LARRY ALAN BURNS, District Judge.
Poway Unified School District challenges the decision of an Administrative Law Judge that K.C., a deaf student, is entitled to "word-for-word" transcription services under the Individuals with Disabilities Education Act. It is the District's position that "meaning-for-meaning" transcription is sufficient.
The Individuals with Disabilities Education Act, or IDEA, requires that "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). The Supreme Court defined the contours of a "free appropriate public education," or FAPE, in Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Rowley is still controlling, even though IDEA has been amended multiple times since it was decided. "The proper standard to determine whether a disabled child has received a free appropriate public education is the... standard set forth by the Supreme Court in Rowley." J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir.2010). It is critical, then, to be clear on the Supreme Court's holding in Rowley.
The Court began by looking directly at the IDEA statute and finding that a FAPE "consists of educational instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child `to benefit' from the instruction." Rowley, 458 U.S. at 188, 102 S.Ct. 3034. The Court then noted that it is access to education, not so much the substance of the education received, that matters. Id. at 192, 102 S.Ct. 3034. Indeed, "the Act imposes no clear obligation upon recipient States beyond the requirement that handicapped children receive some form of specialized education." Id. at 195, 102 S.Ct. 3034. This "specialized education" need not provide disabled students with "every special service necessary to maximize [their] potential," but rather a "basic floor of opportunity" and "some educational benefit." Id. at 199-200, 102 S.Ct. 3034. So long as a disabled student is able to benefit educationally from a school, that school has provided her with a FAPE. Id. at 203, 102 S.Ct. 3034.
The other major piece of IDEA, in addition to the FAPE requirement, is the Individualized Education Program, or IEP. This is a collaborative effort of the school system and the disabled student's parents, and the process by which a student's FAPE is conceived. See Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). IDEA requires that all disabled students receive an IEP, 20 U.S.C. § 1414(d)(2), and it must include, among other things, "a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child." 20 U.S.C. § 1414(d)(1)(A)(i)(IV). The IEP must be "reasonably calculated to enable the child to receive educational benefits." R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1121 (9th Cir.2011) (quoting N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1207 (9th Cir.2008)).
If parents are dissatisfied with their child's IEP, they may seek an administrative hearing, referred to as an "impartial due process hearing," pursuant to 20 U.S.C. § 1415(f). And after that hearing, any aggrieved party can bring a civil action in state or federal court. 20 U.S.C. § 1415(i)(2).
On May 18, 2009, an IEP was convened to discuss K.C.'s transition from middle
An Administrative Law Judge with the Office of Administrative Hearings heard testimony on four days in December and found for K.C.: "[T]he District failed to provide Student a FAPE in the May 18-June 9, 2009 IEP by its failure to provide her with CART in English, Geometry, Biology, and Health classes." (AR 132.) The District was ordered to provide K.C. with CART services immediately. (AR 134.)
The ALJ summarized the law applicable to K.C.'s demand for CART and, in the Court's view, got it mostly right. He explained that "[i]n resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district's proposed program." (AR 131 (citing Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir.1987).) He further explained that "[a] school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the child." (AR 131.) The ALJ also gave significant attention to Rowley and explained that "the IDEA does not require school districts to provide special education students with the best education available or to provide instruction or services that maximize a student's abilities." (AR 131.) He continued, "school districts are required to provide only a `basic floor of opportunity' that consists of access to specialized instructional and related services which are individually designed to provide educational benefit to the student." (AR 131-132.) This is all true.
The Court is mildly troubled, however, by the attention the ALJ gave to California special education law without recognizing that it "does not set a higher standard of educating individuals with exceptional needs than that established by Congress under the Individuals with Disabilities Education Act." Cal. Educ.Code § 56000(e). The closest he came was to say "California law creates specific state standards to address the needs of deaf students, including the obligation to provide the pupil with equal opportunity for communication access that must be considered within the Rowley standard." (AR 132.) It is hard to know whether the ALJ actually and improperly relied on California law in reaching his decision, however, because in the "Determination of Issue" section of his
Looking past the manner in which the ALJ relied upon California law in ordering the District to provide K.C. with CART, the Court finds that the ALJ applied a higher FAPE standard than the one he recognized was articulated in Rowley. Rather than focus on the adequacy of TypeWell and whether the District's offer would provide K.C. with a "basic floor of opportunity" and "some educational benefit," the ALJ appears to have considered the relative merits of TypeWell and CART and required the transcription service that would benefit her more. He cited the testimony of K.C.'s middle school science and math teacher that CART "would be most beneficial" to her, and the testimony of this teacher and another that K.C. "would benefit greatly from CART."
In fairness, the ALJ does suggest at the end of his decision that there is something categorically inadequate about TypeWell, wholly apart from the relative superiority of CART. Specifically, he held that due to the density of communication in K.C.'s high school classes and the nature of those classes, TypeWell would deprive her of access to instruction. (AR 134.) This analysis is still slightly off. The "access" Rowley concluded a FAPE must guarantee is access to education, not particular levels of instruction. Indeed, "in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Rowley, 458 U.S. at 192, 102 S.Ct. 3034. "Congress expressly recognize[d] that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." Id. (internal quotations omitted).
In addition to the above, the Court is also concerned that the ALJ failed to heed the Supreme Court's holding in Rowley that an IEP "should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204, 102 S.Ct. 3034. His factual findings included "[K.C.] does well academically" and "[K.C.] continued to do well during the eighth grade and received trimester grades for social studies of B-, B, and B; language arts of B, A-,
Finally, while the ALJ referenced all of the accommodations provided to K.C., he appears to have factored only the transcription service offered into the FAPE analysis. In addition to meaning-to-meaning transcription, K.C.'s IEP called for preferential seating in her classrooms, a second set of textbooks at home, copies of teachers' notes when necessary, closed captioning, and a peer note-taker in one of her classes. K.C. was also to be provided
The ALJ held a lengthy hearing in this case and worked his way through a dense factual record, and the Court respects his efforts. The Court finds, however, that he simply did not apply the "some educational benefit" standard set forth in Rowley. Instead, as the District suggests, he focused excessively on the relative merits of CART as compared to TypeWell and in so doing "required that the District offer a potential maximizing IEP to the Student." (Dkt. No. 23 at 21.) The ALJ's decision is therefore
The Ninth Circuit has held that "[s]tate standards that are not inconsistent with federal standards are also enforceable in federal court." W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (1992); see also Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.1994) ("State standards that impose a greater duty to educate handicapped children, if they are not inconsistent with federal standards, are enforceable in federal court under IDEA."). That is also the rule in other circuits. See, e.g., Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1155 (10th Cir.2008) (holding that 20 U.S.C. § 1407 "requir[es] state regulations to conform to federal law, but allow[s] the possibility for state regulations not required by federal law"); Stephen C. v. Radnor Tp. Sch. Dist., 202 F.3d 642, 647 (3d Cir.2000) (holding that under IDEA "federal law incorporates state standards, and a school district may violate the IDEA if it fails to satisfy the more stringent state law requirements") (internal quotations omitted); Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th Cir.1999) ("When a state provides for educational benefits exceeding the minimum federal standards set forth under Rowley, the state standards are thus enforceable through the IDEA."); Doe By and Through Doe v. Bd. of Educ. of Tullahoma City Schools, 9 F.3d 455, 457 (6th Cir.1993) ("In this, and other circuits, it is settled that even if a school district complies with federal law, it may still violate the [federal] Act if it fails to satisfy more extensive state protections that may also be in place.") (internal quotations omitted); Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 789 (1st Cir.1984) (holding that IDEA "incorporates by reference state standards, be they substantive or procedural, that exceed the federal basic floor of meaningful, beneficial educational opportunity").
But there are two wrinkles. The first, which the Court has already mentioned, is that California law expressly states it does not impose duties to accommodate greater than those imposed by IDEA. The second wrinkle is that the Second Circuit has held that a district court lacks jurisdiction over an IDEA appeal that turns solely on the interpretation of state law. See Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730 (2d Cir.2007). The question in Kain was whether a second grader with Attention Deficit Hyperactivity Disorder was entitled to a teacher's aide at the private school he attended. The parties agreed that under IDEA he was not. They disagreed, however, about the school district's obligations under New York's Education Law. The Second Circuit recognized that IDEA incorporates some state standards, but held that "assuming that IDEA incorporates the relevant New York Education Law, this does not provide an independent federal question that would sustain the court's jurisdiction." Id. at 734. To the contrary, "[t]he determination whether New York law compels the School District to provide the one-to-one aide at a parochial school is a question best left to New York courts." Id. at 735.
Tustin Unified Sch. Dist., in which the district court affirmed an ALJ's decision that a deaf student was not entitled to CART under IDEA, is similar to Poway Unified Sch. Dist. It is true, as K.C. argues, that the IEP at issue in Tustin Unified Sch. Dist. did not recommend any kind of transcription service, although the school district "raised the possibility of Type-Well" during the IEP process. Id. at *4. But again, the plaintiff's impairment was similar to that of K.C.'s, and the district court's finding certainly has some persuasive value in this case. "Most critically," the district court held, "the fact that CART services would `maximize' K.M.'s potential does not mandate the District to provide them so long as the District was providing sufficient accommodations for K.M. to offer her a reasonable educational benefit." Id. at *13.
In her opposition to the District's motion for summary judgment, she argues that "changes to IDEA since Rowley ... include an obligation to consider the communication needs of the student regardless of grades or other progress made at school" and she cites 20 U.S.C. § 1414(d)(3)(B)(iv) and Cal. Educ. Code § 56341.1(b)(4), which are basically identical. (Dkt. No. 24 at 10.) Section 1414(d)(3)(B)(iv) requires an IEP team to "consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode." None of that modifies or undercuts the Supreme Court's holding in Rowley that an IEP and personalized instruction should enable K.C. to "achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204, 102 S.Ct. 3034.
