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D.R., By and Through His Parent, Etsuko R v. Department of Education

October 21, 2011

D.R., BY AND THROUGH HIS PARENT, ETSUKO R., PLAINTIFF,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAI#I, DEFENDANT.



The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge

ORDER AFFIRMING THE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION OF THE OFFICE OF ADMINISTRATIVE HEARINGS

I. FACTUAL AND PROCEDURAL BACKGROUND

D.R. ("Student") is a student who is eligible for special education under the Individuals with Disabilities Education Act ("IDEA"), and has been receiving services under that Act for several years. Acting on his behalf, his mother ("Plaintiff") filed a Request for Impartial Due Process Hearing challenging the sufficiency of an individualized education program ("IEP") that was developed in June 2010.*fn1 (Admin. R. Ex. 2.) At the time the June IEP was developed, Student had been attending a private school, the Variety School, for more than three years. (Opening Br. Ex. A ("Admin. Decision") at 5.)*fn2 At the hearing before this Court, Defendant indicated that Student's mother had unilaterally placed Student at the Variety School beginning in 2007, but that as a result of a settlement agreement, Defendant was paying for Student's education at the Variety School.*fn3 After the June IEP was developed, Student's mother unilaterally placed Student in another private school, Loveland Academy. (Id.)*fn4 She had informed Defendant that she intended to enroll Student at Loveland in March. (Id. at 7.)

After a hearing, an administrative hearings officer issued a Findings of Fact, Conclusions of Law, and Decision in favor of the Department of Education ("Defendant") and against Plaintiff. (Admin. Decision at 29.) Plaintiff filed this action for review of that decision pursuant to 20 U.S.C. § 1415(i)(2)(A), which gives parties who are "aggrieved by the findings and decision" in a due process hearing the right to file a civil action challenging the findings and decision, and 20 U.S.C. § 1415(i)(3)(A), which confers on federal district courts nonexclusive original jurisdiction over such challenges.

The Court will AFFIRM the Findings of Fact, Conclusions of Law, and Decision.

II. STANDARD

In evaluating an appeal of an administrative decision under the IDEA, a court "(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."*fn5 20 U.S.C. § 1415(i)(2)(C).*fn6

The statutory requirement "that a reviewing court base its decision on the 'preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Rather, "due weight" must be given to the findings in the administrative proceedings. Id.

The amount of deference given to administrative findings in this context is a matter of judicial discretion. See Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995) (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)). A court must "consider the findings 'carefully and endeavor to respond to the hearing officer's resolution of each material issue,' but 'is free to accept or reject the findings in part or in whole.'" Id. (quoting Gregory K., 811 F.2d at 1311). "When exercising its discretion to determine what weight to give the hearing officer's findings," a court may "examine the thoroughness of those findings" and accord greater deference when they are "'thorough and careful.'" Id. (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)).

A court's inquiry in reviewing administrative decisions under the IDEA is twofold: "First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more." Rowley, 458 U.S. at 206--07 (footnotes omitted); see also Smith, 15 F.3d at 1524.

The IDEA defines a "free appropriate public education" as one that, inter alia, is "provided in conformity with the individualized education program required under section 1414(d) of this title." 20 U.S.C. § 1401(9)(D). "[W]hen a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child's IEP. A material failure occurs when there is more than a minor discrepancy between the services provided to a disabled child and those required by the IEP." Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 815 (9th Cir. 2007).*fn7

III. DISCUSSION

Plaintiff raises several arguments that the IEP was deficient, both procedurally and substantively. Indeed, certain of Plaintiff's arguments are repeated throughout the briefs. The discussion below consolidates Plaintiff's related or repeated arguments, and so is organized somewhat differently than the briefs.

A. Bias

Plaintiff's lead argument in this case is that the administrative hearings officer should have recused himself from hearing the case. Plaintiff notes that the officer was formerly employed as a Deputy Attorney General for the State of Hawai#i and represented the Department of Education in other matters, and further that the officer was a former co-worker of the lawyer who represented the Department at the hearing. (Opening Br. at 9.) Beyond that, Plaintiff asserts that the officer, in his former capacity as an attorney, was "more than a zealot" in his advocacy. (Id. at 10) (emphasis in original). Plaintiff claims that the officer "was terminated presumably for cause" from his position as an administrative hearings officer at some point after the hearing. (Id.) Plaintiff also notes that "in the last six cases that [the officer] presided over, he ruled exclusively in the DOE's favor." (Id.) Plaintiff concludes that the officer was "clearly biased and unfair in his current decision." (Id.)

Defendant describes "the accusations and claims being made against the Hearings Officer" as "particularly troubling." (Opp'n at 10.) Defendant notes that Plaintiff's attorney, who did not appear in this case at all until months after the administrative hearing had concluded, "was not involved in the underlying administrative proceeding and lacks any first-hand knowledge to support the accusations being made about the Hearing Officer's conduct at the hearing." (Id.) Defendant adds that there was no motion made in the administrative proceeding for the officer to recuse himself. (Id. at 11.) At the hearing before the Court, Defendant's counsel informed the Court that the reason for the administrative hearings officer's termination was that the ...


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