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R. Z. C. v. Northshore School District

United States District Court, W.D. Washington, Seattle

October 27, 2017

R. Z. C., Plaintiff,


          Thomas S. Zilly United States District Judge.

         THIS 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.


         Plaintiff R.Z.C. (the “Student”)[1] 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”).

         Second, 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.

         The 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.[2] The District asks the Court to affirm the ALJ's decision and dismiss the Student's Section 504 claims for discrimination and retaliation.

         For the 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.


         The 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.

         In 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.

         Leading 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.

         The 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.

         The 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 weakness:[3]

• 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.

         Dr. 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.[4]“His writing disability appears limited to the underlying basics of handwriting and conventions.” Id.

         On 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 IEP.[5] 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.

         The District issued a Prior Written Notice on April 1, 2015, to implement the agreed upon amendments. The Notice stated in relevant part:

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 needs.

         AR 1162. The Notice gave the following reasons for the proposed amendments:

[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 report.

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 SLD.[6]

         On May 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.

         Pursuant 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.

         In May 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 1206.

         The 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.

         At the 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 education.[7]

         The 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.


         A. Standard of Review

         Count 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)).

         Recognizing 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.

         Count 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).

         B. Whether the ALJ erred in concluding that the District did not deny the Student a FAPE

         a. Legal Framework under the IDEA

         “School 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)).

         b. Level of Deference

         As a 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.

         The 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.

         Finally, 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.

         Comparatively, 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.

         In his opinion, the ALJ expressly noted any evidentiary shortcomings and detailed his analysis in weighing the available evidence in reaching his legal conclusions.[8]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 ...

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