United States District Court, D. Hawaii
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.
ORDER AFFIRMING HEARINGS OFFICER'S APRIL 25, 2018
A. OTAKE UNITED STATES DISTRICT JUDGE.
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
year-old M.U. has been diagnosed with Dyslexia and
Dyscalculia. AR, Doc. No. 13-9 at 4. She is eligible for services
under the Individuals with Disabilities Education Act
(“IDEA”) by meeting criteria for a Specific
Learning Disability. Id.
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.
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.
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. 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.
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.
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.
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.
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.
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 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 IEP; (4) M.U.'s least
restrictive environment during her ESY program was properly
discussed during the February 9, 2017 IEP
meeting; (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.
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.
24, 2018, Plaintiffs commenced the instant action.