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Department of Education, State of Hawaii v. M.F.

February 28, 2012

DEPARTMENT OF EDUCATION, STATE OF HAWAII, PLAINTIFF,
v.
M.F., BY AND THROUGH HER PARENTS R.F. AND W.F., DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION

I. INTRODUCTION

Defendant M.F., by and through her Parents, R.F. and W.F. ("M.F." or "the Student"), moves for reconsideration and/or clarification of this court's Order

(1) Affirming in Part and Remanding in Part the November 18, 2010 Decision of Administrative Hearings Officer, and (2) Granting in Part and Denying in Part Defendant's Motion to Supplement Record and to Enforce "Stay Put" (the "December 29, 2011 Order"). Based on the following, the Motion is DENIED. In addressing M.F.'s arguments, however, this Order clarifies some aspects of the December 29, 2011 Order.

II. DISCUSSION

"A motion for reconsideration must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Wereb v. Maui Cnty., --- F. Supp. 2d ----, 2011 WL 5509002, at *4 (D. Haw. Nov. 10, 2011) (citation omitted).

Mere disagreement with a previous order is an insufficient basis for reconsideration. Furthermore, reconsideration may not be based on evidence and legal arguments that a movant could have presented at the time of the challenged decision. Whether or not to grant reconsideration is committed to the sound discretion of the court.

Id. (internal citations omitted).

The factual and procedural background of this case is comprehensively set forth in the December 29, 2011 Order. See Dep't of Educ. v. M.F., --- F. Supp. 2d ----, 2011 WL 6940877 (D. Haw. Dec. 29, 2011). The parties are familiar with the background and the many issues argued, and the court does not repeat the details here. The court turns directly to M.F.'s main arguments for reconsideration and/or clarification.*fn1

A. Arguments Regarding the Hearing Officer's August 26, 2010 Order

M.F. argues that this court erred in applying the three-part "harmless error" analysis applicable to assess procedural violations of the IDEA, as set forth in L.M. v. Capistrano Unified School District, 556 F.3d 900, 909 (9th Cir. 2009). She contends that the Hearings Officer's August 26, 2010 Order granting partial summary judgment in her favor found substantive (not purely procedural) violations of the IDEA, and so the second step of the analysis regarding procedural violations (whether there was a "loss of an educational opportunity" or "serious infringement of parents' opportunity to participate") is not required.

The Hearings Officer's August 26, 2010 Order found violations of 20 U.S.C. §§ 1414(d)(2)(A) & 1414(d)(4)(A) because it was undisputed that (1) there was no IEP in place before M.F.'s 2009-2010 school year, and (2) the State of Hawaii, Department of Education ("DOE" or "State") did not conduct an annual review of M.F.'s May 28, 2008 IEP. These are clearly procedural -- not substantive -- violations of the IDEA. See, e.g., MM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 533 (4th Cir. 2002) ("[T]he failure of a school district to have a final IEP in place at the beginning of a school year is a procedural defect."); C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 65-66 (3d Cir. 2010).*fn2 Nowhere did the Hearings Officer find that these were substantive violations.

M.F. contends, however, that the violations were substantive because no IEP was developed for M.F. for eighteen months, during which time no special education or related services were offered to her. Pl.'s Mot. at 28. As the court acknowledged in the December 29, 2011 Order, "an educational opportunity may certainly be lost if there is no IEP." Dec. 29, 2011 Order at 38, 2011 WL 6940877 at *14. But the essential question remains whether M.F. (or her parents) desired or would have accepted a public placement during the approximately eighteen-month period. That is, as explained in the ...


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