes. AR 1186 (citing Dr.
Blair's evaluation). Notwithstanding this decision, the
evaluation team determined that the following accommodations
might be helpful: 1) additional time on assignments and
tests; 2) a calculator; 3) a change in class setting for test
taking; 3) no loss in credit for spelling/grammar errors in
writing; 4) use of a classroom computer to produce essays and
pieces of written work expected to be over a paragraph long,
if requested; 5) provided with a hard copy of notes to copy
from when class is taking notes from the whiteboard; 6)
access to a laptop; and 7) use of word-prediction or
voice-to-text software. AR 1187.
2015, the District began developing a written “Section
504” plan for the Student “based on the
recommendations made in [the Student's] comprehensive
reevaluation.” Declaration of Elizabeth Methot, docket
no. 22 (“Methot Decl.”), at ¶¶ 2, 6-7.
At his parents' request, District personnel met with the
Student to help set up a laptop and Co:Writer program
discussed in the Section 504 plan. AR 836-39; AR 1780- 99.
The Student completed the school year on June 17, 2015. AR
Student began high school in the fall of 2015, where he was
enrolled in a full schedule of general education classes
selected by the Student and his parents the previous spring.
Methot Decl., at ¶ 5; Declaration of Lisa Carson, docket
no. 18 (“Carson Decl.”), at ¶ 4, Ex. J. The
Student's class load was supported by his Section 504
plan, which was administered by the Student's high school
counselor. Carson Decl., at ¶ 4-5. The Section 504 plan
called for technology to assist the Student with
self-editing, spelling, grammar, and handwriting.
Id. at Ex. B. In response to the Student's
parents' requests and teacher input, the District
modestly amended the Section 504 plan in January 2016 to
allow the Student to submit assignments in writing or online.
Id. at Ex. D.
start of the 2015 school year, the Student's parents
asked the District to reimburse certain expenses incurred for
private services secured for the Student by the Student's
parents. AR 1841-43. The District declined and, instead,
referred the Student's parents to Ms. Carson to review
the Section 504 plan. AR 891-92. The parents declined and,
instead, filed an IDEA administrative hearing request against
the District on October 19, 2015. AR 1337; AR 362-66. The
essence of the parents' request was a challenge to the
District's decision to exit the Student from special
District filed a due process hearing request in January 2016
to defend its May 8, 2015 reevaluation. AR 294-95. The Office
of Administrative Hearings (OAH), on behalf of the Office of
Superintendent of Public Instruction (OSPI) consolidated the
requests and held a four day hearing on January 19-22, 2016.
AR 273; AR 2-27. Administrative Law Judge (“ALJ”)
Matthew D. Wacker heard testimony from twelve witnesses (AR
1, 4) and issued 56 Findings of Fact and 43 Conclusions of
Law. See AR 2-27. The ALJ found that the Student had
not met his burden on any claims. Specifically, the ALJ found
that the May 8, 2015, reevaluation was appropriate, that any
defects in the May 8, 2015, reevaluation did not deny the
Student a FAPE, and that the District's decision to exit
the Student from special education was legally correct.
See AR 2-27. This lawsuit followed.
Standard of Review
One-Petition for Review of Administrative Action under the
IDEA: The Court's review of the ALJ decision
under the IDEA is a “mixture of discretion and
deference.” J.S. v. Shoreline Sch. Dist., 220
F.Supp.2d 1175, 1184 (W.D. Wash. 2002) (citing Ojai
Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th
Cir. 1993)). The Court must give “due weight” to
the ALJ's findings, but the due weight given is within
the Court's discretion. Ms. S. ex rel. G. v. Vashon
Island Sch. Dist., 337 F.3d 1115, 1126 (9th Cir. 2003).
Two factors the Court should address in exercising its
discretion are (1) the thoroughness of the administrative
findings of fact and conclusions of law; and (2) whether the
ALJ's findings are based on credibility determinations of
live witness testimony. J.S., 220 F.Supp. at 1184
(citing Capistrano Unified Sch. Dist. v. Wartenberg,
59 F.3d 884, 891 (9th Cir. 1995); Amanda J. ex rel.
Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877,
887-89 (9th Cir. 2001)). “The Court gives deference to
an ALJ's decision ‘when it evinces his or her
careful, impartial consideration of all the evidence and
demonstrates his or her sensitivity to the complexity of the
issues presented.'” J.W. v. Fresno Unified Sch.
Dist., 626 F.3d 431, 438-39 (9th Cir. 2010) (quoting
Cty. of San Diego v. California Special Educ. Hrg.
Off., 93 F.3d 1458, 1466 (9th Cir. 1966)).
the administrative agency's expertise, the Court
“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.”
Ms. S. ex rel. G., 337 F.3d at 1126 n.16 (quoting
Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,
1311 (9th Cir. 1987)). The Court reviews the ALJ's legal
conclusions de novo. Id. at 1127 (citing
Clyde K. v. Puyallup Sch. Dist. No. 3., 35 F.3d
1396, 1401 (9th Cir. 1994); Seattle Sch. Dist., No. 1, v.
B.S., 82 F.3d 1493, 1499 (9th Cir. 1996); Amanda
J., 267 F.3d at 889 n.11). Although mixed questions of
fact and law are also reviewed de novo, “when
the question is primarily factual, a more deferential
approach is appropriate.” S.J. v. Issaquah Sch.
Dist. No. 411, No. C04-1926RSL, 2007 U.S. Dist. LEXIS
67735, at *4 (W.D. Wash. Sept. 12, 2007) (citing R.B. v.
Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th
Cir. 2007)). The party challenging the ALJ's decision
bears the burden of proof. Id.
Two-Section 504: The remaining claims under Section
504 are subject to the normal summary judgment rules. The
Court should grant summary judgment if no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A fact is material if
it might affect the outcome of the suit under the governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Once the moving party meets its initial burden,
the burden shifts to the non-moving party to present
“significant probative evidence” supporting their
claims. Richards v. Neilson Freight Lines, 810 F.2d
898, 902 (9th Cir. 1987). While “all justifiable
inferences” are to be drawn in favor of the non-moving
party, id. at 255, when the record, taken as a
whole, could not lead a rational trier of fact to find for
the non-moving party, summary judgment is warranted.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citations omitted).
Whether the ALJ erred in concluding that the District did not
deny the Student a FAPE
Legal Framework under the IDEA
districts may deny a child a free appropriate public
education [FAPE] by violating either the substantive or
procedural requirements of the IDEA.” Timothy O. v.
Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1118 (9th
Cir. 2016) (citing M.M. v. Lafayette Sch. Dist., 767
F.3d 842, 852 (9th Cir. 2014)). “A school district
denies a child a free public education by violating
IDEA's substantive requirements when it offers a child an
IEP that is not reasonably calculated to enable the child to
receive educational benefits.” Id. (citing
J.W. ex rel. J.E.W., 626 F.3d at 432-33). “The
school district may also, however, deny the child a free
appropriate public education by failing to comply with the
IDEA's extensive and carefully drafted procedures.”
Id. (citing Doug C. v. Hawaii Dep't of
Educ., 720 F.3d 1038 (9th Cir. 2013)). “While some
procedural violations can be harmless, procedural violations
that substantially interfere with the parents'
opportunity to participate in the IEP formulation process,
result in the loss of educational opportunity, or actually
cause a deprivation of educational benefits ‘clearly
result in the denial of a [free appropriate public
education].'” Id. (quoting Amanda J.
ex rel. Annette J. v. Clark Cty. Sch. Dist., 267 F.3d
877, 892 (9th Cir. 2007)).
Level of Deference
threshold matter, the parties dispute what level of deference
should be given to the hearing officer's decision.
Without specifying any of the ALJ's conclusions, the
Student argues that “[t]he hearing officer completely
omitted discussion of considerable factual evidence that
contradicts his findings.” Motion at 7. In support of
this argument, the Student cites to five pages of testimony
(in the approximately 1900 page administrative record) that
the Student claims the hearing officer failed to consider.
Id. But a close reading of the administrative record
demonstrates that this evidence doesn't actually conflict
with the ALJ's findings when examined in context.
Student goes on to state that the hearing officer failed to
consider “evidence that the District itself considers
basic writing skills as a component to Written
Expression.” Id. at 7-8. But again, the
Student does not point to any place in the ALJ decision where
these alleged failures somehow rendered his conclusions
erroneous. The mere fact that the Student's general
education teacher, Ms. Sutton, previously gave the student
special education focused on conventions and mechanics does
not undercut the IEP's determination that the Student no
longer needed any SDI. The Student's position erroneously
ignores large parts of the decision making process leading up
to the 2015 reevaluation.
the Student cites to Hawaii v. Rita L. for the
proposition that a hearing officer must explain his
credibility determinations. No. 14-00034 DKW-RLP, 2014 U.S.
Dist. LEXIS 173034 (D. Haw. Dec. 15, 2014). Glaringly, the
Student does not identify any evidence that is actually in
conflict. To the extent any evidence does conflict, it is
immaterial to the key issues in dispute. This is in stark
contrast to Hawaii, where the conflicting pieces of
evidence and the credibility assessments made by the hearing
officer were of “critical importance” to
“her ultimate findings.” Id. at *16.
the record shows that the ALJ heard testimony from the
members of the Student's IEP team and the District
personnel that had observed the Student in the classroom
setting. The testimony transcripts demonstrate that the ALJ
actively participated in questioning the witnesses and
seeking clarification on points of confusion.
opinion, the ALJ expressly noted any evidentiary shortcomings
and detailed his analysis in weighing the available evidence
in reaching his legal conclusions.Nothing in the record
suggests that the ALJ's findings were not impartial or
that he was in any way insensitive to the complexity of the
issues presented. Instead, the ALJ's findings relating to
each of the material issues on appeal appear careful,
thorough, and well-reasoned. See generally AR 5-14
(Findings of Fact); AR 14-26 (Conclusions of Law). Absent any
real evidence to the contrary, and in ...