United States District Court, D. Hawaii
J. G., BY AND THROUGH HIS PARENTS, HOWARD AND DENISE GREENBERG, HOWARD GREENBERG, and DENISE GREENBERG, Plaintiffs,
STATE OF HAWAII, DEPARTMENT OF EDUCATION, DENISE GUERIN, PERSONALLY AND IN HER CAPACITY AS DISTRICT EDUCATION SPECIALIST, and FRANCOISE WHITTENBURG, PERSONALLY AND IN HER CAPACITY AS PRINCIPAL OF LOKELANI INTERMEDIATE SCHOOL, Defendants.
Derrick K. Watson, United States District Judge.
ORDER AFFIRMING THE DECEMBER 20, 2017 DECISION OF THE
ADMINISTRATIVE HEARINGS OFFICER
appeal concerns the administrative hearings officer's
(“AHO”) determination of J.G.
(“Student”) and Howard and Denise G.'s
(“Parents”) request for due process following the
issuance of Student's March 16, 2017 Individualized
Education Program (“IEP”) for the 2017-18 school
year. Because Parents have not shown by a preponderance of
the evidence that the AHO's December 20, 2017 decision
(Dkt. No. 97-29) should be reversed, the Court AFFIRMS that
who was fourteen years old at the time of the AHO's
December 20, 2017 decision (“Decision”), is
eligible for special education and related services pursuant
to the Individuals with Disabilities Education Act of 2004
(“IDEA”), 20 U.S.C. §§ 1400, et
seq., for Autism Spectrum Disorder (“ASD”),
Level 3 (requiring very substantial support) with early
language impairment, Anxiety Disorder, and
Obsessive-Compulsive Disorder. Decision at 5 (FOF 2), Dkt.
No. 97-29 (citing Pet'rs' Admin. Ex. 4 [Confidential
BACB Advisory Warning (Sept. 2, 2015)] at 121-22, Dkt. No.
103-5). Student has received these services via Autism
Management Services a/k/a Maui Autism Center
(“AMS”), a private school owned by Parents, since
2010. Second Am. Compl. (“SAC”) ¶ 11, Dkt.
No. 72; see also Decision at 5 (FOF 6), Dkt. No.
97-29 (citations omitted).
IEP for the 2017-18 school year was developed during a series
of IEP meetings on February 22, February 24, March 13, March
15, and March 16, 2017. At least eight individuals-including
Parents, Defendant Françoise Wittenburg (Principal of
Student's “Home” School, Lokelani
Intermediate School),  three Department of Education
(“DOE”) teachers including Julia Whiteley
(then-Special Education Teacher at the Home School and DOE
Department Head), an Occupational Therapist, and a
Speech-Language Pathologist-attended each IEP meeting.
See Pet'rs' Admin. Ex. 8 [Mar. 16, 2017 IEP]
at 29-34, Dkt. No. 103-9.
resulting March 16, 2017 IEP provides Student with special
education services-including one-to-one individual
instructional support and “specifically designed
instruction in the areas of reading, writing, mathematics,
behavior, functional performance, and
communication”-occupational therapy, speech and
language therapy, transportation, and a variety of other
supplementary aids and services, program modifications, and
supports. March 16, 2017 IEP at 2 (¶ 10), 26-27 (¶
21). On the day of the final IEP meeting, Principal
Wittenburg led the IEP team in a discussion of options along
the LRE continuum, from least-to-most restrictive (see,
e.g., Decision at 11-15 (FOFs 58-64), Dkt. No. 97-29
(citations omitted)), until they determined that the IEP
could be implemented at DOE's new public separate
facility (Pet'rs' Admin. Ex. 10 [Mar. 17, 2017 Prior
Written Notice of Dep't Action (“PWN”)]
¶ 3, Dkt. No. 103-11 at 4). Accordingly, Principal
Wittenburg “[r]ejected placement at a private separate
facility” such as AMS in favor of placement at the less
restrictive public separate facility, Po‘okela Maui
specialized education center. Mar. 17, 2017 PWN ¶ 3,
Dkt. No. 103-11 at 4. At Po‘okela Maui, Student would
“participate with disabled peers during all school
hours” and would “have opportunities to interact
with non-disable[d] peers during community outings.”
Mar. 16, 2017 IEP at 28 (¶ 23), Dkt. No. 103-9.
Student “receive[d] educational services in a private
setting, [AMS] located in Kihei, HI, ” when the March
16, 2017 IEP was developed, the IEP also provides for the
following “transition plan” “[t]o occur
prior to and during change of placement”:
Because student had been in private separate facility for
some time, a transition plan will be implemented to mitigate
any potential harmful impact of him moving to a less
restrictive environment and transitioning to a new school.
Factors to consider for transition will include new people,
new location, self-injurious behaviors, potential regression,
access to the community, [and] new program routines.
March 16, 2017 IEP at 2 (¶ 10), 27 (¶ 21), Dkt. No.
instant matter arises out of Parents' May 5, 2017 amended
request for due process, which challenges the DOE's
“unilateral decision to change [Student]'s
[educational] placement” from AMS to Po‘okela
Maui in the March 16, 2017 IEP. Admin. R., Ex. 1 [Pet'rs
Addendum to Am. Request for Impartial Due Process Hr'g]
at 2, 5, Dkt. No. 97-1 [hereinafter Due Process Compl.].
Parents contend that the March 16, 2017 IEP denied Student a
free appropriate public education (“FAPE”), as
required by the IDEA, 20 U.S.C. § 141(9)(d)(1)(A),
because: the change in placement was “predetermined in
the IEP without input from [Parents]”; Parents
“knew nothing about the Po‘okela Maui facility
and the DOE provided no information regarding the
facility” prior to changing Student's placement in
the IEP; “independent research by . . . [P]arents
indicated that the Po‘okela Maui facility was
inadequate to meet [Student's] needs and would not
provide him a FAPE”; “the change in
[Student's] educational placement from AMS, where he had
been for at least 7 years, to Po‘okela Maui violated
the IDEA and . . . [P]arents['] procedural
safeguards” under it; and “keeping [Student] in
his current placement was not even considered by the IEP
team.” Due Process Compl. at 3-4, Dkt. No.
hearing on this Due Process Complaint was scheduled for
October 30, 2017 before AHO Rowena A. Somerville.
anticipation of their due process hearing, Parents filed an
August 9, 2017 Motion to Establish Burden of Proof, asking
the Office of Administrative Hearings to “assign the
burden of proof to DOE as to whether the change in
[Student]'s placement from the judicially-approved
placement at AMS back to the public school Po‘okela
Maui complies with IDEA and is a proper change of
placement.” Admin. R., Ex. 11 [Burden of Proof Mot.] at
16, Dkt. No. 97-12. AHO Somerville denied the Burden of Proof
Mot. on October 11, 2017. See Admin. R., Ex. 19
[Order Denying Burden of Proof Mot.], Dkt. No. 97-20. In a
letter dated September 27, 2017, Parents also requested that
AHO Somerville conduct a site visit of AMS prior to ruling on
the Due Process Complaint (Admin. R., Ex. 16 [Site Visit
Request], Dkt. No. 97-17), but AHO Somerville declined to do
so on September 29, 2017 (Admin. R., Ex. 18 [Order Denying
Site Visit Request], Dkt. No. 97-19).
October 10, 2017, Parents initiated the instant federal
lawsuit challenging the Order Denying Burden of Proof Motion
and the Order Denying Site Visit Request (collectively
“AHO Somerville's Pre-Trial Orders”). Compl.,
Dkt. No. 1. The same day, Parents also filed a motion before
the AHO (Dkt. No. 10-3 at 103-08) seeking to stay further
administrative proceedings on the Due Process Complaint
“pending resolution of issues on appeal.” Parents
next filed a “Motion to Enforce the ‘Stay
Put' Rule” in this Court on October 11, 2017, in
which they requested an order requiring the DOE “to
allow [Student] to remain in and continue to pay for his
current educational placement at [AMS] until complete
resolution of the issues presently before this Court,
including any appeals taken therefrom.” See
Mot. to Enforce at 4, Dkt. No. 7. Parents filed their First
Amended Complaint (Dkt. No. 9) and a Motion for TRO (Dkt. No.
10) on October 19, 2017. In the latter, Parents sought review
of AHO Somerville's Pre-Trial Orders and asked the Court
to enjoin administrative proceedings on the Due Process
Complaint scheduled for October 30, 2017. See TRO
Mot. ¶ 6, Dkt. No. 10. Finding both of AHO
Somerville's Pre-Trial Orders to be “clearly
interlocutory, ” this Court denied the Motion for TRO
on October 25, 2017. Entering Order (Oct. 25, 2017), Dkt. No.
37 (citing In re Merle's Inc., 481 F.2d 1016,
1018 (9th Cir. 1973)). Parents appealed the October 25, 2017
Entering Order to the Ninth Circuit Court of Appeals on
October 26, 2017. See Notice of Interlocutory
Appeal, Case No. 17-17190 (9th Cir. Oct. 25, 2017), Dkt. No.
denied Parents' October 26, 2017 “Motion to Stay
Proceedings Pending [Interlocutory] Appeal” (Dkt. No.
39). See Entering Order (Oct. 26, 2017), Dkt. No.
40. After the AHO filed the Decision on December 20, 2017,
Parents filed the SAC on February 22, 2018, raising fifteen
causes of action and seeking monetary, declaratory, and
injunctive relief. SAC, Dkt. No. 72.
administrative hearing on Parents' May 5, 2017 Due
Process Complaint began on October 30, 2017 and lasted for
four days. See Tr. of Proceedings (Oct. 30, 2017),
Dkt. No. 99; Tr. of Proceedings (Oct. 31, 2017), Dkt. No.
100; Tr. of Proceedings (Nov. 1, 2017), Dkt. No. 101; Tr. of
Proceedings (Nov. 2, 2017), Dkt. No. 102. In her December 20,
2017 decision, AHO Somerville upheld the placement decision
of Po‘okela Maui in Student's March 16, 2017 IEP,
concluding that Parents had “not met their burden and
ha[d] not shown procedural or substantive violations of the
IDEA denying Student a FAPE.” Decision at 32, Dkt. No.
97-29. In support of this holding, the Decision contains the
following conclusions of law:
The Hearings Officer finds the DOE witnesses to be credible.
The Hearings Officer further finds that the DOE did not block
Parents' participation in the March 16, 2017 IEP meeting
or predetermine Student's placement. The Hearings Officer
further finds that the DOE offered Student a FAPE that was
appropriately designed to convey student a meaningful
. . . .
The IEP was specifically tailored to meet Student's
unique needs and provide him with a meaningful educational
benefit and to make progress, and the IEP can be implemented
at the [public separate facility] with a transition plan.
. . . .
The private facility [(AMS)] offers Student far less
opportunity to socialize with non-disabled peers [than] the
[public separate facility (Po‘okela Maui)]. The
Hearings Officer finds that the IEP team had an adequate
discussion regarding LRE. The Hearings Officer further finds
that the [public separate facility], with a transition plan,
is the LRE for Student.
at 25, 32, Dkt. No. 97-29. AHO Somerville also found that,
because Parents did not show that the March 16, 2017 IEP
denied Student a FAPE[, ]” “the issue of
appropriateness of the private facility does not need to be
addressed.” Decision at 32, Dkt. No. 97-29.
their Second Amended Complaint (Dkt. No. 72), Parents ask the
Court to vacate AHO Somerville's Pre-Trial Orders
(“Counts I & II”; SAC ¶¶ 64-94) and
Decision (SAC ¶¶ 95-190). In Counts II-IV of the
SAC, Parents allege that the Decision contains errors of law
regarding “Burden of Proof, ” “FAPE
Standard, ” “[LRE]/ Placement, ”
“Transition Services, ” and “Stay
Put” (“Count III”; SAC
95-138); mixed errors of law and fact regarding
“Parental Participation/ Predetermination, ”
“[LRE], ” and “Transition Services”
(“Count IV”; SAC ¶¶ 139- 76); and
errors of fact that allegedly contributed to the
Decision's legal errors (“Count V”; SAC
¶¶ 177-80). Parents assert that the March 16, 2017
IEP constitutes a “Denial of FAPE” to Student
(“Count VI”; SAC ¶¶ 181-90), among
other things. The instant dispute relates to Counts I-VI of
See, e.g., Mem. of Law-Pls.' Opening Br. on Cts.
1-6 of SAC, Dkt. No. 123 [hereinafter OB].
April 5, 2018, the Court heard oral arguments on the Motion
to Enforce the “Stay Put” Rule (Dkt. No. 7) and
other motions in Parents' related cases. See EP, Dkt. No.
106. Following this hearing, the parties entered a
“Stipulation Regarding Obligation Under 20 U.S.C.
§ 1415(j) (‘Stay Put') with Respect to
J.G.'s Placement” on April 20, 2018 (“Stay
Put Stipulation”), in which they stipulate and agree
that-“J.G.'s stay put placement with respect to the
underlying administrative proceeding, DOE-SY1617-067A, and
the current judicial proceeding . . . is [AMS]”;
J.G.'s stay put placement is “based upon” the
February 29, 2016 IEP; this placement “shall remain
during the pendency of this current judicial proceeding
through and including final resolution of and all appeals of
the IDEA claims”; and the DOE “shall abide by the
stay put placement pursuant to the IDEA.” Stay Put
Stipulation at 2, Dkt. No. 118. The parties also filed a
stipulation (Dkt. No. 114) dismissing with prejudice all
claims against the Office of Administrative Hearings and
against AHO Somerville in her capacity as AHO on April 16,
appeal from the December 20, 2017 Decision that upheld the
March 16, 2017 IEP, with the Court hearing oral argument on
July 20, 2018. See EP, Dkt. No. 138. The instant
IDEA is a comprehensive educational scheme, conferring on
disabled students a substantive right to public education and
providing financial assistance to enable states to meet their
educational needs.” Hoeft ex rel. Hoeft v. Tucson
Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992)
(citing Honig v. Doe, 484 U.S. 305, 310 (1988)). It
ensures that “all children with disabilities have
available to them a free appropriate public education [FAPE]
that emphasizes special education and related services
designed to meet their unique needs and prepare them for
further education, employment, and independent
living[.]” 20 U.S.C. § 1400(d)(1)(A). As a
condition of federal financial assistance under the IDEA,
states must provide such an education to disabled children
residing in the state who are between the ages of 3 and 21,
inclusive. 20 U.S.C. § 1412(a)(1)(A).
the IDEA, FAPE means special education and related services
that: (a) “have been provided at public expense, under
public supervision and direction, and without charge”;
(b) “meet the standards of the State educational
agency”; (c) “include an appropriate preschool,
elementary school, or secondary school education in the State
involved”; and (d) “are provided in conformity
with the individualized education program . . . .” 20
U.S.C. § 1401(9); 34 C.F.R. § 300.17; Haw. Admin.
R. § 8-60-2. “A FAPE is accomplished through the
development of an IEP for each child.” Laddie C. ex
rel. Joshua C. v. Dep't of Educ., 2009 WL 855966, *2
(D. Haw. Mar. 27, 2009) (citing Ojai Unified Sch. Dist.
v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993), cert.
denied, 513 U.S. 825 (1994)).
IDEA guarantees “procedural safeguards with respect to
the provision of a [FAPE]” to “children with
disabilities and their parents.” 20 U.S.C. §§
1415(a), (b)-(h). For example, parents of a disabled child
who claim violations of the IDEA “with respect to any
matter relating to . . . educational placement of the child
or the provision of a free appropriate public education to
such child” can file a complaint with a due process
hearing officer under 20 U.S.C. § 1415(b)(6)(A).
Hopewell Valley Reg'l Bd. of Educ. v. J.R., 2016
WL 1761991, *3 (D.N.J. May 3, 2016) (citing S.H. v. Lower
Merion Sch. Dist., 729 F.3d 248, 257 (3d Cir. 2013)).
Moreover, “wherever a complaint has been received under
subsection (b)(6) or (k) of this section, the parents
involved in such complaint shall have an opportunity for an
impartial due process hearing” to be “conducted
by the State educational agency” at issue-here, the
DOE. 20 U.S.C. § 1415(f)(1)(A).
District Court Review
party aggrieved by the findings and decision” made
pursuant to an administrative hearing under the IDEA
“shall have the right to bring a civil action with
respect to the complaint presented . . . in a district court
of the United States . . . .” 20 U.S.C. §
1415(i)(2)(A). When a party files an action challenging an
administrative decision under the IDEA, the district 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 deems is appropriate.” 20 U.S.C. §
1415(i)(2)(C); see Ojai Unified, 4 F.3d at 1471. The
party challenging the administrative decision bears the
burden of proof. See Hood v. Encinitas Union Sch.
Dist., 486 F.3d 1099, 1103 (9th Cir. 2007); J.W. ex
rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431,
438 (9th Cir. 2010) (stating that the challenging party must
show, by a preponderance of the evidence, that the decision
of the hearings officer should be reversed); Seattle Sch.
Dist., No. 1 v. B.S., 82 F.3d 1493, 1498 (9th Cir.
reviewing administrative decisions, the district court must
give “due weight” to the AHO's judgments of
educational policy. L.M. v. Capistrano Unified
Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009);
Michael P. v. Dep't of Educ., 656 F.3d 1057,
1066 (9th Cir. 2011) (quoting B.S., 82 F.3d at
1499). However, the district court has the discretion to
determine the amount of deference it will accord the
administrative ruling itself. J.W., 626 F.3d at 438
(citing Gregory K. v. Longview Sch. Dist., 811 F.2d
1307, 1311 (9th Cir. 1987)). In reaching this determination,
the court should consider the thoroughness of the hearings
officer's findings, increasing the degree of deference
where said findings are “thorough and careful.”
Michael P., 656 F.3d at 1066; L.M., 556
F.3d at 908 (quoting Capistrano Unified Sch. Dist. v.
Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)); cf.
Cty. of San Diego v. Cal. Special Educ. Hr'gs
Office, 93 F.3d 1458, 1466-67 (9th Cir. 1996)
(explaining that the district court should give
“substantial weight” to the decision of the
hearings officer when the decision “evinces his [or
her] careful, impartial consideration of all the evidence and
demonstrates his [or her] sensitivity to the complexity of
the issues presented” (citation and quotation marks
omitted)). Further, the amount of deference to be given to an
AHO's decision is, in part, influenced by whether the
hearings officer's findings are based on credibility
determinations of the testifying witnesses. See L.E. v.
Ramsey Bd. of Educ., 435 F.3d 384, 389 n.4 (3d Cir.
2006); see also B.S., 82 F.3d at 1499 (citations
omitted). Such deference is appropriate because “if the
district court tried the case anew, the work of the hearing
officer would not receive ‘due weight,' and would
be largely wasted.” Wartenberg, 59 F.3d at
ultimate determination of whether an IEP was appropriate,
” however, “is reviewed de novo.” A.M.
ex rel. Marshall v. Monrovia Unified Sch. Dist., 627
F.3d 773, 778 (9th Cir. 2010) (citing Wartenberg, 59
F.3d at 891).
Court AFFIRMS the Decision of the AHO, holding that the March
16, 2017 IEP did not deny Student a FAPE.
provide a free appropriate public education in compliance
with the IDEA, a state educational agency receiving federal
funds must evaluate a student, determine whether that student
is eligible for special education, and formulate and
implement an IEP. 20 U.S.C. § 1414(d)(1)(A) (“The
term ‘individualized education program' or
‘IEP' means a written statement for each child with
a disability that is developed, reviewed, and revised in
accordance with section 1414(d) of this title.”)). The
IEP is to be developed by an “IEP team” composed
of, inter alia, school officials, parents, teachers
and other persons knowledgeable about the child.
determine whether a student has been offered a FAPE, the
Supreme Court of the United States has established a two-part
test, which examines: (1) whether the state has complied with
the procedural requirements set forth in the IDEA; and (2)
whether the IEP developed through the Act's procedures is
reasonably calculated to enable the child to receive
educational benefits. Bd. of Educ. v. Rowley, 458
U.S. 176, 206-07 (1982). “Procedural flaws in the IEP
process do not always amount to the denial of a FAPE.”
L.M., 556 F.3d at 909 (citations omitted). Rather,
“[a] procedural violation denies a free appropriate
public education if it results in the loss of an educational
opportunity, seriously infringes the parents' opportunity
to participate in the IEP formulation process or causes a
deprivation of educational benefits.” J.L. v.
Mercer Island Sch. Dist., 592 F.3d 938, 952 (9th Cir.
2009) (citing N.B. v. Hellgate Elementary Sch.
Dist., 541 F.3d 1202, 1208 (9th Cir. 2008)).
Additionally, the “educational benefit” that
the child's IEP “is reasonably calculated to enable
the child to receive” must be more than de
minimus. Endrew F. v. Douglas County School
District, 137 S.Ct. 988 (2017). The IDEA “requires
an educational program reasonably calculated to enable a
child to make progress appropriate in light of the
child's circumstances.” Id. at 1001;
Blake C. ex rel. Tina F. v. Haw. Dep't of Educ.,
593 F.Supp.2d 1199, 1206 (D. Haw. 2009) (holding that the IEP
must be tailored to the unique needs of the child and
reasonably designed to produce benefits that are
“significantly more than de minimus, and gauged in
relation to the potential of the child at issue”).
AHO Somerville's Pre-Trial Orders
Somerville's Pre-Trial Orders denying Parents' Motion
to Establish Burden of Proof and Parents' informal Site
Visit Request are AFFIRMED.