Opinion
No. C 01-0537 SC
November 19, 2001
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiffs filed this action on February 1, 2001, alleging violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794, the civil rights protections of 42 U.S.C. § 1983 and 1988, and various provisions of the California Education Code, Cal. Educ. Code § 56000 et seq. This Court's jurisdiction is founded upon 28 U.S.C. § 1331 and 20 U.S.C. § 1415 (i)(2). Now before the Court is Defendant Menlo Park School District's Motion for Summary Judgment.
Neither the Department of Education nor State Superintendent of Public Instruction Delaine Eastin was served with the complaint.
II. BACKGROUND
This case is the culmination of an ongoing dispute between parents of two special-needs children and the school district in which they are enrolled. The papers filed with the Court, which include briefs on both sides and an administrative record, reflect vast amounts of time and energy invested by both the parents and the district in arriving at a solution to address these children's unique educational needs. No such solution has been reached, despite more than four years of effort. Today, this case sits in federal court where it must be addressed by an entity ill-equipped to pass judgment on educational policy and services. It appears Plaintiffs recognize this difficulty, for they have recast their dispute as a series of civil rights violations. While the Court may be better suited to address claims of this nature, unfortunately, Plaintiffs' attempt to repackage them still fails. We therefore affirm the holding of the hearing officer, and grant summary judgment on all other claims for the Defendant.
Milford and Noria Zasslow live in Menlo Park, California. Their two daughters, Sarah and Sylvia, are enrolled in the Menlo Park City School District ("District"), the only defendant served in this action. Sarah, the eldest daughter, has been diagnosed with Pervasive Development Disorder ("PDD"). Sylvia is autistic. The Court will address the factual background of each child's situation in turn.
A. Sarah Zasslow
At the time of the administrative hearing below, Sarah was a nine-year-old fourth-grader at Oak Knoll, an elementary school within the District. She has been eligible for special education since kindergarten because of her severe language disorder.
Sarah enrolled at Oak Knoll in the fall of 1996. Her parents claim that District personnel, including Sarah's teachers and the principal of Oak Knoll, Marilyn Franklin, sought to have her withdrawn from the school within days of her enrollment. Decl. of Noria Zasslow in Support of Pls.' Opp'n ¶ 2. ("Zasslow Decl.") The Zasslows later discovered that over the course of that year, several parents met at the school to discuss Sarah's placement in a "normal" classroom setting. Id. ¶ 3. Plaintiffs allege this meeting occurred with the support and approval of District employees. Id. When Sarah's parents refused to comply with its requests, they claim the District "engaged in a campaign of petty and severe retaliation designed to wear down [their] resistance to the District's plans to remove their children from Oak Knoll School." Id. ¶ 2.
Sarah was evaluated in the fall of 1996 by Jan MacKenzie, a District-employed speech and language therapist who Plaintiffs claim admitted to having no training in diagnosing or treating PDD or autism. Id. ¶ 4. Sarah's hearing was assessed by a school nurse, but because after several tries the hearing reports proved "unreliable," the Zasslows retained private hearing testing services. Id. ¶ 4; Id. at Ex. A.
Plaintiffs hired an independent behavioral analyst, Dr. Frank Marone, at their own expense because the District did not employ one and informed Plaintiffs it would take a month to hire one. Id. ¶ 6. Dr. Marone, a consultant with Behavior Training Associates ("BETA") recommended that the District implement a one-on-one instruction program for Sarah and that she not be "pulled-out" from a mainstream classroom. Id. ¶ 7.
Pull-out special education services occur outside of the normal classroom setting during the school day. When a child receives pull-out services, she misses regular class time.
District staff held an Individualized Education Plan ("IEP") meeting on November 7, 1996, at which they recommended that Sarah be removed to a San Mateo County Severe Disorders of Language ("SDL") class outside of the District. Id. ¶ 5. Plaintiffs claim they were unable to attend the meeting, and informed the District of their scheduling conflict in advance. Id. At a second meeting, on November 21, 1996, which the Zasslows attended, the recommendation was repeated. Id. ¶ 6. Despite their requests for information, Plaintiffs claim that the District was unable to inform them about the location of this alternative school. Id. Also at this hearing, Dr. Marone recommended one-on-one instruction for Sarah and that it be conducted in the classroom. Id. ¶ 7. The District rejected this recommendation initially, but, after a due process hearing and mediation, eventually consented to one-on-one, in-class services beginning in the fall of 1997. Id.
In May 1997, another IEP was held. According to the IEP report, Sarah had still not had a reliable hearing test, but Gail Piper, a county language teacher, noted that Sarah was making progress with her language skills. Zasslow Decl. at Ex. D. No changes were recommended by the IEP team, and Sarah's improvement continued into her first-grade year. Pl. Compl. at ¶ 13. Plaintiffs claim this improvement continued throughout the 1997-98 school year, and was due largely to the services of a BETA behavioral consultant in the classroom, and to her teacher's efforts. Zasslow Decl. ¶ 9.
According to Sarah's parents, she did not receive therapy from BETA during the 1998-99 school year, her second-grade year, on that organization's own advice. Id. ¶ 11.
An IEP was convened on May 10, 1999, at which it was reported that "great academic growth has been noted." Id. Nevertheless, Deedra Devine, the Director of Student Services for the District, recommended that Sarah undergo further speech and language testing in order to comply with a triennial assessment requirement. Id. Plaintiffs disagreed with the recommendation, citing the fact that two prior assessments had already occurred. Plaintiffs said they would agree to an assessment from an independent source, but the District refused and on May 17, 1999 said it would not fund an outside consultation. Id. at Ex. E. Both parties then filed for a due process hearing.
According to the District, Devine has since resigned her post and has moved out of the area. Finkelstein Decl. in Supp. of Def.'s Mot. for Summ. J. ¶ 4.
On September 14, 1999, Hearing Officer William Reyes issued a decision authorizing the District to use a provider of its choice to evaluate Sarah's speech and language proficiency within thirty days. Id. at Ex. G. Hearing Office Reyes noted in his opinion that the Zasslows' position that the District did not have "the right" to assess Sarah was unsupported by the law. Id. He also noted that Mrs. Zasslow testified that "she would not allow any District personnel to assess Sarah." Id. The Zasslows did not appeal this decision.
The evaluation occurred on November 8, 1999, and was conducted by Ms. Brandy Vierra of Peninsula Associates, a private provider chosen by the District. Id. ¶ 12.
Plaintiffs direct the Court's attention to the fact that the evaluation did not take place in the 30-day window required by Hearing Officer Reyes's ruling. Because, as discussed below, this allegation was not raised either within the one-year statute of limitations or at the administrative level, the Court will not address it.
The District notified Plaintiffs on January 5, 2000 that an IEP for Sarah would be conducted on January 31, 2000. Id. ¶ 13. Plaintiffs claim the District failed to honor their request for copies of any reports prior to the hearing. The Zasslows also requested in writing that the hearing be taped, but claim the tape they were provided with after the proceedings was inaudible. Ms. Vierra, who had by this time been hired by the District as a speech and language provider, prepared a second assessment on January 19, 2000. It is unclear whether Plaintiffs received this report before the IEP meeting.
Plaintiffs' request to submit additional evidence due to the malfunctioning of the taping device at the original hearing is granted.
At the January 31, 2000 meeting, the parties agreed that Sarah required at least two hours of speech therapy per week. Id. ¶ 14. The District refused Plaintiffs' request that the services be provided outside of the school day or within the classroom. Id. The District agreed to fund one hour per week through Peninsula Associates. It stated that it would only agree to provide the additional hour if an additional assessment was conducted by the San Mateo County Integrated SDL Program. Id. No mention was made of the District's own personnel. Id. Plaintiffs declined this offer and paid for the additional hour from Peninsula Associates themselves. They allege that they were not given any meaningful information about the County program, nor was anyone from the program in attendance at the meeting. Id.
Sarah began to receive one hour of speech and language therapy per week from Peninsula Associates, paid for by the District, which continued for the rest of the school year. Zasslow v. Menlo Park Elementary School Dist., SN 1323-00/1464-00 (California Special Hearing Office, Nov. 13, 2000) ("Zasslow Decl. Ex. L") at 3. On March 9, 2000, Pamela Vorce of Peninsula Associates assessed Sarah's speech and language abilities. Id. From March 9 until June 22, 2000, Sarah's parents provided an additional hour of therapy by Ms. Vorce at their own expense. Id.
In August 2000, the District hired Kimberly Robinson to perform speech and language therapy. At the hearing below, Ms. Robinson testified that she left Mrs. Zasslow a message that month, introducing herself and explaining that she was to begin providing speech and language services to the Zasslow children at the beginning of the school year. Id. at 8. She proposed a tentative schedule for both children. Ms. Robinson testified that Mrs. Zasslow returned her call and said she wanted to meet in person before allowing pull-out services for Sarah. Id. at 8-9. Mrs. Zasslow refused to permit the services to begin until she met Ms. Robinson. Id. at 9. They agreed to meet at Oak Knoll School on September 1, 2000 at 8:15 a.m. Id. Ms. Robinson testified that she arrived at the school at 7:30 a.m. and remained until 9:00 a.m. but that Mrs. Zasslow never arrived. Id. Mrs. Zasslow claims to have arrived at 8 a.m. and to have stayed until 8:10 or 8:15 a.m. Id. In any case, the meeting never took place.
Meanwhile, on July 20, 2000, Plaintiffs requested a due process hearing on reimbursement of the funds they had spent on Peninsula Associates. Zasslow Decl. ¶ 16. They also requested assurances that Peninsula Associations or another "acceptable" provider would be used in the 2000-2001 school year. Id. They agreed to take their request off of the August 10, 2000 hearing calendar after the District claimed to have a vacation-related personnel shortage. Id. On August 11, 2000, the District filed for its own due process hearing, requesting that Sarah be referred for assessment to the County Integrated SDL and that the District be allowed to use its own speech therapy providers to serve Sarah. Id. ¶ 17. Plaintiffs claim this request was inappropriate, since at that point in the proceedings, they had not received an assessment plan, nor had there been any indication that the assessments prepared by Peninsula Associates were inadequate. At the time of the administrative hearing, the issue had not yet been resolved and no plan was in place for the 2000-2001 school year.
The Court notes that in fact the parties had attempted to settle between the time Plaintiffs removed their item from the calendar and the District's subsequent filing. According to a letter to the Calendar Clerk from John Beiers, Deputy County Counsel for San Mateo County, Plaintiffs refused the District's settlement offer, thereby leaving the district "no choice but to file for a hearing." Unfortunately, the record has no page numbers, so the Court will do its best to provide an accurate citation. The letter, dated September 8, 2000, can be found in volume 2 of 2 in the pleadings and correspondence file from the administrative hearing.
The parties' due process hearings were consolidated and held on September 14 and 15, 2000 before Hearing Officer Maxine Benmour of the California Special Education Hearing Office ("SEHO"). At the hearing, Ms. Vierra testified that in her opinion Sarah should be pulled-out of class to receive one-on-one services. Zasslow Decl. Ex. L at 7-8. Ms. Piper testified similarly. Id. at 8.
Hearing Officer Benmour's decision was issued on November 13, 2000. She found for Plaintiffs on the issue of the District's obligation to provide two hours per week of speech and language therapy for Sarah, instead of the one hour she had been receiving. Officer Benmour also ordered the District to reimburse the Zasslows for funds expended on the extra hour from March 9, 2000 to June 22, 2000. Finally, the District's request that Sarah be reassessed by the SDL was denied. The Hearing Officer declined to award attorney's fees because she claimed to be unauthorized to do so under state law.
The Court presumes this is the time period from the date Plaintiffs hired Ms. Vorce until the end of the school year, but the record does not clarify when exactly the school year ended.
Plaintiffs did not prevail on every point, however. Hearing Officer Benmour ruled that the District was not required to hire a private provider, but could provide speech and language therapy with its own employees. She also ruled that these services could be provided on a "pull-out" basis. The hearing officer ordered the District to hold an IEP meeting within 15 days of her order. A notice was sent on November 22, 2000, announcing a hearing date of November 27, 2000 — the Monday after the Thanksgiving holiday. The Zasslows did not attend, claiming the notice provided was too short. The IEP meeting eventually occurred on January 31, 2001.
Since the fall term 2000, Sarah has received speech and language therapy at her parents' expense from Peninsula Associates, the same provider chosen originally by the District. At Sarah's most recent IEP in January 2001, the District refused to reimburse the Zasslows for private hearing tests and to fund speech and language services from Peninsula Associates. It is unclear from the record whether Sarah is also receiving two hours per week from a District-employed provider. It is also unclear whether the Plaintiffs' private provider meets with Sarah during or outside of class.
B. Sylvia Zasslow
The Zasslows' second child, Sylvia, is also disabled. In May 1998 Sylvia was evaluated by an independent consultant from Associated Learning and Language Specialists, which determined that she also suffers from severe language deficiencies. Zasslow Decl. ¶ 10. The District attempted to conduct its own evaluation, which Plaintiffs claim resulted in a paltry one-paragraph report due to the evaluator's inability to satisfactorily evaluate Sylvia's condition. Id. ¶ 10. Plaintiffs claim no attempt at follow-up was made, nor were Plaintiffs informed of their rights or relevant procedural safeguards. Id.
On May 4, 2000, Mrs. Zasslow wrote to the District to request information about arrangements for Sylvia's services for the school year beginning in September 2000. Zasslow Decl. at Ex. J. According to Plaintiffs, the District refused to respond to this request. Zasslow Decl. ¶ 15.
Plaintiffs' remaining claims as to Sylvia are scant and unsupported by detailed allegations. To date, the Zasslows claim that the District refuses to pay for Sylvia's therapy from Peninsula Associates, continues to insist that she be treated in a pull-out setting, has failed to provide services promised at an IEP and has undertaken unauthorized assessments.
C. Request for Relief
Plaintiffs request an injunction requiring the District to provide behavioral services and speech and language services at the public's expense, a preliminary injunction requiring the District to provide such services during the pendency of this action, compensatory damages and costs including attorney fees, reimbursement for speech and language therapy and behavioral therapy and compensation for emotional distress, a declaratory judgment that the District is not legally entitled to provide speech and language therapy solely through its own employees and that the District is not entitled to provide such services solely on a "pullout" basis outside the classroom and any other relief the Court deems just. Plaintiffs also demand a jury trial.
The District answered the complaint on March 5, 2001. It filed a Motion for Summary Judgment on October 5, 2001, requesting that the decision of the SEHO be upheld and that Plaintiffs' claims for damages be denied. This Motion is now before the Court.
III. LEGAL STANDARD
Summary judgment is proper only when there is no genuine issue of material fact and, when viewing the evidence in the light most favorable to the nonmoving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Cleary v. News Corp., 30 F.3d 1255, 1259 (9th Cir. 1994). Once a summary judgment motion is made and properly supported, the nonmoving party may not rest on the mere allegations of its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court is not to make findings of fact, but to perform a threshold inquiry to determine whether there exists any "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be in favor of either party." Anderson, 477 U.S. at 250.
IV. DISCUSSION
Plaintiffs' allegations fall into four broad categories: the Individuals with Disabilities Education Act ("IDEA"), the Rehabilitation Act of 1973, section 1983 and the California Education Code. The Court will first outline each set of claims.
Under the IDEA Plaintiffs allege that the District has: failed to provide a free appropriate education ("FAPE") by failing to pay for speech and language services provided to Sarah and Sylvia by Peninsula Associates; failed to provide a FAPE by refusing to pay for behavioral services provided to Sarah and Sylvia by BETA; failed to conduct an assessment in a timely manner as ordered by Hearing Officer Reyes, delaying services to Sarah; failed to prepare an assessment plan before demanding a further assessment for Sarah as a condition for providing speech and language services; retaliated against Plaintiffs for attempting to assert their rights; failed to conduct required hearing and vision tests; failed to provide notice of procedural safeguards prior to IEP's in 1996, 1997 and 1998, and failed to notify Plaintiffs of sources to contact to assist them with understanding their rights. Plaintiffs would like reimbursement for funds spent on special educational services and attorney fees, lost income from attending IEPs, mediations and due process hearings, plus emotional distress damages.
Plaintiffs next allege that the IDEA violations entitle them to compensatory and injunctive relief under 42 U.S.C. § 1983 and recovery of attorney fees and costs under 42 U.S.C. § 1988.
Under the Rehabilitation Act, Plaintiffs allege that the District and its employees and agents violated the Act by preventing Sarah and Sylvia from participating in the full benefits of the education available in the Menlo Park School District and by retaliating against Plaintiffs for attempting to assert their rights. Their damages claims are the same as for the IDEA violations.
Finally, Plaintiffs raise a number of claims under the California Education Code, Cal. Educ. Code § 56000 et seq. They claim that the District: violated § 56321 by failing to notify them and obtain their consent for assessment plans; violated § 56345(c) by failing to provide services agreed to in the IEP; violated § 56321(a) by failing to write an assessment plan in a timely manner; violated §§ 56205 and 56506(d) which require a FAPE for disabled students; violated § 56346 by failing to give the parents the right to refuse consent to specific programs offered by the District without prejudicing the child's right to other services; violated § 56045 by failing to hold a public hearing after receiving notice of noncompliance from the Superintendent; and retaliated against Plaintiffs for attempting to assert their rights.
Each set of allegations will be addressed in turn.
A. IDEA
According to the IDEA, states that receive federal funds under the chapter must provide a "free appropriate public education" ("FAPE") to children with disabilities. 20 U.S.C. § 1412 (a). A FAPE is defined as "educational instruction specially 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." Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982).
Under the comprehensive scheme outlined in the Act, a FAPE is effected through the implementation of an "individualized educational program" ("IEP") designed to meet a child's unique needs. 20 U.S.C. § 1414 (d). An IEP is prepared at a meeting between the local educational agency, the parents and the child's teacher and is detailed in a written document. The local agency must review a child's IEP at least annually and revise it to reflect any changes in the child's progress. 20 U.S.C. § 1414 (d)(4)(A).
The IDEA has extensive procedural protections aimed to preserve the rights of both the child and the parents in the IEP process. 20 U.S.C. § 1415 (a). Among these protections is the guarantee of a "due process hearing" at the local or state level following the filing of a complaint. 20 U.S.C. § 1415 (f). Any party aggrieved by the decision rendered in such hearing may file a civil action in federal court. 20 U.S.C. § 1415 (i)(2).
1. Exhaustion
In its Motion for Summary Judgment, Defendant argues that many of Plaintiffs' claims are barred by exhaustion requirements. The District alleges that under the IDEA, the Court only has jurisdiction over those issues addressed in Hearing Officer Benmour's November 13, 2000 decision. Plaintiffs argue that it would have been futile to pursue any further administrative review given the District's pattern of behavior toward them, thus the only available forum is federal court.
Plaintiffs are correct in asserting that the administrative exhaustion requirement embodied in the IDEA is not a rigid one. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1302-03 (9th Cir. 1992). In general, there are three situations in which failure to exhaust will be excused: where exhaustion is futile or inadequate, or where "an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law." Id. at 1303-04 (citing H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 (1985).
Because Plaintiffs have attempted to appeal their children's IDEA cases to varying degrees, the Court will address separately the exhaustion requirement as it applies to each.
a. Exhaustion of Sylvia's case
Plaintiffs do not dispute that Sylvia's IEP has never been reviewed by an administrative hearing officer. They claim to be exempt from the administrative exhaustion requirement because "there would be no point" given the District's past pattern of "misconduct." Pls. Opp'n at 14-15. Specifically, Plaintiffs allege that Sylvia has been subjected to mandatory "pull-out" services, has been forced to be served by District providers and has generally suffered from an abuse of the assessment process. The Court interprets these assertions to mean that Plaintiffs feel it would be futile to follow administrative channels of review because the District has adopted a pattern and policy of not following their interpretation of the IDEA's provisions.
The Ninth Circuit has emphasized the importance of agency review of individual cases under the IDEA. Hoeft, 967 F.2d at 1307. A plaintiff may not structure a complaint as a challenge to an educational agency's pattern or practice in order to avoid an exhaustion requirement unless the issues presented "rise to a truly systemic level in the sense that the IDEA's goals are threatened on a system-wide basis." Id. at 1305. The Ninth Circuit's reasoning is twofold: First, a court must have the benefit of agency expertise and a developed administrative record before it can ably conduct its own review. Id. at 1308. Second, local agencies must be given an opportunity to correct and investigate policies about which disabled children and their families complain. Id.
The Court finds the Hoeft's court's reasoning particularly relevant to Sylvia's case. As in Hoeft, the issues here "consist primarily of questions of substantive educational policy, issues which the administrative process was specifically designed to address." Id. at 1309. Put differently, they are not "truly systemic" in nature. Cf. Kerr Ctr. Parents Ass'n v. Charles, 897 F.2d 1463, 1469-70 (9th Cir. 1990) (holding that exhaustion is not required where agency refused to hold a due process hearing and "the problem posed by the legislature's failure to appropriate sufficient funds is not one which could have been effectively addressed through the administrative process"). Thus, because the claims that pertain to Sylvia have not yet been exhausted, the Court grants summary judgment for Defendant as to them.
b. Exhaustion of Sarah's case
Unlike Sylvia's case, Sarah's case has been the subject of state agency review. Specifically, the record reflects two due process hearings: a July 1999 hearing before Officer William Reyes and a September 2000 hearing before Hearing Officer Maxine Benmour. Zasslow Decl. Exs. G, L. Because a due process hearing must be appealed within 90 days, the Court need only address those issues raised in Officer Benmour's decision as no timely appeal was ever made from the decision issued by Hearing Officer Reyes. Cal. Educ. Code § 56505(i). But this does not end the exhaustion dilemma, for not all of the allegations raised in this Court were heard below.
In their complaint before this Court, Plaintiffs allege the District has failed to provide Sarah with a FAPE on many levels. They allege that the District: 1) failed to pay for speech and language services provided by Peninsula Associates; 2) failed to pay for behavioral services provided by BETA; 3) failed to conduct an assessment in a timely manner as ordered by Hearing Officer Reyes, thus delaying services to Sarah; 4) failed to prepare an assessment plan before demanding a further assessment for Sarah as a condition for providing speech and language services; 5) retaliated against Plaintiffs for attempting to assert their rights; 6) failed to conduct required hearing and vision tests; 7) failed to provide notice of procedural safeguards prior to IEP meetings in 1996, 1997 and 1998, and 8) failed to notify Plaintiffs of sources to contact to assist them with understanding their rights.
Not all of these issues were addressed at the hearing before Officer Benmour, however. There, Hearing Officer Benmour framed the issues as: 1) whether the District is entitled to refer Sarah to the County SDL Program for an assessment to determine whether she needs more services; 2) the level of speech and language services Sarah requires; 3) whether the District must provide services in the classroom; 4) whether the District must provide services through a private provider and 5) whether the Zasslows are entitled to reimbursement for private speech and language therapy services from January 1, 2000 to September 15, 2000 (the date of the hearing). Finally, Hearing Officer Benmour ruled that she did not have authority to award attorney fees.
It appears that of the claims alleged in Plaintiffs' complaint in this Court, only the first — whether private speech and language services should be paid for by the District — was addressed below. This raises serious exhaustion issues, which Plaintiffs' Opposition does not adequately address. The Court is left to assume that Plaintiffs' pattern and policy argument applies to the unexhausted issues in Sarah's case as well.
For the same reasons as outlined above, the Court will not entertain any claims that have not been through proper administrative review. The Court follows the letter of Hoeft, which requires individual allegations about substantive educational policy to be exhausted first in an administrative hearing. Hoeft, 967 F.2d at 1306. Thus the Court is only obligated to entertain those claims in Plaintiffs' current complaint that were specifically addressed in Hearing Officer Benmour's decision about Sarah's IEP, that is, the District's obligation to pay for a private service provider. But because Plaintiffs pepper their complaint with various allegations about the form the speech and language services should take, and this issue was addressed in the Hearing Officer's decision, the Court will undertake a review of the District's general obligations with respect to speech and language services.
c. The Merits
i. Standard of Review
As an initial matter, the parties debate the standard of review under which the Court should approach the Hearing Officer's findings. The District argues that the Court should give great deference to the decision below because state educational agencies know best how to apply educational policy to the merits of individual cases. Plaintiffs argue that the Hearing Officer's decision should be given little if any weight, pursuant to the IDEA's appeal provisions, which prescribe a "preponderance of the evidence" standard. 20 U.S.C. § 1415 (i)(2) (B).
The Ninth Circuit has recognized that a summary judgment motion in federal court arising from a disputed state educational agency decision "does not fit well into any pigeonhole of the Federal Rules of Civil Procedure." Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995). The court developed a hybrid review standard, which directs district courts to apply a preponderance of the evidence standard while looking at the record as a whole and any additional relevant evidence submitted by the parties. Id.; see also Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471-72 (9th Cir. 1993). The Wartenberg court decided that while a district court must "make an independent judgment," it must also give "due weight" to a hearing officer's findings. Wartenberg, 59 F.3d at 892; see also Adams v. State of Oregon, 195 F.3d 1141, 1145 (9th Cir. 1999) (recognizing that a court should "give due weight to the hearing officer's administrative proceedings and . . . not substitute [its] opinions of sound educational policy for those of the school authorities [it is] reviewing"). A court must be particularly deferential to a hearing officer's findings where they are "thorough and careful." Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
This holding comports with the IDEA's provision governing the procedure for district court review of an administrative hearing: "[T]he court shall (i) receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; (iii) and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415 (i)(2)(B). Plaintiffs argue they should be allowed to offer evidence beyond that which was submitted at the hearing below because the witnesses could not attend due to scheduling conflicts and also because the tape transcript was inaudible. Additionally, they claim not to have been given advance notice that the provision of "pull-out" services would be discussed at the hearing. Their request for permission to submit additional evidence is granted.
According to the Supreme Court, a district court's inquiry in suits brought under the IDEA's appeal provision rests on two questions: First, has the state complied with the provisions of the IDEA and second, was the IEP reasonably calculated to confer a meaningful educational benefit upon the child? Rowley, 458 U.S. at 206-07. In performing this inquiry, courts "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415 (i)(2)(B).
The Court notes that a FAPE "does not mean the absolutely best or `potential-maximizing' education." Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987). Rather, the IDEA provides a "basic floor of opportunity." Rowley, 458 U.S. at 201. The FAPE requirement is satisfied when a school provides "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Id. at 203.
With these standards in mind, the Court will undertake a review of the Hearing Officer's findings.
ii. Hearing Officer Benmour's Findings
Officer Benmour was presented with the following issues: 1) whether the District was entitled to refer Sarah to the County SDL Program for an assessment to determine whether she needed more services; 2) the level of speech and language services, in hours per week, Sarah required; 3) whether the District must provide services in the classroom or whether Sarah can be "pulled-out" for treatment; 4) whether the District must provide services through a private provider and 5) whether the Zasslows are entitled to reimbursement for private speech and language therapy services from January 1, 2000 to September 15, 2000 (the date of the hearing). Hearing Officer Benmour did not award attorney fees, although she acknowledged she believed she was without jurisdiction to decide the issue.
Officer Benmour found favorably for Plaintiffs on some of the issues before her. Specifically, she ruled that the District was not entitled to refer Sarah to the County SDL Program for further assessment, that the District was required to provide two, rather than one hour of speech and language services per week and that the Zasslows were entitled to reimbursement for expenses incurred in hiring a private provider from March 9, 2000 to June 22, 2000. Officer Benmour ruled against the Plaintiffs on the remainder of the issues. She found that the District could provide speech and language services with its own provider and that those services could be provided on a pull-out basis. The Court assumes Plaintiffs appeal these last two findings, and in addition, request that the reimbursement period be extend to reflect expenses incurred from January 2000 to September 2000 inclusive and that they receive attorney fees for the hearing. The Court will address each issue in turn.
(1) Pull-Out Services
Plaintiffs argued below that the District should be required to provide speech and language services in the classroom since Sarah's goal is to be in class at all times. The parents testified that they refused pull-out services on the advice of BETA, the agency that provides Sarah's in-class behavioral services. They now supplement their views with a declaration from Dr. Frank Marone, a state-licensed marriage and family therapist and certified private provider of behavioral services. Defendant objects to this declaration because Dr. Marone has not been verified as an expert.
Even given Plaintiffs' failure to verify Dr. Marone's qualifications as an expert in the area of speech and language services, the Court is not persuaded by his affidavit testimony. While it may be true that pull-out services may put children at a disadvantage in developing social language skills, the benefit they are sure to receive from the intensive instruction away from in-class distraction must also be considered.
Indeed, at the hearing, there was considerable evidence to contradict Dr. Marone's opinion. Sarah's third-grade teacher noted in a written report that "pull out for language" would benefit Sarah most because she is easily distracted when she receives speech and language help in the classroom. This opinion was echoed by Ms. Piper and Ms. Vierra. All three of these witnesses observed Sarah in the classroom, which led Officer Benmour to find their testimony most persuasive.
It is true that to the extent possible, the IDEA shows a preference for "mainstreaming" disabled children, that is, that they be taught in regular, not special educational settings. 20 § U.S.C. § 1412(a) (3). But it cannot be said that by providing Sarah with free, individualized speech and language instruction — even if it occurs outside of the regular classroom — the District is somehow depriving her of her rights under the IDEA. As the Supreme Court has cautioned, the IDEA provides a "basic floor of opportunity," Rowley, 458 U.S. at 201, not the most optimal situation. The Court finds that Officer Benmour's decision was supported by a preponderance of the evidence, and we affirm her finding that Sarah may be treated outside of class, on a "pull-out" basis, for speech and language therapy.
(2) Private v. District Provider
Plaintiffs argued below that because the District contracted with a private provider for speech and language services for the 1999-2000 school year, it should be required to continue to do so. Hearing Officer Benmour observed Plaintiffs' "long history of distrust" of District providers. But she noted that they "presented no evidence to support their contention that the District could not provide qualified speech and language therapists, other than hearsay comments and their own perceptions." Zasslow Decl. Ex. L at 8. Officer Benmour found to be credible the District's witnesses' testimony that for three years, Plaintiffs "consistently refused to approve of any speech and language therapist connected with the District or County." Id. She concluded, however, that there was "no evidence that the District does not have qualified speech and language therapists." Id. She found for the District, and held that it was allowed to provide speech and language services with its own employees.
The Court fully agrees. Plaintiffs have not submitted any credible additional evidence sufficient to raise a material issue of fact that the District's speech and language service providers are incompetent or unqualified. They direct our attention to the affidavit of another parent, Peggy Burwell, who claims that her own child was treated at the County SDL Program by a succession of providers all with different approaches. But this testimony does not address the competence or the qualifications of such providers. Plaintiffs ask the Court to consider the detrimental effect the District's staff turnover rate has on their daughter's progress. They contend that this denies their child the chance to develop a meaningful relationship with her aide.
For example, they draw the Court's attention to the fact that Ms. Robinson, who was to provide services in the 2000-01 school year, has since left the District.
The Court does not doubt that it would be better if the District could retain its staff. But an argument about staff turnover is very different from an argument that there is no one employed by the District at all that could competently offer a benefit Plaintiffs' child. The latter would support, the Court believes, for an IDEA violation. The former, however, does not. The Court's task is to ask whether the District has complied with the provisions of the IDEA and whether its attempt at compliance, the IEP, is reasonably calculated to confer a meaningful educational benefit upon the child. Rowley, 458 U.S. at 201. In this case, the Court answers its query in the affirmative on both issues. The District's inability to guarantee that Plaintiffs' children will always have the same provider does not rise to the level of an IDEA violation. The Court grants summary judgment to Defendant on this issue.
(3) Reimbursement
A court may order a school district to reimburse parents for expenses incurred in placing a child in a private special education setting when the school district failed to offer an appropriate alternative. Burlington Sch. Comm. v. Department of Educ., 471 U.S. 359, 369 (1985).
Hearing Officer Benmour found that Plaintiffs were entitled to reimbursement for the money they spent on a private provider for the extra hour of services it was determined Sarah required at her January 2000 IEP meeting. This entitlement presumably began on the date the IEP meeting was held: January 31, 2000. The record shows that Plaintiffs hired their own provider, Ms. Vorce, to provide the extra hour and that Ms. Vorce's service began on March 9, 2000. The record does not reflect when these services ended, but the Court assumes that they ended with the school year, on or about June 22, 2000. Thus the Court affirms the Hearing Officer's finding that the District must reimburse Plaintiffs for the amount they spent on the extra hour of services from March 9, 2000 to June 22, 2000. In their complaint, however, Plaintiffs request additional reimbursement to cover the entire period from January 2000 until September 2000, but because they provide no evidence as to how much was spent or to whom it was paid during these additional months, the Court will not consider their request.
In sum, the Court agrees with the Hearing Officer's findings that two hours of pull-out services provided by District personnel provides Sarah with a sufficient FAPE. The Court agrees further that Plaintiffs should be reimbursed for the funds they expended on the extra hour of service from March to June. Thus the Court affirms the Hearing Officer's findings, including her findings as to reimbursement. The Court grants summary judgment for the Defendant as to Plaintiffs' remaining IDEA claims.
d. Damages
Plaintiffs demand compensatory damages and injunctive relief. The question of whether compensatory damages are available under the IDEA is unsettled. Emma C. v. Eastin, 985 F. Supp. 940, 943 (N.D. Cal. 1997). The Emma C. court held that such damages are available. Id. at 945. But in so holding, it heeded the caution of the Seventh Circuit, which observed that the possibility of compensatory damages "may discourage educators from implementing innovative programs and may expose school district to additional financial liabilities that they can ill afford." Id. (citing Anderson v. Thompson, 658 F.2d 1205, 1213 (7th Cir. 1981)). Thus in Emma C., while the court was not yet faced with a damages issue directly, the case not having yet proceeded to trial, the court contemplated ordering compensatory damages that were tangible in nature; i.e., reimbursement for private educational expenses or compensatory damages for educational services beyond a child's age, instead of a "generalized pain and suffering" award. Id.
The Court agrees that tangible compensatory damages are most appropriate, and declines to award emotional distress damages. As noted above, Plaintiffs may obtain reimbursement for the money they spent hiring Ms. Vorce from March 9, 2000 to June 22, 2000.
e. Attorney Fees
Plaintiffs request attorney fees for due process hearings and IEP meetings. For reasons that are unclear to the Court, Hearing Officer Benmour did not decide the attorney fees question. The Court will now undertake an independent analysis of the availability of attorney fees in this case.
The IDEA provides that "[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C. § 1415 (i)(3) (B). The Ninth Circuit has held that district courts have jurisdiction to hear cases involving attorney fees under the IDEA even where liability is established in a proceeding outside of the district court itself. Lucht v. Molalla River Sch. Dist., 225 F.3d 1023, 1026 (9th Cir. 2000). A due process hearing qualifies as such a proceeding. Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 70 (9th Cir. 1996); McSomebodies v. Burlingame Elementary Sch. Dist., 897 F.2d 974, 975 (9th Cir. 1989).
Having established that attorney fees are available, the Court must next determine whether Plaintiffs prevailed below. "[A] prevailing party is one that `succeeds on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.'" Kletzelman, 91 F.3d at 70 (citations omitted). Put differently, a plaintiff prevails when "actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111 (1992). A plaintiff need not prevail on every issue, however; it is sufficient that "some" relief was obtained. Department of Educ., State of Hawai'i v. Rodarte, 127 F. Supp.2d 1103, 1117 (D. Hawai'i 2000).
The Court finds that the Plaintiffs prevailed below, since they were successful in two critical issues that were before the Hearing Officer: whether Sarah had to be referred for further assessment, and whether they were entitled to reimbursement for expenses incurred in hiring a private provider. Thus the Court finds that Defendant must pay Plaintiffs reasonable attorney fees incurred in relation to the September 2000 due process hearing.
Plaintiffs also request attorney fees incurred at IEP meetings. According to the IDEA, Plaintiffs may not recover attorney fees for an IEP meeting unless it was convened as the result of an administrative hearing or judicial action, or at the discretion of the state. 20 U.S.C. § 1415 (i)(3)(D) (ii). In this case, Hearing Officer Benmour ordered that an IEP meeting be convened after her order. The meeting occurred on January 31, 2001. Plaintiffs may therefore obtain reasonable attorney fees incurred for this IEP meeting only.
B. Section 1983
Plaintiffs claim they are entitled to compensatory and injunctive relief under 42 U.S.C. § 1983 and 1988 for alleged violations of the IDEA. The District claims that as a state agency it is immune from suit under § 1983 and that therefore neither fees nor costs may be recovered under § 1988.
The Ninth Circuit has not yet addressed whether IDEA violations give rise to claims under § 1983, and those circuits that have decided this issue are split. See, e.g., Mrs. W. v. Tirozzi, 832 F.2d 748, 750 (2d Cir. 1987) (allowing plaintiff to pursue § 1983 claims for IDEA violations); W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995) (same); but see Sellers v. Mannassas School Bd., 141 F.3d 524, 529 (4th Cir. 1998) (finding § 1983 unavailable); Padilla v. School Dist. No. 1 in the City County of Denver, Col., 233 F.3d 1268, 1274 (10th Cir. 2000) (same); Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996) (same).
Recently, a district court in the Central District of California expressly held that a plaintiff could proceed under § 1983 for violations of IDEA. Goleta Union Elementary School District v. Ordway, 166 F. Supp.2d 1287, 1294 (C.D. Cal. 2001). It noted that while § 1983 does not confer substantive rights on its own, it does redress the deprivation of rights codified elsewhere. Id. at 1292 (citing Maine v. Thiboutot, 448 U.S. 1, 5-6 (1980)). The court found that statutory rights are not redressable by § 1983, however, when "Congress intended to foreclose such private enforcement." Id. (quoting Wright v. Roanoke Redevelopment Hous. Auth., 479 U.S. 418, 423 (1987)). While the IDEA is silent as to § 1983, the Goleta Union court found that the legislative history of section 1415(f) "makes it clear that Congress intended to provide for § 1983 actions for violations of IDEA." Id. at 1295 (reviewing legislative history).
But before the Court even reaches the issue of whether § 1983 is the appropriate vehicle under which to vindicate IDEA claims, it is again faced with an exhaustion dilemma. According to 20 U.S.C. § 1415 (1), while it is true that the provisions of the IDEA are not the exclusive means for addressing violations of disabled children's rights, certain procedural requirements must be met before such other means are invoked:
Nothing in this Chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973 or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
Id. (emphasis added).
In Tirozzi, the Second Circuit noted that while the IDEA (then the EHA) does not bar the application of other federal laws to special education cases, a plaintiff may not circumvent its failure to exhaust the administrative requirements of the IDEA by styling its complaint as one that lies in a different body of law. Id. 832 F.2d at 756. "In other words, when parents choose to file suit under another law that protects the rights of handicapped children — and the suit could have been filed under the [IDEA] — they are first required to exhaust the [IDEA]'s remedies to the same extent as if the suit had been filed originally under the [IDEA]'s provisions." Id.
Applying this holding to the case at bar, the Court finds that Plaintiffs' § 1983 claims are only amenable to review in this forum to the extent they have been exhausted at the administrative level. Therefore, the Court will limit its discussion of § 1983 to the District's liability under the IDEA for its alleged failure to adequately provide speech and language services.
The Court affirmed above the findings of the Hearing Officer that the District did not comply with the IDEA when it insisted on referring Sarah for an outside assessment, thereby denying her the extra hour of speech and language services at the public's expense. Thus because the Court agrees that the IDEA was violated in this instance, it would be possible for Plaintiffs to pursue an additional claim under § 1983.
Even if, however, Plaintiffs could technically avail themselves of a § 1983 cause of action, Defendant must prevail on this issue because Plaintiffs have failed to recognize that a state is not considered a "person" within the meaning of § 1983, and thus may not be properly named as a defendant. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Defendant District rightly asserts that as a state agency, it is immune from suit under § 1983. Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992) (holding that as arms of the state, school districts enjoy Eleventh Amendment immunity).
The Court recognizes that the IDEA and section 504 of the Rehabilitation Act contain express language abrogating Eleventh Amendment immunity. 20 U.S.C. § 1403; 42 U.S.C. § 2000d-7 (a)(1) (Section 504). Thus Plaintiffs' claims under these laws may proceed against a state agency without running into the same problems as their § 1983 claims. Under § 1983, claims against the states or their agencies do not benefit from Eleventh Amendment abrogation.
Plaintiffs ask that they be allowed to amend their complaint to include an individual defendant. presumably Plaintiffs would then allege § 1983 claims against a district employee acting in her official capacity and seek prospective relief under Ex Parte Young, 209 U.S. 123 (1908), or against a district employee acting in her individual capacity and seek both retrospective and prospective relief under Hafer v. Melo, 502 U.S. 21 (1991).
A party may amend its pleading by right any time before a responsive pleading is filed. Fed.R.Civ.P. 15(a). After a response has been filed, a party may amend only with leave of court or with written consent of the adverse party, and leave may be freely granted "when justice so requires." Id. Because the District has answered Plaintiffs' complaint, amendment rests with the Court's discretion.
While it is true that there is a strong policy favoring amendment, it is tempered by considerations of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962). The Court is particularly concerned that Plaintiffs have waited to request amendment until the District has filed a summary judgment motion, pointing out the deficiencies in their complaint. Given the timing of the request, and the fact that it would cause undue delay in a case that already has the benefit of a fully-briefed summary judgment motion, the Court denies Plaintiffs' request to amend to add additional defendants. See Schlacter-Jones v. General Tel. of Calif., 936 F.2d 435, 443 (9th Cir. 1991) (holding that a district court was within its discretion to deny amendment after a summary judgment motion had been filed and fully briefed).
C. Rehabilitation Act
Plaintiffs next allege that the District violated section 504 of the Rehabilitation Act, 29 U.S.C. § 794, ("section 504") by preventing Sarah and Sylvia from participating fully in the educational opportunities available in the Menlo Park School District. They claim further that the Act was violated when the District retaliated against them for attempting to assert their rights.
As with Plaintiffs' IDEA claims, however, the Court must first address the statute of limitations problems confronting the Rehabilitation Act claims. Because claims under the Rehabilitation Act are best construed as personal injury actions, they must be filed within the time limit prescribed for such actions under state law. Baker v. Board of Regents of State of Kansas, 991 F.2d 628, 632 (10th Cir. 1993) (analogizing section 504 to 42 U.S.C. § 1983); Wilson v. Garcia, 471 U.S. 261, 271 (1985) (adopting the state statute of limitations for personal injury actions as the governing statute of limitations for § 1983 actions). In California, that statute of limitations is one-year. Cal. Civ. Pro. Code § 340(3). Plaintiffs filed their complaint on February 1, 2001. Thus the Court will only address those allegations that occurred in the year immediately preceding the filing date.
Section 504 provides that: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794. To establish a violation of section 504, Plaintiffs must show that (1) their children are disabled as defined by the Act; (2) their children are "otherwise qualified" to participate in school activities; (3) the School or the District receives federal financial assistance; and (4) their children were excluded from participating in, denied the benefits of, or subject to discrimination at, the school. Matula, 67 F.3d at 492.
To recover monetary damages under section 504, Plaintiffs must prove intentional discrimination by district officials. Ferguson v. City of Phoenix, 157 F.3d 668, 675 (9th Cir. 1998). The minimal required showing is deliberate indifference to Plaintiffs' federally protected rights. Id. Here, Plaintiffs must show there is a genuine issue of material fact as that the District acted with a such a deliberate indifference.
Plaintiffs say their claim under section 504 should be submitted to a jury because intent is a fact question. They list a string of incidents they claim constitutes sufficient circumstantial and direct evidence. Aside from the fact that the Court may only consider that which has occurred in the year of § 56045 for failure to hold a public hearing after receiving notice of noncompliance from the Superintendent; retaliation against Plaintiffs for attempting to assert their rights.
The Defendant argues that Eleventh Amendment immunity extends to state claims brought in federal court against arms of the state. We agree, and grant summary judgment to the District on all state claims. Again, we deny Plaintiffs' request to amend their complaint to name individual defendants for the same reasons articulated above.
State law claims before a federal court exercising pendent jurisdiction must undergo Eleventh Amendment scrutiny to the same degree as their federal counterparts. Penhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 121 (1984); Pena v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992). Here, Plaintiffs have sued the District under state law, as set forth in their Fourth Cause of Action. Because, as the Court has already recognized, a school district is considered an arm of the state for the purposes of the Eleventh Amendment, Belanger, 963 F.2d at 254, these claims cannot survive Eleventh Amendment scrutiny. Thus the Court grants summary judgment to Defendant on Plaintiffs' state law claims.
V. CONCLUSION
For the above-mentioned reasons, Defendant's Motion for Summary Judgment is hereby GRANTED and the decision of Hearing Officer Benmour is AFFIRMED. Defendant is ordered to pay Plaintiffs' attorney fees for the September 14-15, 2000 due process hearing and the resulting IEP meeting.
IT IS SO ORDERED.