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W. U. v. State

United States District Court, D. Hawaii

March 12, 2019

W.U. and L.U., individually and on behalf of their minor child, M.U., Plaintiffs,
STATE OF HAWAIʻI, DEPARTMENT OF EDUCATION and CHRISTINE KISHIMOTO, in her individual capacity as Superintendent of the Hawaii Public Schools, Defendants.




         This appeal, brought by Plaintiffs W.U. and L.U., individually and on behalf of their minor child, M.U. (collectively “Plaintiffs”) against the State of Hawai'i, Department of Education and Christine Kishimoto (collectively “Defendants”), seeks reversal of the Findings of Fact, Conclusions of Law, and Decision (“Decision”) issued on April 25, 2018 in DOE-SY1718-030. After careful consideration of the parties' briefs, the arguments of counsel, the applicable law, and the Administrative Record (“AR”), the Court HEREBY AFFIRMS the Decision for the reasons set forth below.


         A. Factual History

         Thirteen year-old M.U. has been diagnosed with Dyslexia and Dyscalculia. AR, Doc. No. 13-9 at 4.[1] She is eligible for services under the Individuals with Disabilities Education Act (“IDEA”) by meeting criteria for a Specific Learning Disability. Id.

         For the 2016-2017 and 2017-2018 school years, M.U. attended Assets, a private program. AR, Doc. No. 16 at 17:7-12. Prior to that, M.U. attended Noelani Elementary School (“Noelani”). Id. at 17:13-15. During the 2016-2017 school year, the Department of Education (“DOE”) determined that M.U.'s needs could be met at Stevenson Middle School (“Stevenson”), a DOE public school campus. AR, Doc. No. 15 at 46-52.

         On January 24, 2017, DOE staff contacted W.U. and L.U. to schedule M.U.'s annual individualized education program (“IEP”) meeting. Id. at 53. The parties agreed to conduct the meeting on February 9, 2017. Id. Prior to this meeting, two special education teachers from Stevenson, along with the Principal and student services coordinator, observed M.U. in various settings at Assets. Id. at 34. Their observations were discussed with W.U. and L.U. at the IEP meeting and included in the Present Levels of Educational Performance section of M.U.'s IEP. Id.

         At the time the DOE formulated M.U.'s IEP, she was in her first year at Assets; therefore, Defendants lacked data to ascertain whether to increase or reduce M.U.'s extended school year (“ESY”) services.[2] AR, Doc. No. 16 at 168:7-12. Insofar as Assets did not express concern about M.U. regressing during school breaks, id. at 170:21-171:15, Defendants determined that it was in M.U.'s best interest to maintain the status quo: Defendants would provide ESY services during summer break and after a break of 14 days. Id. at 169:3-17. The February 9, 2017 IEP noted that M.U. met the standard for an ESY and that she would receive four hours per day of special education ESY by the fifteenth calendar day after a break of fourteen consecutive calendar days and the ESY would end fourteen calendar days prior to the commencement of the regular school year. AR, Doc. No. 15 at 42.

         During the February 9, 2017 IEP meeting, W.U. and L.U. actively discussed and inquired about ESY services. AR, Doc. No. 13-9 at 12. They did not express concerns about the ESY determination or placement. AR, Doc. No. 16 at 59:6-24. In fact, L.U. confirmed that M.U.'s ESY program would begin at Stevenson at the end of July. Id., Doc. No. 15. Following the IEP meeting, W.U. discussed the ESY placement with M.U., who refused to attend the special education classes. Id., Doc. No. 16 at 59:18-23. This fact was unknown to the DOE. Id. at 59:24-60:18.

         By letter dated May 8, 2017, the DOE informed W.U. and L.U. that ESY services at Stevenson would run from June 9, 2017 to July 24, 2017 from 8:00 a.m. to 12:00 p.m. Id., Doc. No. 15 at 61. The DOE sent a follow-up letter on May 31, 2018, reiterating the details regarding ESY services and requesting that it be notified whether M.U. would be attending the ESY programming that summer. Id. at 62. In an email dated June 1, 2017, W.U. informed the DOE that M.U. had other arrangements for the summer, but that he wished to keep open the ESY option for the future. Id. at 63.

         Months after the IEP meeting, W.U. and L.U. sent Stevenson's Principal a letter dated June 20, 2017, notifying her that they rejected M.U.'s February 9, 2017 IEP for failure to provide appropriate placement or services. Id. at 64. They explained that they intended to send M.U. to Assets for the 2017-2018 school year and would be seeking public reimbursement. Id. Stevenson confirmed receipt of W.U. and L.U.'s notification regarding M.U.'s unilateral placement at Assets in a letter dated June 30, 2017, and advised that it remained committed to working with them to develop an appropriate program for M.U. Id. at 65.

         B. Procedural History

         On February 9, 2018, Plaintiffs filed a Request for Impartial Due Process Hearing (“Request”) with the Office of Dispute Resolution Department of the Attorney General, State of Hawai‘i. AR, Doc. No. 13-1. In pertinent part, Plaintiffs requested a determination as to whether the IEP meeting allowed for sufficient discussion of M.U.'s individualized needs during the ESY program and whether those needs would be properly addressed. Id. at 4. Plaintiffs also sought a determination as to whether M.U.'s ESY least restrictive environment was discussed at the IEP meeting and/or described in the IEP. Id.

         Hearings Officer Jennifer M. Young (“Hearings Officer”) conducted the due process hearing on March 28 and 29, 2018. AR, Doc. No. 13-9 at 3. On April 25, 2018, the Hearings Officer issued the Decision. Id. She held that: (1) M.U.'s February 2, 2017[3] IEP placed her in the least restrictive environment; (2) at M.U.'s February 9, 2017 IEP meeting, the IEP team's discussion of M.U.'s least restrictive environment was properly addressed; (3) M.U.'s ESY least restrictive environment was properly described in her February 3, 2017[4] IEP; (4) M.U.'s least restrictive environment during her ESY program was properly discussed during the February 9, 2017 IEP meeting;[5] (5) the discussion regarding M.U.'s need for socialization during ESY was sufficient; (6) the discussion concerning the manner in which the DOE would address M.U.'s socialization needs during her ESY was sufficient; and (7) the DOE had sufficient information and assessments from M.U.'s private school to determine the least restrictive environment and placement, but the DOE lacked sufficient data to determine the number of days before M.U. required ESY services. Id. at 22-31.

         With respect to ESY services, the Hearings Officer concluded that due to the DOE's failure to obtain sufficient information to establish the proper ESY program for M.U. for the summer of 2017, it failed to offer M.U. a free appropriate public education (“FAPE”). AR, Doc. No. 13-9 at 35. The Hearings Officer ultimately determined that Student did not attend a private ESY program during the summer of 2017 and equitable considerations do not warrant reimbursement as Parents did not avail

Student for ESY programming. Therefore, tuition reimbursement is not required in this matter and Petitioner did not produce sufficient evidence regarding compensatory education.

Id. at 37.

         On May 24, 2018, Plaintiffs commenced the instant action.

         STANDARD ...

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