Opinion
Case No. 2:20-cv-00195-JAD-BNW
2022-11-30
AAA, a minor, BY her next friends and parents, Amir ABDUL-ALIM and Hafsa Elarfaoui, and on their own behalf, Plaintiffs v. CLARK COUNTY SCHOOL DISTRICT, et al., Defendants
Amir Abdul-Alim, Las Vegas, NV, Pro Se. Hafsa Elarfaoui, Las Vegas, NV, Pro Se. Phoebe V. Redmond, Clark County School District, Office of the General Counsel, Las Vegas, NV, for Defendants Clark County School District, Shelbie Coyne.
Amir Abdul-Alim, Las Vegas, NV, Pro Se. Hafsa Elarfaoui, Las Vegas, NV, Pro Se. Phoebe V. Redmond, Clark County School District, Office of the General Counsel, Las Vegas, NV, for Defendants Clark County School District, Shelbie Coyne.
Order Granting the Clark County School District's Second Motion for Summary Judgment
[ECF No. 522] Jennifer A. Dorsey, United States District Judge
Pro se plaintiffs Amir Abdul-Alim and Hafsa Elarfaoui initiated this suit against the Clark County School District, the Nevada Department of Education (DOE), and various administrators and teachers in their official capacities for events arising from the public-school education of their daughter, AAA. In a previous order, I disposed of the claims against DOE and the various administrators and teachers and narrowed this case to the claims that the District violated the Individuals with Disabilities Act (IDEA) and section 504 of the Rehabilitation Act by (1) delaying implementation of AAA's 2019 individualized education plan or (2) depriving her of a free, appropriate, public education (FAPE) during the 2018-19 school year. I gave the remaining parties—plaintiffs and the District—one more opportunity to file dispositive motions to address those claims. The District then filed its second motion for summary judgment, arguing that the undisputed facts show that the District provided AAA with a FAPE. I grant the District's motion because, although the District may have procedurally violated the IDEA, the record establishes without genuine dispute that the violation did not significantly impede the plaintiffs' parental participation or deprive AAA of a FAPE.
I find this motion suitable for disposition without oral argument. L.R. 78-1.
Background
A. Facts relevant to plaintiffs' IDEA and IDEA-related claims
AAA is a student at a public school within the District. Before kindergarten, the District determined that she was eligible for special-education services under the IDEA's "[a]utism [s]pectrum [d]isorder" [ASD] category. In 2016, as AAA entered kindergarten, her parents asked the District to evaluate her for hearing loss. The District reevaluated AAA and determined that she was eligible for services under the IDEA's hearing-impairment category. It also reassessed her for autism and determined that she no longer qualified under the ASD category. The District created an individualized education plan (IEP) for her kindergarten year to provide services for her hearing impairment. The District conducted additional assessments and observations in early 2017 in order to formulate AAA's 2017-18 IEP.
AR 850 (impartial hearing officer Oldenburg's decision). The issues raised in prior due-process hearings are not at issue in this order because they were dismissed under my prior order. Nonetheless, I occasionally quote the record from those hearings to provide relevant background.
AR 851.
AR 1935-55 (2016 Reevaluation Report).
Id.
AR 1955, AR 1957, AR 1958-59; AR 1759-76 (AAA's 2016-17 IEP).
AR 1961-74 (AAA's 2017-18 IEP).
At the beginning of the 2018-19 school year, dissatisfied with AAA's academic progress in years prior and doubting the District's decision to change AAA's eligibility category, plaintiffs requested an independent educational evaluation (IEE) at the District's expense and filed a due-process complaint under Nevada's IDEA hearing procedures. The District granted the IEE request, and the parents chose to have the evaluation conducted by Dr. Rachel Davis. AAA's father signed a consent to the release of AAA's protected health information, to expire "at the completion of therapy." Dr. Davis conducted various assessments, observed AAA on multiple occasions, and transmitted her report to the District on January 15, 2019.
AR 2118 (the District letter granting IEE request); AR 485 (parents' letter requesting due-process hearing).
AR 2118.
ECF No. 507-5 at 2 (signed Consent for Transmission of Protected Health Information form).
AR 1295 (Dr. Davis's testimony from administrative hearing).
AAA's 2017-18 IEP was set to expire on November 2, 2018, and the District was required to review and make adjustments to it for the 2018-19 school year by November 3, 2018. But the District delayed that process while Dr. Davis conducted the IEE and because it believed that the parents' due-process complaints and their refusal to participate in the IEP process prevented it from moving forward with a revised plan. Once the District received Dr. Davis's report, it delayed further because AAA's parents refused to have any further assessments completed by school officials as part of the IEP review process and because their due-process complaint was still pending. Because of that delay, AAA remained on her 2017-18 IEP throughout the majority of her 2018-19 school year. The District eventually created a new IEP in May 2019, weeks before the end of the school year.
See AR 1961 (2017-18 IEP noting IEP review date); see also 34 C.F.R. § 300.324(b)(1) (requiring districts to review a child's annual IEP).
See AR 2198 (IHO Ashley's findings of fact).
See AR 2090 (letter from AAA's father in which he refused to meet with school officials to discuss reevaluation and stated "I do not need another IEP done on my daughter by you or any affiliate of" the school); AR 2093 (October 2018 letter declining evaluations until IEE is completed and AAA's due-process complaints had "gone through the appropriate channels").
See AR 2226-27.
Id.
B. Plaintiffs' IDEA due-process complaints
In October 2018, plaintiffs filed their first due-process complaint on AAA's behalf, challenging the 2016 reevaluation and the adequacy of her 2017-18 IEP. The case was assigned to Impartial Hearing Officer (IHO) Victoria Oldenburg. In December 2018, IHO Oldenburg issued her determination that the change to AAA's eligibility category from autism-spectrum disorder to hearing impairment was appropriate, the District properly notified AAA's parents of the reevaluation and properly informed them of the procedural safeguards available during the reevaluation process, and AAA received a FAPE during the 2017-18 school year. The parents also raised issues concerning AAA's 2018-19 year, but the IHO did not consider them because the parties "were working toward a resolution." The parents appealed, and State Review Officer (SRO) Joyce Eckrem upheld IHO Oldenburg's decision.
AR 846.
Id.
AR 863-69.
AR 847 n.2.
AR 972-82.
Plaintiffs filed a second due-process complaint in February 2019 but withdrew it that April. They then filed a third due-process complaint alleging that the District violated the IDEA when it failed to obtain their parental consent to view Dr. Davis's IEE report and when it delayed implementation of AAA's 2018-19 IEP. The case was assigned to IHO Elizabeth Ashley, who ruled on numerous pre-hearing disputes and presided over a three-day hearing. In September 2019, IHO Ashley issued a decision finding that the District did not violate the IDEA. As relevant here, she concluded that the school's 122-day delay of the IEP after it received Dr. Davis's IEE did not deprive AAA of a FAPE and that the parents' contention that their participation in the IEP process was impeded was meritless. Ashley made detailed findings concerning AAA's academic progress throughout the year, noting that the District continued to provide AAA with services and that she performed "at or above the average for other second-grade students." Plaintiffs appealed IHO Ashley's decision, and SRO Perry Zirkel determined that the District's decision to postpone revising the IEP in the latter half of AAA's second grade year was likely a procedural IDEA violation but did not result in the deprivation of a FAPE or significantly impede the parents' ability to participate in the IEP process.
AR 1412-30.
Plaintiffs moved to disqualify Ashley, to subpoena Dr. Davis to testify at the hearing, and to compel production of additional documents from the District. Ashley denied the first request, granted the second in part, and denied the third. AR 1613-23; see also AR 985-1405 (due-process hearing transcript).
AR 2221-44.
Id.
AR 2227.
AR 2426.
C. Procedural history and plaintiffs' remaining claims
Plaintiffs' second-amended complaint alleges violations of the IDEA, the Family Educational Records Privacy Act (FERPA), the Americans with Disabilities Act, 42 U.S.C. § 1983, § 504 of the Rehabilitation Act, and other statutes and regulations against the District, the DOE, various school administrators who evaluated or taught AAA, and the judges and administrators involved with plaintiffs' due-process complaints. All of the defendants filed dispositive motions, resulting in the dismissal of all claims against the DOE and the individual defendants. The only claims to survive were plaintiffs' IDEA and § 504 claims against the District related to AAA's 2018-19 FAPE and her delayed IEP. But because of the breadth of this case and the complexity of the docket, I gave the parties an additional opportunity to more specifically address those claims with dispositive motions. The District took that opportunity and now moves for summary judgment on those remaining claims, arguing that AAA's 2017-18 IEP provided her with a FAPE during the 2018-19 school year and that the delayed implementation of her revised IEP was permitted under the IDEA's "stay put" requirement.
ECF No. 420.
ECF No. 434; ECF No. 435; ECF No. 446; ECF No. 458; ECF No. 507.
ECF No. 521.
Id. at 40.
Discussion
A. IDEA standards
1. FAPE and IEP requirements
"The IDEA provides states with federal funds to help educate children with disabilities if they provide every qualified child with a FAPE that meets the federal statutory requirements." Schools that accept IDEA funds must maintain "policies and procedures ensuring that a 'free appropriate public education' is available to all children with disabilities between the ages of three and twenty-one." To provide its students with a FAPE, a state must first identify children who have suspected disabilities. Those children then "must be evaluated and assessed" so that the school district can determine the special-education services that will address the child's individual needs. If the school district determines that the child is eligible for services, a team consisting of the child's parents, evaluators, administrators, and teachers creates the child's IEP, which is "a written document that states the child's present levels of academic achievement and functional performance, creates measurable annual goals for the child, describes the child's progress toward meeting the annual goals, and explains the services that will be provided to the child to help [her] advance toward attaining [her] particular goals."
Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 882 (9th Cir. 2001).
Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1110 (9th Cir. 2016) (quoting 20 U.S.C. § 1412(a)(1)(A)).
Id. (citing 20 U.S.C. §§ 1412(a)(7), 1414(a)-(c)).
Id. at 1111 (citing 20 U.S.C. § 1414(d)(1)(A)).
2. Requirements for IDEA compliance
"[A] state must comply both procedurally and substantively with the IDEA." The statute grants parents the procedural right to participate in IEP meetings; to " 'examine all relevant records' relating to their child's 'identification, evaluation, and educational placement[;]' as well as 'to obtain an independent educational evaluation' of their child if they disagree with what the school district or state agency has found." Parents also have "the right to challenge an IEP in state administrative proceedings and, ultimately, in state or federal court." "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 FAPE." The IDEA's substantive component requires an IEP to be "reasonably calculated to enable a child to mark progress appropriate in light of the child's circumstances."
M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 644 (9th Cir. 2005).
Id. (quoting 20 U.S.C. § 1415(b)(1)(A)).
K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1095 (9th Cir. 2013).
Timothy O., 822 F.3d at 1118 (cleaned up).
Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 1002, 197 L.Ed.2d 335 (2017).
3. Standard of review
In an IDEA suit, a district court must "receive the records of the administrative proceedings, . . . hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence," grant appropriate relief. The court is limited to reviewing "for procedural compliance with the statute" and to determining "whether the program is reasonably calculated to enable the child to receive educational benefits." Courts reviewing state-agency determinations give "due weight to the state administrative proceedings" and "particular deference to thorough and careful administrative findings."
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995).
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010).
B. The District likely violated the IDEA when it delayed revising AAA's 2018-19 IEP.
Plaintiffs contend that the District procedurally violated the IDEA when it chose not to implement a new IEP at various points throughout AAA's 2018-19 school year. While the parents argue that the District should have revised AAA's IEP at the beginning of the year to comply with IDEA regulations, they simultaneously concede that they did not consent to a revised IEP until they were able to obtain an independent evaluation—which the school received in January 2019. They also argue that the District should have immediately begun the IEP process in January when it received the IEE but improperly waited 122 days to do so. The District argues that it was not permitted to proceed with an IEP reevaluation during that year because the parents refused to participate until an IEE had been completed, and the fact that AAA's parents filed multiple due-process complaints with the state triggered the IDEA's "stay[-]put" requirement, thus preventing it from revising AAA's IEP while those complaints were pending.
Compare ECF No. 524 at 19 (stating that plaintiffs "did not make any agreement with [the District] concerning holding AAA's IEP") with ECF No. 524 at 19 (stating that AAA's father "decided that [the District] can hold the IEP after it receives the IEE report").
Plaintiffs' first due-process complaint was pending from October 10, 2018, through February 4, 2019. They filed their second complaint on February 14, 2019, and withdrew it in April. They filed their third complaint on April 23, 2019, and the IHO issued her determination that September.
1. The delay to January 2019 was not a violation.
The District's contention that it could not start the IEP revision process at the beginning of the year because it believed that AAA's parents refused to participate until the IEE had been completed has merit. The record establishes that AAA's father stated in repeated, unequivocal terms that he would not participate in IEP meetings until an IEE was conducted. While a school district cannot excuse procedural noncompliance by blaming "unreasonably demanding or litigious parents," the Ninth Circuit has also recognized that there are occasions on which a district is "confronted with the difficult situation of being unable to meet two distinct procedural requirements of the IDEA, in this case parental participation and timely annual review of the IEP." In those situations, courts in this circuit must "allow the agency reasonable latitude" to determine "which course of action promotes the purposes of the IDEA and is least likely to result in the denial of a FAPE." Because it appears that the parents insisted that the District wait to revise AAA's IEP until an IEE could be conducted, and because the law of this circuit requires this court to give the District reasonable latitude to determine whether to forge ahead with the IEP process without parental participation or delay revisions until parental participation can be achieved, I find that the District did not procedurally violate the IDEA when it delayed its annual review of AAA's IEP until at least January 2019 when AAA's parents agreed to participate with the benefit of an IEE.
The IHO limited her review to the 122-day delay between the District's receipt of the IEE and the date it released AAA's IEP. To the extent that the plaintiffs now contend that any earlier delay violated the IDEA, that claim appears unexhausted. But the District does not oppose the argument on that ground, so I assume without deciding that the issue is exhausted.
See, e.g., supra note 14.
Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1057 (9th Cir. 2012).
Doug C. v. Hawaii Dept. of Educ., 720 F.3d 1038, 1046 (9th Cir. 2013); see also 34 C.F.R § 300.324(b)(1) (stating that school districts must "review[ ] the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved").
Id.
2. The second half of the delay likely violated the IDEA.
The 122-day period between the receipt of AAA's IEE and the release of AAA's final IEP, however, presents a closer call. The District relies solely on the contention that the IDEA's "stay[-]put" requirement prevented it from updating AAA's IEP because her parents' due-process complaints were pending for most of that time. The IDEA's stay-put regulation states that, "during the pendency of any administrative or judicial proceeding regarding a due[-]process complaint notice requesting a due[-]process hearing, unless the [s]tate or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement." The Ninth Circuit has explained that the stay-put order requires only that a school district not change the child's "educational placement" and that "a change in educational placement relates to whether the student is moved from one type of program—i.e., regular class—to another type—i.e., home instruction" or "when there is a significant change in the student's program even if the student remains in the same setting."
See ECF No. 522 at 15-16.
Anchorage Sch. Dist., 689 F.3d at 1057.
But a stay-put order does not "excuse [a school district] from its responsibility to have a statutorily compliant IEP in place . . . ." The Ninth Circuit has held that "updating an eligible student's present level of academic achievement and functional performance and establishing corresponding goals and objectives does not qualify as a change to a student's educational placement, so long as such revisions do not involve changes to the [child's] academic setting . . . or constitute significant changes in the student's educational program." The District does not acknowledge this Ninth Circuit precedent in its motion and thus does not explain why it chose to treat the stay-put requirement as an absolute bar to revising AAA's IEP during the 2018-19 school year. It does not contend that any IEP revision would have included a change to AAA's academic setting or a significant change to her educational program and thus could not be carried out under the stay-put regulation at an earlier time. So the District has not shown that the delay did not procedurally violate the IDEA. But this procedural violation does not entitle the plaintiffs to relief on this claim because the record shows without genuine dispute that this violation did not result in the denial of a FAPE for AAA.
Id. at 1056.
Id. at 1057.
C. Any procedural error was harmless because AAA received a FAPE in the 2018-19 school year.
1. Plaintiffs' objections to the IHO and SRO proceedings are without merit.
Both IHO Ashley and SRO Zirkel found that AAA received a FAPE under her 2017-18 IEP during the 2018-19 school year. Plaintiffs urge me to disregard those conclusions, arguing that the IHO improperly (1) prevented them from receiving an accurate copy of AAA's entire record, (2) limited the scope of Dr. Davis's testimony, and (3) prevented AAA's aunt—a former special-education teacher within the District—from advising the plaintiffs during the hearing. Plaintiffs argue that those determinations violated the IDEA and state regulations and resulted in an IHO determination that was based on an incomplete picture of AAA's academic progress. And because the SRO's determinations relied on the IHO's findings of fact to determine that AAA had received a FAPE, the parents contend that his decision should also not receive deference.
See AR 2239; AR 2426.
ECF No. 524 at 4-6.
Id. at 7.
Id.
a. Document disclosure
Plaintiffs fail to point to any evidence that the IHO acted improperly or in violation of the IDEA or state regulations. The IHO considered the parents' request for the production of AAA's "entire educational record" and determined that she "ha[d] no authority to compel the District to produce [AAA's] entire record which would, in any event, be irrelevant to the issues raised in the pending due[-]process complaint." She also noted that the remedy for the parents' concerns would be to file a complaint under the Family Educational Rights and Privacy Act with the DOE. Plaintiffs have failed to show why this assessment was wrong or what relevant records they believed were missing from their review. And, indeed, the record is rife with student records from the year in question. Although plaintiffs insist that there should have been more assessments and progress reports, this argument misses the mark because it merely impugns the failure to perform more assessments; it does not show that they were performed but not disclosed. So I will not discount the IHO or SRO's determinations for any perceived nondisclosure of student records.
AR 1618.
Id.
See generally AR 1913-2158.
See ECF No. 524 at 8-9.
b. Limitation of Dr. Davis's testimony
Plaintiffs' argument that the IHO erred when she limited Dr. Davis's testimony is also without merit. In the parents' due-process complaint, they contended that the District violated the IDEA when it received Dr. Davis's IEE before it obtained their consent to do so. The parents requested that the IHO issue a subpoena to compel Dr. Davis to testify in the due-process hearing, and the IHO granted that request, with limitations. She determined that Dr. Davis was "a fact witness as to the issue of parental consent for the dissemination of the IEE report" and could be compelled to testify on that topic, but because AAA's father "had stated clearly that he has no objection to the findings of the IEE report . . . , the substance of the report [and] Dr. Davis's expert opinions regarding her evaluation of the student are irrelevant" and would not be discussed at the due-process hearing. The parents objected to the IHO's decision, contending that Dr. Davis should be able to testify concerning AAA's "disability categories" and "the standard level of care she needs for her educational success." The IHO reiterated that, because the parents did not dispute the adequacy of the IEE report, Dr. Davis's opinions expressed in that report were irrelevant. She also noted that the parents were not disputing AAA's 2018-19 IEP—which incorporated Dr. Davis's findings—so "the adequacy of the current IEP could not possibly be the subject of the pending . . . matter as it did not exist at the time the complaint was filed."
See ECF No. 521 at 30-32.
AR 1414. I dismissed the plaintiffs' claims concerning whether the District needed consent to obtain the IEE in my previous order, finding that the plaintiffs failed to identify any law or legal theory that required the District to obtain such consent and that Dr. Davis did indeed obtain AAA's father's consent to share her findings with the District. ECF No. 521 at 31-32.
AR 1601.
AR 1609.
AR 1619.
Id.
Plaintiffs fail to point to any particular portion of the IHO's reasoning that was erroneous or contrary to the IDEA. They argue that Dr. Davis's IEE opinions were relevant because they "confirm[ ]ed [AAA's] ASD and ADHD diagnos[e]s" and imply that the District should have been providing services consistent with those diagnoses even before Dr. Davis completed the IEE. But plaintiffs fail to address the IHO's reasoning that, because those opinions were not available to the District for the majority of the school year, they were irrelevant to whether the District provided a FAPE during that time. And Dr. Davis's diagnoses and opinions, which indicate that behavioral-support services may benefit AAA, were not relevant to whether AAA nevertheless received a FAPE in the absence of those specific services—AAA's records and the testimony of her teachers were sufficient to establish whether AAA was provided services that met her academic needs. So I do not discount the IHO's findings because she limited Dr. Davis's testimony.
c. Assistance by AAA's aunt
Plaintiffs' third contention—that the IHO prevented them from having AAA's aunt assist with the due-process hearing—is plainly inaccurate. The record reflects that AAA's aunt was permitted to sit with and advise AAA's father throughout the due-process hearing. The IHO merely prevented the aunt from "ask[ing] questions of witnesses or address[ing] opposing counsel or [the IHO]" because doing so would be engaging in the unauthorized practice of law. Nevada regulations allow parents to be "represented by counsel" and "accompanied by and advised by persons who have special knowledge of or training regarding the problems of pupils with disabilities." The IHO properly appreciated the distinction between these two roles and allowed AAA's aunt to accompany and advise, but not represent, plaintiffs. So plaintiffs have failed to demonstrate that the IHO's procedural rulings diminish the weight of her findings and conclusions.
AR 1000.
2. The record supports the state agency's determinations that AAA received a FAPE.
Even assuming that the District's decision to delay implementation of a revised IEP between January and May 2019 procedurally violated the IDEA, any such error was harmless because the record supports the state agency's determination that AAA nevertheless received a FAPE under her 2017-18 IEP. The IHO determined that the use of AAA's 2017-18 IEP for the 2018-19 school year was sufficient to meet her unique needs, as demonstrated by her above-average performance in the classroom. The SRO agreed with the IHO's findings and did not conduct his own written analysis of AAA's academic performance.
See AR 2426.
I find that the determinations of the IHO and SRO were "thorough and careful" and thus give those determinations "particular deference." The IHO found that, "during the 122 days between the issuance of the IEE report and the preparation of a new IEP, . . . the District continued to provide special education services" to AAA. The IHO summarized witness testimony and progress reports indicating that AAA "performed academically at or above the average for other second[-]grade students, . . . achieved remarkable growth during the period in question in overcoming a hearing impairment, . . . made great gains in speech pathology, . . . and was generally attentive and focused in the classroom and did not suffer from behavioral challenges during the period in question." So the IHO concluded that "the services provided to [AAA] . . . met the required beneficial standard [and] were tailored to [her] specific needs, and that [AAA] was not deprived of a FAPE by the District's delay in revising the IEP."
SRO Zirkel focused on the fact that any procedural violations did not substantively impede parental participation in the IEP process. He did not address whether the District demonstrated that its 2017-18 IEP allowed AAA to make progress in the 2018-19 school year. But the IHO extensively discussed AAA's progress throughout that year and found that she received a FAPE. I give due weight to the IHO's determination, along with my independent review of the entire record in this case.
AR 2227.
AR 2228.
Id.
Plaintiffs call into question the records and testimony that the IHO and SRO relied on to find that the district provided AAA with a FAPE. They contend that the district failed to provide "proof/evidence of its methodology to improve AAA's MAPs scores, nor factual evidence of their progress monitoring between quarterly benchmarking periods with evidence that measures 'academic progress' in biweekly[ ] or weekly assessments." The crux of their criticism appears to be that, because the school district did not conduct regular assessments to monitor AAA's real-time progress, it was error to rely on the testimony of AAA's teachers and school administrators, all of whom stated that AAA was making progress toward her goals and was an above-average student when compared to her peers in the general-education program.
ECF No. 524 at 7.
A careful review of the hearing testimony and the voluminous student records in this case reveals no such error. Plaintiffs point to no IDEA regulation, state law, or District policy that requires some specific assessment beyond those that formed the record in this case. The District elicited competent testimony on the progress reports that were produced, which verified that those reports were done quarterly or biannually for all students. Between those assessments, AAA's teachers monitored her progress through graded daily assignments and observations in class. While such informal monitoring may not satisfy AAA's parents, they fail to show how it doesn't satisfy the IDEA.
See, e.g., AR 1102-1115 (testimony of AAA's second-grade teacher concerning progress reports and monitoring).
An independent review of the record only confirms the IHO's findings that AAA received a FAPE. At the due-process hearing, the district's witnesses (AAA's principal, teachers, audiologist, and speech pathologist) uniformly noted that AAA was performing well in second grade, that she did not suffer from behavioral challenges beyond the average second grader, and that the services that she was provided were meeting her needs. AAA's grades and progress reports—with the exception of one low assessment score in math and a report noting that she was at risk of not meeting the district's reading program's requirements—demonstrate that she was generally performing well. The witnesses attested that those exceptions were not indicative of her overall academic performance. So I find that the record establishes without genuine dispute that the District provided AAA with a FAPE under the IDEA during the 2018-19 school year.
See, e.g., AR 1080-99 (Principal Sonya Holdsworth's testimony); AR 1102-23 (general-education teacher Armine Darmandjian's testimony); AR 1175-85 (teacher-of-record Markos Stoumbis's testimony); AR 1322-34 (audiologist Patricia Moisan's testimony); AR 1338-42 (speech pathologist Jeanine Baldis's testimony).
See generally AR 2041-66.
See supra note 79.
Plaintiffs also appear to raise a § 504 FAPE claim predicated on the same substantive violations they advance for their IDEA claim. The Ninth Circuit has clearly held that, "[b]ecause a school district's provision of a FAPE under the IDEA meets [§] 504 FAPE requirements, a claim predicated on finding a violation of the [§] 504 FAPE standard will fail if the IDEA FAPE requirement has been met." Plaintiffs fail to raise any arguments implying that their § 504 FAPE claim stands apart from their IDEA claim. So because plaintiffs have failed to show that the District substantively violated the IDEA, I grant summary judgment in the District's favor on both the IDEA and § 504 claims and affirm the SRO's determination.
See ECF No. 524 at 28 (noting that § 504 "requires the [District] to provide a FAPE to each qualified student with a disability"). In their response to CCSD's second summary-judgment motion, plaintiffs also reiterate their § 504 discrimination and ADA claims. Id. at 29. But those claims were dismissed in my previous order, so I focus only on plaintiffs' § 504 FAPE claim. See ECF No. 521 at 28.
See K.M. ex rel. Bright, 725 F.3d at 1099.
Conclusion
IT IS THEREFORE ORDERED that the Clark County School District's renewed motion for summary judgment [ECF No. 522] is GRANTED and the School Resource Officer's Determination is AFFIRMED. Because this order resolves all remaining claims, the Clerk of Court is directed to ENTER JUDGMENT in favor of the Clark County School District and CLOSE THIS CASE.