E.C.D v. San Diego Unified School District

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9 UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA

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12 E.C.D. By and Through His Guardian Ad Case No.: 23-cv-303-RSH-MSB

Litem, FARAH CHERY,

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ORDER AFFIRMING DECISION OF

Plaintiff,

14 ADMINISTRATIVE LAW JUDGE

v.

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[ECF No. 35]

SAN DIEGO UNIFIED SCHOOL

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DISTRICT,

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Defendant.

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20 Plaintiff E.C.D., by and through his guardian ad litem, Farah Chery, appeals a

21 November 18, 2022 decision of an administrative law judge (the “ALJ’s Decision”) under

22 the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1415(i)(2)(A).

23 The ALJ’s Decision determined that defendant San Diego Unified School District

24 (the “District”) provided Plaintiff with an individualized education program (“IEP”) that

25 offered a free appropriate public education (“FAPE”) in the least restrictive environment.

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1 AR 1059–60.1 In this appeal, Plaintiff alleges several errors by the ALJ; the District asks

2 this Court to affirm the ALJ’s Decision.

3 The Parties have fully briefed their positions, and the Court finds the matter suitable

4 for decision without oral argument pursuant to Civil Local Rule 7.1(d)(1).2 After review of

5 the record and the Parties’ written submissions, the Court affirms the ALJ’s Decision and

6 enters judgment in favor of the District.

7 I. BACKGROUND

8 A. Statutory Background

9 Congress enacted the IDEA to ensure “all children with disabilities have available

10 to them a free appropriate public education”—also called a FAPE—“that emphasizes

11 special education and related services designed to meet their unique needs.” 20 U.S.C. §

12 1400(d)(1)(A). The IDEA imposes a “least restrictive environment” requirement, under

13 which states must ensure that “children with disabilities . . . are educated with children who

14 are not disabled” and that “removal of children with disabilities from the regular

15 educational environment occurs only when the nature or severity of the disability of a child

16 is such that education in regular classes with the use of supplementary aids and services

17 cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A).

18 To this end, the IDEA requires that students “receive a FAPE through the

19 development of an individualized education program.” McIntyre v. Eugene Sch. Dist. 4J,

20 976 F.3d 902, 910 (9th Cir. 2020). The IEP is “the centerpiece of the statute’s education

21 delivery system for disabled children.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch.

22 Dist. RE-1, 580 U.S. 386, 391 (2017) (citation omitted). Every IEP must include statements

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25 1 All citations to the Administrative Record (“AR”) refer to the page numbers in the

26 top right-hand corner of the AR, filed as ECF No. 46.

2 The IDEA provides the court “shall hear additional evidence at the request of a

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1 about “the child’s present levels of academic achievement,” “measurable annual goals,”

2 and an explanation of “the extent, if any, to which the child will not participate with

3 nondisabled children in the regular class.” 20 U.S.C. § 1414(d)(1)(A).

4 An “IEP Team” composed of parents, teachers, and experts develops the IEP. 20

5 U.S.C. § 1414(d)(1)(B). When parents and educators disagree about a child’s IEP, the

6 IDEA provides for informal dispute resolution procedures and mediation. Id. §§ 1415(e),

7 (f)(1)(B)(i). If these measures fail, the aggrieved party is entitled to a “due process hearing”

8 before the State or local educational agency. 20 U.S.C. § 1415(f).

9 Under California Education Code § 56346(f), when a parent does not consent to a

10 component of a district’s proposed IEP, and the district determines this component is

11 necessary to provide a FAPE, “a due process hearing shall be initiated.”3 This provision

12 “compels a school district to initiate a due process hearing when the school district and the

13 parents reach an impasse.” I.R. ex rel. E.N. v. Los Angeles Unified Sch. Dist., 805 F.3d

14 1164, 1169 (9th Cir. 2015). “[A]t the conclusion of the administrative process, the losing

15 party may seek redress in state or federal court.” Endrew, 580 U.S. at 392.

16 B. Factual Background

17 E.C.D. is an eight-year-old student who qualifies for an IEP under the handicapping

18 conditions of Hard of Hearing and Speech and Language Impairment. ECF No. 35 at 1.

19 E.C.D. was found eligible for special education in December of 2018. ECF No. 35 at 1. At

20 the time, the Parties engaged in IEP discussions for the first time. ECF No. 43 at 3. After

21 numerous IEP meetings and disagreement between the Parties regarding the proper IEP,

22 on February 9, 2021, the Parties entered into a settlement agreement. Id. As part of the

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25 3 A party will “file for due process” to request a due process hearing. At this hearing,

26 “all parties may be accompanied by counsel, and may present evidence and confront, cross-

examine, and compel the attendance of witnesses.” Schaffer ex rel. Schaffer v. Weast, 546

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1 settlement, the Parties agreed to meet to create a new IEP for E.C.D. in December 2021.

2 ECF No. 35 at 2. Between November 20, 2021 and December 16, 2021, the District

3 completed assessments of E.C.D. in preparation for the new IEP, including a psychological

4 evaluation by District psychologist Dr. Renate Ward. AR 157, 726. The Parties met for an

5 IEP meeting on December 16, 2021, but did not complete the IEP and scheduled a follow-

6 up meeting for January 12, 2022.

7 1. Development of January 12, 2022 IEP

8 On January 12, 2022, the IEP team reconvened to discuss E.C.D.’s IEP. AR 3, 158.

9 The next day, on January 13, 2022, the District sent E.C.D.’s parents an email with the

10 proposed IEP from the meeting the day before (“January 2022 IEP”). AR 784. Among

11 other services, the offer included five hours per week of specialized DHH services, pushed

12 into the regular classroom to support E.C.D.’s reading, writing, math and self-advocacy.

13 AR 234. In response to E.C.D.’s parents’ request for full-time DHH support for E.C.D.,

14 the Team Action notes expressed concern that “too much adult support in the classroom

15 could have harmful effects” by creating “dependence on adults, less opportunities for

16 interactions between [E.C.D.] and his peers, and hinder[ing] progress.” Id. As to the

17 location for the January 2022 IEP’s implementation, the document included references to

18 both Florence Elementary School (“Florence”) and Lafayette Elementary School

19 (“Lafayette”) throughout. AR 789. E.C.D.’s parents did not consent to the January 2022

20 IEP and requested an amended IEP with, among other services, full-time DHH support and

21 placement at E.C.D.’s home school, Florence. Id.

22 2. Development of March 25, 2022 IEP

23 On March 16, 2022, the Parties convened for another IEP meeting to discuss

24 potential changes. AR 159. Following the meeting, on March 25, 2022, the District sent a

25 prior written notice (“PWN”) to E.C.D.’s parents with the amended IEP attached (“March

26 2022 IEP”). AR 159, 881. The PWN noted that at the January IEP meeting, the District

27 offered a placement “to be implemented at Lafayette.” Id. The PWN then stated that “the

1 District continues to believe that Lafayette [] provides advantages to [E.C.D.],” followed

2 by a list of advantages of Lafayette. AR 882–83. The District further stated that E.C.D.’s

3 “needs would best be met by implementing his IEP at Lafayette.” AR 883. The March 2022

4 IEP contained isolated references to Florence, but the majority of the location references

5 were to Lafayette. AR 885, 906–07, 909. The March 2022 IEP Team Action notes clarified

6 that “[t]he IEP Team recommends placement at Lafayette” and made clear that the “IEP

7 document may contain errors that include ‘Florence Elementary’ in the document, as that

8 is where [E.C.D.] is currently enrolled. That is not editable until enrollment changes.” AR

9 916. At the due process hearing, E.C.D.’s father testified that he “left the March [2022 IEP]

10 meeting [] thinking that . . . all [E.C.D.’s] services would be at Lafayette.” AR 1699.

11 The March 2022 IEP increased E.C.D.’s DHH services from five to fifteen hours per

12 week for the first 60 days and agreed to then reconvene to determine the necessary level of

13 services. AR 882. The District reaffirmed that “based on their assessments of [E.C.D.], . .

14 . they did not feel that a full-time deaf education specialist was necessary for [E.C.D.] to

15 benefit from his educational program,” and in fact “that it can result in learned

16 helplessness.” AR 882. The Team Action notes further explained that E.C.D.’s parents’

17 proposal would not be the least restrictive environment and that his present levels did not

18 necessitate that level of support. AR 917.

19 C. Procedural Background

20 On May 6, 2022, E.C.D.’s parents rejected the District’s March 2022 IEP and

21 notified the District that they would continue E.C.D.’s placement at Echo Horizon School,

22 a private school in Los Angeles, California that E.C.D. began attending in 2021, and would

23 be seeking reimbursement from the District. AR 967. On May 18, 2022, the District sent a

24 PWN responding to E.C.D.’s parents’ notice and denying the request for reimbursement.

25 AR 969–71. On June 7, 2022, Plaintiff filed the due process request at issue. AR 1–6.

26 On September 13, 14, 15, 16, and 27, 2022, the Office of Administrative Hearings

27 held a due process hearing at the request of Plaintiff. Id. At the due process hearing,

1 E.C.D.’s parents, Dr. Farah Cherry and Dr. John Davenport; private audiologist Dr. Joan

2 Hewitt; and Echo Horizon DHH teacher Jennifer Mascolo testified on behalf of Plaintiff.

3 Various District witnesses testified on behalf of the District, including District psychologist

4 Dr. Jean Ward.

5 On November 18, 2022, the ALJ issued a final administrative decision finding for

6 the District on all seven issues. AR 1033, 1059–60. Regarding the issues appealed to this

7 Court, the ALJ found that Plaintiff did not prove that San Diego denied E.C.D. a FAPE

8 between January 1 and July 8, 2022, by failing to: (1) offer a placement that met his

9 academic needs; (2) offer adequate deaf and hard of hearing services; or (3) provide a clear

10 and specific offer. AR 1059–60.

11 On the first and second issues, the ALJ found that the District did not fail to offer

12 adequate DHH services and a placement that met E.C.D.’s academic needs, because: (1)

13 the educational setting offered by the District was particularly suited to students who are

14 deaf and hard of hearing and all the teachers were quite experienced in instructing and

15 interacting with DHH children; (2) the District witnesses who assessed E.C.D. testified that

16 E.C.D. did not need a full-time DHH co-teacher in his classroom and their testimony was

17 credible; and (3) the testimony of Plaintiff’s witnesses to the contrary was not given

18 substantial weight, because they did not appear to be familiar with the March 2022 IEP as

19 a whole, their testimony was viewed in light of the “snapshot rule,”4 or they never observed

20 E.C.D. in the classroom. AR 1037–49.

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23 4 See AR 1046 (“An IEP is evaluated on the basis of a snapshot in time capturing the

24 information that was available to the IEP team when it made the decisions at issue, not on

the basis of subsequent developments or later-formed opinions. An IEP is not judged in

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hindsight. A tribunal must look to the IEP’s goals and goal achieving methods at the time

26 the plan was implemented and ask whether these methods were reasonably calculated to

confer Student with a meaningful benefit.”) (citing Adams v. State of Oregon, 195 F.3d

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1 On the third issue, the ALJ found that Plaintiff did not prove that the District denied

2 him a FAPE from January 1 to June 8, 2022, by failing to provide a clear and specific offer,

3 because: (1) Plaintiff’s challenge focused on a preliminary draft of the IEP, not the final

4 offer; (2) “the March 13, 2022 IEP team meeting and the final offer in the March 25, 2022

5 IEP removed all doubt and clearly established that the offer was for placement at

6 Lafayette,” and E.C.D.’s parents understood it that way; (3) the March 2022 IEP fully

7 explained the error, eliminating any confusion; (4) even if the offer was confusing, it would

8 have constituted harmless error; and (5) there was no evidence that E.C.D.’s parents

9 rejected the offer because of any confusion about the offered location or any other

10 confusion. AR 1053–58.

11 On February 15, 2023, Plaintiff filed this action against the District as authorized by

12 20 U.S.C. § 1415(i)(2)(A). See ECF No. 1. On August 5, 2024 and September 5, 2024, the

13 Parties filed their merits briefs. See ECF Nos. 35, 42.

14 On October 13, 2023, Plaintiff filed a motion to supplement the Administrative

15 Record with documents concerning events that occurred subsequent to the administrative

16 hearing. ECF No. 21. Specifically, on March 28 and 29 and May 23, 2023, a

17 Neuropsychological-Psychoeducational Evaluation of E.C.D. was performed by

18 neuropsychologist Dr. Spencer Wetter. ECF No. 34-1 at 1. As part of the evaluation, Dr.

19 Wetter reviewed E.C.D.’s developmental history and previous evaluations, and noted that

20 “[d]espite [E.C.D.’s 2021 assessment] results, which appear to reflect the presence of

21 Dyslexia, the topic of a specific learning disorder was not addressed” by the District. ECF

22 No. 34-1 at 3.

23 Additionally, on April 26, 2023, E.C.D. began a program appropriate for students

24 with dyslexia called Wilson Reading System (“WRS”). ECF No. 21-7 at 2. On October 1,

25 2023, Dr. Jean Davenport drafted a Dyslexia Intervention Progress Report based on

26 E.C.D.’s progress with WRS. ECF No. 21-7 at 1.

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1 On October 27, 2023, the District filed its response opposing Plaintiff’s motion to

2 supplement the Administrative Record. ECF No. 22. On June 21, 2024, the Court granted

3 in part Plaintiff’s motion to supplement the Administrative Record as to post-hearing

4 evidence, including reports of E.C.D. by Dr. Wetter and Dr. Davenport. ECF No. 29. In its

5 order, the Court concluded that the reports were non-cumulative and that they “could . . .

6 shed light on whether the District failed to offer a placement that met Plaintiff’s academic

7 needs.” ECF No. 29 at 9.

8 II. STANDARD OF REVIEW

9 Under the IDEA, any “party aggrieved by the findings and decision” reached

10 through the state administrative hearing process “shall have the right to bring a civil action

11 with respect to the complaint . . . in a district court of the United States[.]” 20 U.S.C. §

12 1415(i)(2). The IDEA instructs a reviewing court to “receive the records of the

13 administrative proceedings” and “basing its decision on the preponderance of the evidence,

14 shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2).

15 “Thus, judicial review in IDEA cases differs substantially from judicial review of other

16 agency actions, in which courts generally are confined to the administrative record and are

17 held to a highly deferential standard of review.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d

18 1467, 1471 (9th Cir. 1993).

19 In IDEA cases, “the district court essentially conduct[s] a bench trial based on a

20 stipulated record.” Ojai, 4 F.3d at 1472. Thus, this Court will “read the administrative

21 record, consider the new evidence, and make an independent judgment based on a

22 preponderance of evidence and giving due weight to the hearing officer’s determinations.”

23 Capistrano Unified Sch. Dist. v. Wartenberg By & Through Wartenberg, 59 F.3d 884, 892

24 (9th Cir. 1995).

25 A court’s inquiry in suits under § 1415(e)(2) is twofold. First, the court assesses

26 “whether the IDEA’s procedures were complied with and second whether the district met

27 its substantive obligation to provide a FAPE.” Los Angeles Unified Sch. Dist. v. A.O. by &

1 through Owens, 92 F.4th 1159, 1169 (9th Cir. 2024) (internal citation omitted). “Procedural

2 violations of the IDEA can be harmless, but not if they ‘substantially interfere with the

3 parents’ opportunity to participate in the IEP formulation process, result in the loss of

4 educational opportunity, or actually cause a deprivation of educational benefits.’” Id.

5 Importantly, “[n]ot all procedural violations amount to a denial of FAPE.” J.B. v. Kyrene

6 Elem. Sch. Dist. No. 28, 112 F.4th 1156, 1160 (9th Cir. 2024) (citing L.J. by & through

7 Hudson v. Pittsburg Unified Sch. Dist., 850 F.3d 996, 1003 (9th Cir. 2017)).

8 “A procedural violation denies a free appropriate public education if it results in the

9 loss of an educational opportunity, seriously infringes the parents’ opportunity to

10 participate in the IEP formulation process or causes a deprivation of educational benefits.”

11 J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 953 (9th Cir. 2010); Amanda J. v. Clark

12 County Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001); Doe v. Ala. State Dep’t. of Educ.,

13 915 F.2d 651, 662 (11th Cir. 1990). On the other hand, mere technical violations will not

14 render an IEP invalid. Amanda J., 267 F.3d at 892; Mercer Island Sch. Dist., 592 F.3d at

15 953; see M.H. v. N.Y.C. Dep’t of Educ., No. 10-CV-1042 (RJH), 2011 WL 609880, at *11

16 (S.D.N.Y. Feb. 16, 2011).

17 A school district violates the IDEA’s substantive requirements when it fails to offer

18 an individualized education program “reasonably calculated to enable a child to make

19 progress appropriate in light of the child’s circumstances.” Endrew, 580 U.S. at 403; A.O.

20 by & through Owens, 92 F.4th at 1156.

21 A court reviews “whether the [district] has provided a FAPE de novo,” but it accords

22 deference to the ALJ’s factual findings where they are “thorough and careful.” M.C. by &

23 through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1194 (9th Cir.

24 2017). Courts “treat a hearing officer’s findings as ‘thorough and careful’ when the officer

25 participates in the questioning of witnesses and writes a decision contain[ing] a complete

26 factual background as well as a discrete analysis supporting the ultimate conclusions.” R.B.

27 v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007) (quoting Park, ex rel.

1 Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006)). Neither the

2 hearing duration, the ALJ’s active involvement, nor the length of the ALJ’s opinion are

3 dispositive of an ALJ’s thoroughness and care. Antelope Valley, 858 F.3d at 1194. Instead,

4 this Court “must actually examine the record to determine whether it supports the ALJ’s

5 opinion.” Id. at n.1.

6 The moving party bears the burden of proving that the ALJ’s decision was incorrect

7 by a preponderance of the evidence. Kyrene Elem. Sch. Dist. No. 28, 112 F.4th at 1161.

8 III. ANALYSIS

9 Plaintiff claims that the ALJ wrongly decided that the District did not deny E.C.D.

10 a FAPE between January 1 and June 8, 2022. First, Plaintiff claims that the District did not

11 provide a clear and specific offer. ECF No. 35 at 11. Second, he claims that the District did

12 not offer him adequate DHH services. Id. Third, he claims that the District’s offer of

13 placement did not meet his academic needs. Id. at 8. The Court addresses each of these

14 arguments, in turn, below.

15 A. The District Did Not Deny E.C.D. a FAPE by Failing to Provide a Clear and

Specific Offer

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17 A school district must make eligible students a “formal, written offer” of FAPE in

18 order to satisfy its obligation under the IDEA. Union Sch. Dist. v. Smith, 15 F.3d 1519,

19 1526 (9th Cir. 1994). The Ninth Circuit has explained that this “formal requirement has an

20 important purpose that is not merely technical . . . and should be enforced rigorously.” Id.

21 In particular, the court in Union explained:

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The requirement of a formal, written offer creates a clear record that

23 will do much to eliminate troublesome factual disputes many years later

about when placements were offered, what placements were offered,

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and what additional educational assistance was offered to supplement a

25 placement, if any. Furthermore, a formal, specific offer from a school

district will greatly assist parents in “presenting complaints with respect

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to any matter relating to the . . . educational placement of the child.”

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1 Id. (quoting 20 U.S.C. § 1415(b)). While Union involved a school district’s failure to make

2 any formal written offer, many courts have relied on Union to invalidate IEPs that were

3 offered, but that were insufficiently clear and specific to permit parents to make an

4 intelligent decision whether to accept, decline, or challenge the offer through a due process

5 hearing. Glendale Unified Sch. Dist. v. Almasi, 122 F.Supp.2d 1093, 1107–08 (C.D. Cal.

6 2000); S.H. v. Mount Diablo Unified Sch. Dist., 263 F. Supp. 3d 746 (N.D. Cal. 2017); A.K.

7 v. Alexandria City Sch. Bd., 484 F.3d 672, 681 (4th Cir. 2007); Knable v. Bexley Sch. Dist.,

8 238 F.3d 755, 769 (6th Cir. 2001); Bend LaPine Sch. Dist. v K.H., No. 04-1468, 2005 WL

9 1587241 (D. Ore. June 2, 2005); Mill Valley Elem. Sch. Dist. v. Eastin, No. 98-03812, 32

10 IDELR 140, 32 LPR 6046 (N.D. Cal. Oct. 1, 1999); Marcus I. v. Dept. of Educ., No. 10-

11 00381, 2011 WL 1833207 (D. Haw. May 9, 2011).

12 Plaintiff argues that neither the initial January 2022 IEP nor the revised March 2022

13 IEP amounts to a clear and specific, written offer. The revisions to the January 2022 IEP

14 were made in light of input and requests from E.C.D.’s parents. ECF No. 42 at 5. The Court

15 therefore addresses the revised IEP from March 2022 rather than the earlier version. See

16 20 U.S.C. § 1414(d)(4)(A)(ii); Maroni v. Pemi-Baker Reg’l Sch. Dist., 346 F.3d 247, 256

17 (1st Cir. 2003) (stating that the statute “mandates revision of the IEP to address information

18 provided either by or to parents regarding the child’s educational needs and services”).

19 Plaintiff contends that the March 2022 IEP was unclear because the District’s offer

20 of services was for Lafayette Elementary School, but the IEP contained a page stating in

21 two places that certain services were to be provided at Florence Elementary School. ECF

22 No. 35 at 3. However, it is and was clear that these references were a clerical error. The

23 remainder of the IEP makes clear that the services were to be provided at Lafayette. The

24 March 2022 IEP’s Team Action notes section explained that “[t]he IEP Team recommends

25 placement at Lafayette Elementary School … This IEP document may contain errors that

26 include ‘Florence Elementary’ in the document, as that is where [E.C.D.] is currently

27 enrolled. That is not editable until enrollment changes.” AR 916. The March 2022 IEP

1 meeting likewise clarified that the placement was for Lafayette. AR 925. The conduct of

2 the parties during the IEP meetings and after the conclusion of the meetings similarly

3 indicate that E.C.D.’s parents understood the placement was to be at Lafayette [AR 925,

4 959, 1336, 1339, 1699, 1836], and E.C.D.’s father testified that he understood the

5 placement to be at Lafayette after the March 2022 meeting [AR 1699]. The ALJ found that

6 “the March 13, 2022 IEP team meeting and the final offer in the March 25, 2022 IEP

7 removed all doubt and clearly established that the offer was for placement at Lafayette.

8 E.C.D.’s parents understood it that way when they rejected it.” AR 1056. The Court agrees.

9 The two references in the March 2022 IEP to services being provided at Florence were

10 technical errors and did not result in the denial of a FAPE.

11 B. The District Did Not Deny E.C.D. a FAPE by Failing to Offer Adequate Deaf

and Hard of Hearing Services

12

13 The IDEA’s substantive requirement to provide a FAPE “is satisfied . . . if the child’s

14 IEP sets out an educational program that is ‘reasonably calculated to enable the child to

15 receive educational benefits.’” Endrew, 580 U.S. at 394. An appropriate public education

16 “does not mean the absolutely best or ‘potential-maximizing’ education for the individual

17 child.” R. Z. C. v. N. Shore Sch. Dist., 755 F. App’x 658, 661 (9th Cir. 2018) (quoting

18 Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987)). The question is

19 whether the program, at the time it was drafted, was objectively reasonable and designed

20 to convey a “meaningful benefit” to the student. Adams v. State of Oregon, 195 F.3d 1141,

21 1149 (9th Cir. 1999). When determining if an IEP is reasonable, courts are not to “substitute

22 their own notions of sound educational policy for those of the school authorities which they

23 review.” Endrew, 580 U.S. at 404 (quoting Board of Education v. Rowley, 458 U. S. 176,

24 206 (1982). “At the same time, deference is based on the application of expertise and the

25 exercise of judgment by school authorities.” Endrew, 580 U.S. at 404.

26 Plaintiff argues that five hours per week of DHH services offered in the District’s

27 January 2022 IEP did not meet E.C.D.’s academic needs, denying him a FAPE. ECF No.

1 35 at 11. As noted above, this Court addresses the revised IEP from March 2022, which

2 offered fifteen hours per week for the first 60 days, rather than the January 2022 version.

3 Plaintiff notes that E.C.D. needed “all day DHH services” rather than the fifteen

4 hours per week offered in the March 2022 IEP. ECF No. 35 at 11. However, based on the

5 testimony and evidence presented, the DHH services offered were reasonable for E.C.D.

6 The District assessors and witnesses established that the District IEP and offer were

7 reasonable in light of E.C.D.’s circumstances and reasoned that “too much support can be

8 detrimental” and “can result in learned helplessness.” AR 234, 882, 1486–87, 1489, 1611–

9 14, 1777–80, 1815–1818, 1872; see Mercer Island Sch. Dist., 592 F.3d at 950 (“[C]ourts

10 are ill-equipped to second-guess reasonable choices that school districts have made among

11 appropriate instructional methods.”) (citation omitted); J.G. v. Los Angeles Unified Sch.

12 Dist., No. LACV2001593JGBEX, 2023 WL 8125847, at *10 (C.D. Cal. July 10, 2023)

13 (same); R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1122 (9th Cir. 2011)

14 (“The IDEA accords educators discretion to select from various methods for meeting the

15 individualized needs of a student, provided those practices are reasonably calculated to

16 provide him with educational benefit.”). The ALJ determined that the District witnesses’

17 testimony was credible and gave substantial weight to their testimony, and the Court gives

18 due weight to such findings. AR 1041; see Amanda, 267 F.3d at 893 (holding that we give

19 “due weight” to an ALJ’s credibility findings “so long as they are supported by the

20 record”); see also Legris v. Capistrano Unified Sch. Dist., No. 20-56261, 2021 U.S. App.

21 LEXIS 31138, at *3 (9th Cir. Oct. 18, 2021) (holding that the district court’s deferral to the

22 ALJ’s credibility finding was permissible where the ALJ based her finding on the witness’s

23 live testimony and demeanor, and her finding was supported by the weight of other

24 evidence and questioning the witness’s conclusions).

25 The testimony of Plaintiff’s witnesses, Dr. Hewitt and Ms. Mascolo, does not

26 support Plaintiff’s contention that the IEP offered was unreasonable. AR 1046, 1048. Dr.

27 Hewitt and Ms. Mascolo did not address or show familiarity with the March 2022 IEP,

1 including the fifteen hours per week of DHH support and other services offered. AR 1044,

2 1047–48.5 The ALJ appropriately discounted Dr. Hewitt’s testimony, because she believed

3 the offer was for only five hours per week of DHH support, there was no evidence that she

4 ever observed E.C.D. in any classroom, knew anything about the DHH program at

5 Lafayette, or had any knowledge of the skills or training of the Lafayette staff. See N.B. v.

6 Hellgate Elementary Sch. Dist., 541 F.3d at 1212 (holding it was “reasonable for the

7 hearing officer to rely on the testimony of [the school’s] witnesses because they had

8 observed [the student’s] school performance” in contrast to the parent’s witnesses who

9 “based their opinions predominantly upon file reviews”).

10 “An ALJ does not err so long as the IEP is reasonable, even if other services may

11 have been appropriate.” See C.D. v. Stanislaus Union Sch. Dist., No. 1:22-cv-01389-SKO,

12 2024 U.S. Dist. LEXIS 127005, at *37 (E.D. Cal. July 18, 2024) (citing Endrew, 580 U.S.

13 at 399). Accordingly, even if E.C.D. may have benefited from more than the offered

14 services, that alone does not render the District’s IEP unreasonable. See Endrew, 580 U.S.

15 at 399 (“Any review of an IEP must appreciate that the question is whether the IEP is

16 reasonable, not whether the court regards it as ideal.”); see Stanislaus Union Sch. Dist.,

17 2024 U.S. Dist. LEXIS 127005, at *38; see also Gregory, 811 F.2d at 1314 (finding that a

18 school is not required to provide a program merely because it is preferred by a parent, even

19 if it were better than what the school district offered).

20

21

22

5 According to the ALJ, Dr. Hewitt’s opinions on needed DHH services were

23

apparently offered for the first time at the hearing, and were not communicated to the IEP

24 team at the time of drafting. AR 1045; see Baquerizo v. Garden Grove Unified Sch. Dist.,

826 F.3d 1179, 1187 (9th Cir. 2016) (“When reviewing whether a proposed educational

25

setting is ‘appropriate,’ we employ the ‘snapshot’ rule, which instructs us to judge an IEP

26 not in hindsight, but instead based on the information that was reasonably available to the

parties at the time of the IEP.”) (citing Adams, 195 F.3d at 1149)).

27

1 The ALJ found that Plaintiff “did not meet his burden of proving that San Diego’s

2 March 25, 2022 IEP would have provided insufficient DHH support.” AR 1048. The Court

3 agrees. Based on the Court’s independent review of the record, including the witnesses’

4 testimony and evidence, and affording substantial weight to the ALJ’s thorough factual

5 findings and conclusions, the Court finds that Plaintiff has not carried his burden to show

6 that the ALJ erred in holding that the District provided E.C.D. adequate DHH services from

7 January 1 to July 8, 2022.

8 C. The District Did Not Deny E.C.D. a FAPE by Failing to Offer a Placement That

Met E.C.D.’s Academic Needs

9

10 Plaintiff contends that the District failed to offer a placement that “meets ECD’s

11 academic needs.” ECF No. 35 at 8. However, the argument portion of Plaintiff’s brief does

12 not specify with clarity how the placement failed to meet those needs, or precisely what the

13 placement should have included. See id. at 8-11. The factual background portion of

14 Plaintiff’s brief intimates that the District should have diagnosed E.C.D. with dyslexia, and

15 should have provided him services targeted to that diagnosis. Id. at 5-6. However, Plaintiff

16 gives no indication that he made such an argument to the ALJ. The ALJ’s Decision

17 included a lengthy section concluding that the District’s placement met E.C.D.’s academic

18 needs, but makes no mention of dyslexia; and Plaintiff’s appeal of that decision does not

19 appear to fault the ALJ’s decision in that regard. AR 1037-49.

20 In arguing for the first time on appeal that the District’s placement was deficient for

21 failing to address dyslexia, Plaintiff relies on two reports drafted after the ALJ hearing, by

22 Dr. Spencer Wetter (“the Wetter report”) and Dr. Jean Davenport (“the Davenport report”).

23 The Wetter report contends that “[d]espite [E.C.D.’s 2021 assessment] results, which

24 appear to reflect the presence of Dyslexia, the topic of a specific learning disorder was not

25 addressed” by the District. ECF No. 34-1 at 3. The Davenport report, as described by

26 Plaintiff, reflects that E.C.D. made “tremendous progress” after enrollment in a program

27 for students with dyslexia, and demonstrates that “he needed [and was not provided]

1 reading intervention that targeted his phonological and orthographic processing deficits.”

2 ECF Nos. 35 at 6, 10.6

3 In an appeal challenging an IDEA administrative decision, district courts consider

4 “the records of the administrative proceedings” and “additional evidence at the request of

5 a party[.]” 20 U.S.C. § 1415(i)(2)(C). Additional evidence may include “evidence

6 concerning relevant events occurring subsequent to the administrative hearing[,]” Ojai, 4

7 F.3d at 1473 (quoting Burlington v. Dep’t of Educ., 736 F.2d 773, 790–91 (1st Cir. 1984)),

8 and evidence acquired after the hearing that sheds light on the objective reasonableness of

9 a school district’s actions at the time the school district drafted the IEP, E.M. v. Pajaro

10 Valley Unified Sch. Dist., 652 F.3d 999, 1004 (9th Cir. 2011); Adams, 195 F.3d at 1149.

11 However, the actions of a school district cannot be “judged exclusively in hindsight,” as

12 an IEP is a “snapshot, not a retrospective.” Adams, 195 F.3d at 1149 (quoting Fuhrmann

13 v. East Hanover Bd. of Educ., 993 F.2d 1031, 1041 (3d Cir. 1993).

14 While additional evidence may be considered for these purposes, a plaintiff in an

15 IDEA case is generally not free to raise new arguments for the first time on appeal. See J.S.

16 by and through S.S. v. Eugene Sch. Dist., No. 6:21-cv-1430-MK, 2022 WL 1241705, at

17 *4-5 (D. Ore. Apr. 11, 2022); C.D. v. Atascadero Unified Sch. Dist., No. 2:22-cv-05937-

18 MCS-AGR, 2023 U.S. Dist. LEXIS 97394, at *11 (C.D. Cal. June 5, 2023) (declining the

19 plaintiff’s request to review IDEA issues that were not raised or considered in underlying

20 administrative proceeding); see also Marc. M. v. Dep’t of Ed., 762 F.Supp.2d 1235, 1241

21 (D.Haw. 2011) (same); Hailey M. ex rel. Melinda B. v. Matayoshi, 2011 U.S. Dist. LEXIS

22 101061, 2011 WL 3957206, at *25 (D.Haw. Sept. 7, 2011) (same).

23

24

6 In its June 21, 2024 order, this Court allowed Plaintiff to supplement the

25

administrative record to include the Wetter and Davenport reports, concluding that they

26 were non-cumulative and that they “could … shed light on whether the District failed to

offer a placement that met Plaintiff’s academic needs,” while also noting that the merits

27

1 Here, Plaintiff appeals the ALJ’s determination that the District offered a placement

2 that met E.C.D.’s academic needs. But as set forth in Plaintiff’s merits briefing, the basis

3 for Plaintiff’s assertion that the placement was deficient—namely, the failure to address

4 Plaintiff’s dyslexia—is one that Plaintiff has not advanced before, and one that the ALJ

5 had no opportunity to address.

6 Furthermore, despite Plaintiff’s contention that “the topic of a specific learning

7 disorder was not addressed” by the District in 2021, District psychologist, Dr. Ward,

8 evaluated E.C.D. for and ruled out a specific learning disability in 2021.7 ECF Nos. 34-1

9 at 3; 35 at 6; AR 726. Dr. Ward’s December 13, 2021 evaluation included the diagnostic

10 impression that E.C.D. “does not meet the criteria for Specific Learning Disability based

11 on current assessments and in accordance with Education Code Title 5, Section 3030.” AR

12 726. Although Plaintiff has offered the report of Dr. Wetter that disagrees with Dr. Ward,

13 this later report does not undermine the reasonableness of the District’s reliance on the

14 earlier conclusion, which until recently was unchallenged by Plaintiff. See also Avila v.

15 Spokane Sch. Dist. 81, 686 F. App’x 384, 385 (9th Cir. 2017) (holding that a district’s

16 testing for “specific learning disabilities” was adequate, and that the district was not

17 required to administer special dyslexia subtests); Robinson ex rel. Robinson v. Council

18 Rock Sch. Dist., No. 05-1988, 2006 WL 1983180, at *5-6 (E.D. Penn. July 12, 2006)

19 (holding that a dyslexic student’s IEP provided a FAPE, “despite its lack of comprehensive

20 phonics program designed to treat dyslexia”).

21

22

23

24 7 A specific learning disability is defined in Dr. Ward’s report to mean: “a disorder in

one or more of the basic psychological processes involved in understanding or in using

25

language, spoken or written, that may have manifested itself in the imperfect ability to

26 listen, think, speak, read, write, spell, or do mathematical calculations, including conditions

such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and

27

1 Similarly, the Davenport report does not undermine the adequacy of the District’s

2 placement. Although E.C.D. benefitted from the intervention provided by Dr. Davenport,

3 || that does not render the IEP unreasonable or inadequate. See C.D. v. Stanislaus Union Sch.

4 || Dist., No. 1:22-cv-01389-SKO, 2024 U.S. Dist. LEXIS 127005, at *38 (E.D. Cal. July 18,

5 || 2024) (concluding that “even if [the plaintiff] 1s correct that [the child] may have benefited

6 || from other services, that alone does not render the [d]istrict’s TEP unreasonable’); L.C. on

7 || behalf of A.S. v. Issaquah Sch. Dist., No. C17-1365JLR, 2019 WL 2023567 (W.D. Wash.

8 || May 8, 2019), aff'd sub nom. Crofts v. Issaquah Sch. Dist. No. 411,22 F Ath 1048 (9th Cir.

9 |}2022) (holding that the district was not required to include “dyslexia-specific

10 || methodologies or curricula into [the] IEP” and reasoning that “the IDEA does not require

11 || the [district to design a program to maximize [the student’s]| educational potential’).

12 Accordingly, the Court finds no error in the ALJ’s conclusion that Plaintiff failed to

13 || prove that the District denied him a FAPE between January 1 and July 8, 2022, by failing

14 || to offer a placement that met his academic needs.

15 CONCLUSION

16 For the reasons above, this Court concludes as follows:

17 1. The ALJ’s Decision is AFFIRMED and judgment is entered for the District.

18 2. Plaintiff's request for reimbursement and attorney’s fees [ECF No. 35 at 15],

19 DENIED.

20 The Clerk of Court is directed to close the case.

21 IT IS SO ORDERED. ‘

22 Dated: January 24, 2025 febee 7 ‘ Howe

3 Hon. Robert S. Huie

United States District Judge

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