Jg v. Douglas County ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JG; NG; RG; SG,  No. 06-17380
Plaintiffs-Appellants, D.C. No.
v.  CV-04-00541-LRH/
DOUGLAS COUNTY SCHOOL DISTRICT, RAM
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
September 12, 2008—San Francisco, California
Filed December 24, 2008
Before: Diarmuid F. O’Scannlain, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould;
Concurrence by Judge Bea
16701
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16705
COUNSEL
Janet Belcove-Jalin, William H. Heaivilin, Lynne P. Bigley,
Nevada Disability Advocacy & Law Center, Las Vegas,
Nevada, for the plaintiffs-appellants.
James R. Hales, Rowe & Hales, Minden, Nevada; David B.
Lockie, Lockie & MacFarlan, Elko, Nevada, for the
defendant-appellee.
David A. Campbell, Jonathan Damon, LeBoef, Lamb, Greene
& Macrae, Chicago, Illinois, for the amicus.
OPINION
GOULD, Circuit Judge:
We consider Individuals with Disabilities Education Act
(“IDEA”) claims and a Rehabilitation Act claim of twins, JG
and NG, who have autism, and of their parents, RG and SG
(unless otherwise indicated, “Appellants” refers to all four
Appellants). The controversy arises out of the school district’s
delay in notifying the twins’ parents that it would evaluate the
twins for disabilities; from the amount of time it took the
school district to diagnose them with autism; from the chal-
lenges that confronted the school district in its implementation
of an Individualized Education Program (“IEP”) for each of
the children; and from the school district’s alleged discrimina-
tion against the children by segregating them into a preschool
for developmentally delayed youngsters.
Appellants JG and NG are twin brothers who exhibited
delays in their speech patterns and other developmental diffi-
culties. On May 3, 2003, their mother took them to a free
screening at the Brain Power Community Learning Center
(“the Center”). The Center offers private services for children
16706 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
with disabilities. The Center referred the twins to the Douglas
County School District (“the District”) and told their mother
that the District had a program for developmentally-delayed
children called the TEDDY program.1
On May 5, 2003, the twins’ mother went to the District’s
Child Find Office and received a two-page questionnaire for
each child. She completed the questionnaires, and the Dis-
trict’s Child Find Office confirmed receipt of both question-
naires on May 7, 2003. The parties agree that IDEA required
the District to provide Appellants with notice of a proposal to
evaluate the twins and a copy of IDEA’s procedural safe-
guards on May 7, 2003. 20 U.S.C. § §1415(b)(3), (d)(1)(A)
(2000). The District, however, did not notify the parents that
it would conduct evaluations of the twins until August 15,
2003. IDEA also required the District to evaluate the children
within a reasonable time of the May 7 date. 34 C.F.R.
§ 300.343(b) (1999). Although the District began administer-
ing tests to evaluate the twins as early as June 20, 2003, it did
not complete until August 15, 2003, any evaluation of the
children. It did not begin to evaluate the twins for autism until
September 25, 2003.
The District referred the twins to its Child Find Day on
June 20, 2003. The twins’ mother asked if the twins could be
tested earlier, but the District’s Special Education Teacher
who reviewed the twins’ initial forms did not have a high
level of concern and did not advance the test date.
Without notice that the District would evaluate the twins,
Appellants obtained private evaluations for the twins from the
Center. On May 14, 2003, the Center evaluated the twins, and
the twins began receiving special education services one week
later.
1
TEDDY stands for Teaching Early Developmentally Delayed Young-
sters.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16707
On June 20, 2003, the twins attended the District’s Child
Find Day. Their mother listed “speech development” as her
primary concern and crying, tantrumming, and toileting as
other behavioral issues. She also told the District’s Special
Education Teacher that both attended the Center for speech
problems. The Special Education Teacher and the School
Speech Pathologist each gave tests to the twins and received
a lack of responses. This lack of responses showed that the
twins were developmentally delayed, and the Special Educa-
tion Teacher concluded that she could not conduct further
screening at that time. The Special Education Teacher sched-
uled an assessment meeting on August 15, 2003, to conduct
more individualized testing. The Special Education Teacher
informally expressed that the District could use the scores
from the tests the Center had administered, but she did not
make a specific request for the records.
Also in mid-June, the Center Discrete Trial Trainer,2 an
individual trained in working with autistic children, met the
twins. She observed them for several weeks at the Center and
at home. The Center Discrete Trial Trainer started working
with the twins on July 15, 2003, but it took several more
weeks before she could begin her assessment of either of them
and another two weeks after that before she implemented dis-
crete trial training. Thus, although the Center had begun test-
ing the twins for autism in May, it was still assessing the
twins for autism in July.
By late July, some of the Center staff believed that the
twins were autistic. On July 28, 2003, the Director of the Cen-
ter contacted the District’s Special Education Director and
relayed the Center’s suspicions. The Director of the Center
said that the Center Speech Pathologist, who had worked with
2
Discrete Trial Training is a commonly-used therapy for Autistic chil-
dren: The teacher prompts the child, then the child responds with a behav-
ior and finally there is a consequence—some type of positive
reinforcement.
16708 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
the twins the longest, did not believe that the twins had
autism. On the same day, the twins’ mother called the District
to ask if the assessments could be scheduled earlier. The Dis-
trict did not change the test date.
On August 15, 2003, the District conducted an assessment
of each twin and held an assessment meeting. At that time, the
twins’ parents received a copy of the Notice of Parent Rights,
and their mother signed a “Parent Consent to Evaluate” form.
The parents and the Special Education Teacher also filled out
Early Childhood Screening Profiles for the twins. The District
staff worked with the twins for more than an hour but was
unable to get responses from either of the twins on many
questions. The tests that the staff members were able to
administer supported the conclusion that the twins had “devel-
opmental delays with speech delay as a major concern.”
Despite the July 28 phone call from the Center, the August
15 assessments did not include any tests for autism. In fact,
the School Special Education Director had not relayed the
Center’s suspicions to the School Psychologist, who would
have administered any tests for autism. Determining whether
a student has autism requires many assessments and takes a
good deal of time. Some of the tests require observation of the
student for more than a month because it is helpful to get to
know a child before assessing him or her.3
On August 25, 2003, the District held an IEP meeting with
the twins’ mother. At the meeting, the District presented her
with pre-written IEPs as draft copies, and the District found
the twins eligible for services under the developmentally
3
The Center administered the Child Autism Rating Scale autism test on
the first day of its evaluations, but the Center’s Discrete Trial Trainer took
several weeks to complete the assessments. The record is unclear when the
Center concluded the twins had autism. But the July 28, 2003, conversa-
tion with the District only relayed that the Center suspected the twins were
autistic. Thus, the Center was not certain in its diagnosis more than two
months after it began evaluating the children.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16709
delayed category and offered services. The IEPs did not men-
tion autism.
The twins’ mother attended the August 25, 2003, meeting
with a binder labeled “Autism,” and the School Psychologist
asked if there were concerns regarding the twins being autis-
tic. The twins’ mother responded that the Center staff thought
that the twins could be autistic but that they were not sure.
On August 25, 2003, the twins began attending the Dis-
trict’s TEDDY program. They continued receiving services at
the Center to supplement the program.
On September 25, 2003, one month after the School Psy-
chologist and two months after the Special Education Director
had heard about the possibility of autism, the School Psychol-
ogist began assessing the twins for autism. On October 1,
2003, the parents sent the District a letter stating that the twins
had been evaluated as having autism and requesting payment
for Center services.
On October 7, 2003, the District asked the parents to sign
a Consent for Release of Information from the Center. They
refused. The twins’ mother agreed, however, to bring the Cen-
ter staff to a meeting on October 8, 2003. At that meeting, the
Center shared some data. The parents said that they would not
provide more information from the Center unless the District
paid for it.
On October 9, 13, and 16, 2003, the School Psychologist
completed several tests to determine whether the twins were
autistic. She determined that both twins were mildly-
moderately autistic. The District began working on new IEPs
to propose for the twins.
On October 9, 2003, the Special Education Teacher told the
mother about her concern that she would not be able to imple-
ment the newly proposed IEP. She became comfortable with
16710 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
her ability to implement the IEPs by early November, after
learning that the District would provide her with more train-
ing.
Both twins began exhibiting new inappropriate behaviors
during the week of October 9, 2003. These included choking
their younger brother, stomping on books, and tearing up
books. The twins, however, had improved since they enrolled
in the TEDDY program, with a decreased resistance to toilet-
ing and an increased ability to follow directions and rules.
The parents removed the twins from the TEDDY program
on October 13, 2003, expressing concern about the new prob-
lem behaviors. The parents again asked the District to pay for
the twins to attend the Center.
On October 17, 2003, the District held a meeting to update
the twins’ IEPs with the autism results. The District deter-
mined that both twins were eligible as autistic: the District
found JG eligible at an October 21, 2003, meeting and NG
eligible at a November 4, 2003, meeting. The District pro-
posed new IEPs that added time for discrete trial training,
extended school year, and functional behavior analysis at the
twins’ home and school.
On October 30, 2003, the twins’ mother called the District
and asked who would conduct the discrete trial trainings and
where they would be held. The District Program Specialist
responded that it had contracted with two private behavior
analysts for support in implementing the discrete trial training
program.
In early November 2003, the parents rejected the twins’
IEPs. They wanted the Center Discrete Trial Teacher to con-
tinue working with the twins. The District had considered hir-
ing her, but she did not have early childhood authorization.
She was also reluctant to work for the District except in a
supervisory role.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16711
On November 10, 2003, the Special Education Director
wrote a letter to the parents in which she described the pro-
posal for a Free Appropriate Public Education (“FAPE”),
refused to pay for the Center’s services, and stated that the
District would deliver the discrete trials in a one-on-one and
small group basis.
The parents stopped sending the twins to the Center in mid-
November because the parents could no longer pay for the
services. The parents chose to keep the twins at home, and the
twins did not receive any services.
On December 4, 2003, Appellants requested a due process
hearing. The Hearing Officer held a hearing from February
16-20, 2004. She found that the District had committed proce-
dural violations by not evaluating the twins in a timely man-
ner. She concluded that Appellants should be compensated for
services between August 13 and August 25, awarding $800.00
to compensate for those services.
The parties appealed, and on September 2, 2004, the State
Review Officer adopted all of the Hearing Officer’s findings
of fact but reversed her decision awarding the $800.00. The
State Review Officer concluded, however, that the District
had denied the twins a FAPE when it did not provide Appel-
lants with a notice of proposal to evaluate and notice of proce-
dural safeguards on May 7. The State Review Officer ordered
the District to compensate Appellants fifty percent of the cost
of obtaining the Center’s evaluations, a total of $835.
On September 28, 2004, Appellants appealed to the district
court. They also alleged discrimination in violation of section
504 of the Rehabilitation Act of 1973. The district court
affirmed the State Review Officer’s decision, granted the Dis-
trict’s motion for summary judgment on the discrimination
claim, and denied Appellant’s cross-motion for summary
judgment. Appellants filed a timely notice of appeal.
16712 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
On appeal, Appellants argue (1) that the district court
abused its discretion in reducing their award by fifty percent
for equitable reasons and abused its discretion by not award-
ing them the costs of services; (2) that the August 2003 IEPs
were not adequate IEPs and did not provide the twins with a
FAPE; (3) that JG’s October 2003 IEP and NG’s November
2003 IEP did not provide the twins with a FAPE; and (4) that
the district court erred in granting the District’s motion for
summary judgment and denying Appellants’ motion for sum-
mary judgment on the Rehabilitation Act claim.
STANDARD OF REVIEW
We review the district court’s findings of fact for clear
error, even when the district court based those findings on an
administrative record. Van Duyn v. Baker Sch. Dist. 5J, 502
F.3d 811, 817 (9th Cir. 2007); Amanda J. v. Clark County
Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). We review the
district court’s conclusions of law de novo. Amanda J., 267
F.3d at 887.
In IDEA cases, unlike other cases reviewing administrative
action, we do not employ a highly deferential standard of
review. Id. Nevertheless, complete de novo review “is inap-
propriate.” Id. We give “due weight” to the state administra-
tive proceedings. Van Duyn, 502 F.3d at 817. “[T]he fact-
intensive nature of a special education eligibility determina-
tion coupled with considerations of judicial economy render
a more deferential approach appropriate.” Hood v. Encinitas
Union Sch. Dist., 486 F.3d 1099, 1104 n.4 (9th Cir. 2007).
We give particular deference to “thorough and careful”
administrative findings. R.B. ex rel. F.B. v. Napa Valley Uni-
fied Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007) (internal
quotation marks and citation omitted).
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16713
Analysis
Children with disabilities are entitled to a free public edu-
cation, and they are entitled to education designed and tai-
lored to be appropriate to their disabilities. By these means
disabled children will be integrated into society and enhance
their personal well-being and their important societal contri-
butions. Congress enacted IDEA to ensure that children with
disabilities receive a FAPE. 20 U.S.C. § 1412(1) (2000). The
Supreme Court has previously said that a FAPE must provide
a “basic floor of opportunity” to disabled students, not a
“potential-maximizing education.” Bd. of Educ. v. Rowley,
458 U.S. 176, 201 & n.23 (1982). In cases brought under
§ 1415(e)(2), we consider, first, whether the state complied
with the procedures set forth in the Act,4 and, second, whether
4
In Amanda J., we stated:
In addition to establishing substantive requirements, the IDEA
also includes procedural safeguards which, if violated, may pre-
vent a child from receiving a FAPE. Among the most important
procedural safeguards are those that protect the parents’ right to
be involved in the development of their child’s educational plan.
Parents not only represent the best interests of their child in the
IEP development process, they also provide information about
the child critical to developing a comprehensive IEP and which
only they are in a position to know. To guarantee parents the abil-
ity to make informed decisions about their child’s education, the
IDEA grants them the right to “examine all relevant records”
relating to their child’s “identification, evaluation, and educa-
tional placement,” as well as “to obtain an independent educa-
tional evaluation” of their child if they disagree with what the
school district or state agency has found. 20 U.S.C.
§ 1415(b)(1)(A). “[P]arents have the right to ‘present complaints
with respect to any matter relating to the identification, evalua-
tion, or educational placement of the child, or the provision of [a
FAPE] to such child.’ ” 20 U.S.C. § 1415(b)(1)(E). After making
their complaint, the parents are entitled to “an impartial due pro-
cess hearing . . . conducted by the State educational agency or by
the local educational agency or an intermediate educational unit,
as determined by State law or by the State educational agency,”
20 U.S.C. § 1415 (b)(2), and if either party is dissatisfied with the
state educational agency’s review, they may bring a civil action
in state or federal court, 20 U.S.C. § 1415(e)(2).
Amanda J., 267 F.3d at 882 (footnote omitted).
16714 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
the individualized educational program developed through the
Act’s procedures was reasonably calculated to give the child
appropriate educational benefits.5 Id. at 206-07.
Compliance with IDEA procedures is “essential to ensuring
that every eligible child receives a FAPE, and those proce-
dures which provide for meaningful parental participation are
particularly important.” Amanda J., 267 F.3d at 891. “When
the elaborate and highly specific procedural safeguards
embodied in [IDEA] are contrasted with the general and
somewhat imprecise substantive admonitions contained in the
Act, we think that the importance Congress attached to these
procedural safeguards cannot be gainsaid.” Rowley, 458 U.S.
at 205.
A. Remedies for the District’s Procedural Violation
[1] IDEA requires school districts to provide “[w]ritten
prior notice to the parents of the child . . . whenever the local
education agency . . . (A) proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation,
or educational placement of the child, or the provision of a
free appropriate public education to the child.” 20 U.S.C.
§1415(b)(3) (2000). The District did not provide Appellants
with this notice until August 15, 2003, but it should have pro-
vided the notice on May 7, 2003.
5
We also noted that:
The IDEA provides states with federal funds to help educate chil-
dren with disabilities if they provide every qualified child with a
FAPE that meets the federal statutory requirements. Congress
enacted the IDEA “to assure that all children with disabilities
have available to them . . . a free appropriate public education
which emphasizes special education and related services
designed to meet their unique needs . . . .”
Amanda J., 267 F.3d at 882 (footnote omitted) (quoting 20 U.S.C.
§ 1400(c) (1994)).
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16715
[2] Both parties agree that the District committed a proce-
dural violation when it did not inform Appellants of its
impending evaluations of the twins and that this violation
deprived the twins of a FAPE. Appellants argue, however,
that the remedy imposed by the district court was an abuse of
discretion. Specifically, Appellants urge us to hold that they
should receive a full reimbursement for the Center’s evalua-
tions of the twins and reimbursement for the Center’s services
between June 23 and August 25, 2003.
Under IDEA, the district court has the power to grant
appropriate relief in equity. 20 U.S.C. § 1415(i)(2)(B) (2000);
Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359,
374 (1985). A district court reviews the conduct of both par-
ties in fashioning relief. W.G. v. Bd of Trs. of Target Range
Sch. Dist., 960 F.2d 1479, 1486 (9th Cir. 1992). We review
the district court’s equitable award for abuse of discretion.
Forest Grove Sch. Dist. No. 23 v. T.A., 523 F.3d 1078, 1084-
85 (9th Cir. 2008).
1. Reimbursement for the Center’s Evaluations
[3] Appellants argue that they were not legally obligated to
share the Center’s evaluations and that the reduction in their
award unfairly punishes them. A school district has an inde-
pendent duty to evaluate children after notice that they may
have learning disabilities. 20 U.S.C. §§ 1412 (a)(3),(7)(2000);
id. § 1414; N.B. v. Hellgate Elem. Sch. Dist., 541 F.3d 1202,
1209-10 (9th Cir. 2008).
[4] Notwithstanding the parents’ conduct, the District was
duty-bound to evaluate the twins. In Target Range, we con-
cluded that even though the parents had agreed to secure the
child’s private school’s participation in an IEP meeting, the
school district had to ensure that the private school partici-
pated. Target Range, 960 F.2d at 1484-85. Although we held
that the parents’ actions were relevant in determining relief,
we did not reduce their reimbursement. Id. at 1486. In another
16716 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
case, the parents did not turn over a full doctor’s report about
their child. Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th
Cir. 1994). This also did not excuse the school district’s obli-
gation to obtain evaluations for itself, and those parents were
also entitled to a full reimbursement. Id. at 1527.
[5] Appellants did not receive notice that the District would
evaluate the twins. Shortly after they should have received
notice, they took their children to a private Center to evaluate
them. The conduct of the parents in seeking private evaluation
was reasonable when they were not told that the District
would conduct evaluations of their children. Even if Appel-
lants had shared the Center’s results with the District, the Dis-
trict’s obligation to conduct its own evaluations remained.
Target Range, 960 F.2d at 1484-85; Union Sch., 15 F.3d at
1524. Appellants’ refusal to share this information, therefore,
did not harm the District. It had to obtain its own evaluation.
It would be improper to reduce Appellants’ award when their
conduct did not harm the District. See 1 Dan B. Dobbs, Law
of Remedies §2.4(2), at 96 (2d ed. 1993) (discussing reducing
equitable awards for unclean hands and stating “the plaintiff’s
remedy against the defendant should not be denied unless his
misconduct has actually harmed the defendant, or has at least
put the defendant in substantial risk of harm from that mis-
conduct”).
[6] Appellants’ refusal to share information that they had
no obligation to share has no connection to the District’s vio-
lation of IDEA’s notice provisions. Appellants did not abso-
lutely refuse to share this information until October, long after
the District’s violation of its duty to give notice of planned
evaluations had occurred. Because no causal connection exists
between the parents’ refusal to share the information they
gained from the Center and the District’s prior delay in pro-
viding them notice, Appellants are entitled to a full reimburse-
ment. See id. at 95 (noting that “courts are agreed that the
plaintiff’s improper conduct, whatever it is, must be related in
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16717
some substantial and significant way to the claim he now
asserts” for the court to reduce equitable relief).
[7] We conclude that the district court abused its discretion
when it affirmed the award of only half of the costs of the
twins’ evaluations. Appellants are entitled to $1,670.00, the
full reimbursement for the twins’ evaluations.
2. Reimbursement for the Center’s Services
Although in some cases we have reviewed the question of
reimbursement de novo, we have recognized that this was not
in keeping with the text of the statute nor the dictates of
Supreme Court precedent. Forest Grove, 523 F.3d at 1084-85.
Thus, we review the denial of reimbursement for abuse of dis-
cretion.
Appellants contend that the district court abused its discre-
tion when it did not grant equitable relief for the loss of ser-
vices. The district court concluded that no relief was
appropriate because the twins were not entitled to services
during that time. Appellants argue that they paid for services
during this time because they did not know that the District
would provide services; that the twins needed the services;
and that the twins should have been eligible for services after
June 23, but the District had unreasonably delayed the evalua-
tions.
The District violated IDEA when it did not provide Appel-
lants notice of the procedural safeguards of IDEA. 20 U.S.C.
§ 1415(b)(3) (2000). Those safeguards, however, only notify
the parents about a pending evaluation. The District must pro-
vide services only upon a determination of eligibility. Id.§§ 1414, 1415(j). It would be incongruous to compensate
Appellants for services before the District had determined the
twins were eligible for them.
Appellants also argue the twins needed services. The twins’
needs, however, have no bearing on the procedural violation
16718 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
that occurred on May 7, 2003. Further, had the Appellants
received notice of IDEA procedures, they would have learned
that the District had no obligation to provide services until
after the twins’ evaluations. This would likely have led
Appellants to obtain services on their own.
The State Review Officer found and the District Court
affirmed that the August 25, 2003, evaluations were timely
under IDEA. Appellants argue that the evaluation delay was
unreasonable.6 The District argues that it complied with the
state administrative rule, a forty-five-school-day timeline for
evaluating children. Nev. Admin. Code § 388.377(1)(A). We
consider what deference, if any, must be given by us to the
Nevada regulation based on the fact that the Secretary of Edu-
cation approved it when determining to disburse IDEA funds.
We also consider whether, regardless of the Nevada regula-
tion, the District’s actions in this instance were reasonable.
a. The Nevada Statute and IDEA
[8] IDEA “leaves to the States the primary responsibility
for developing and executing educational programs for handi-
capped children, [but] it imposes significant requirements to
be followed in the discharge of that responsibility.” Rowley,
458 U.S. at 183. It requires that a school district conduct an
evaluation in a reasonable time. Assistance to States for Edu-
cation of Children With Disabilities and the Early Interven-
tion Program for Infants and Toddlers with Disabilities, 64
Fed. Reg. 12406, 12440 (Mar. 12, 1999) (implementing 34
6
It may be argued that this issue was not raised because it was not made
explicit in Appellants’ opening brief and it should be deemed waived. Rat-
tlesnake Coal. v. U.S. Envt. Prot. Agency, 509 F.3d 1095, 1100 (9th Cir.
2007). However, we think a fair reading of the opening brief implicitly
raises this issue and the Center’s brief argued that its evaluations were
timely, and so we do not hold this argument waived. See Alcaraz v. INS,
384 F.3d 1150, 1161 (9th Cir. 2004) (holding that an exception to the
waiver rule exists when the failure to properly raise the issue caused no
prejudice to the opposing party).
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16719
C.F.R. § 300.343). But it allows states to establish their own
procedures. The Act ensures compliance by conditioning
funds on the Secretary of Education approving those proce-
dures. 20 U.S.C. § 1412(a) (2000).
[9] Although the text of the statute is silent on evaluation
timeliness, the Secretary of Education has promulgated regu-
lations that impose a “reasonable time” requirement. See id.§1414(a) (2000); 34 C.F.R. § 300.343 (1999). Specifically, in
1999 the Secretary implemented a regulation that stated:
“Each public agency shall ensure that within a reasonable
period of time following the agency’s receipt of parent con-
sent to an initial evaluation of a child- (i) The child is evalu-
ated . . . .” 34 C.F.R. § 300.343 (1999). We have also required
a timely evaluation in all areas of suspected disabilities. See
Hellgate Elem. Sch. Dist, 541 F.3d at 1209-10 (concluding
that a district that did not obtain an evaluation for autism for
six months denied the child a FAPE).
Department of Education letters interpreting and explaining
IDEA have also emphasized the need for an initial evaluation
to occur within a reasonable time. The Office of Special Edu-
cation Programs, the principal office for administering IDEA,
has stated that an initial evaluation must be conducted “with-
out undue delay.” Letter from Thomas Hehir, Dir., Office of
Special Educ. Programs, to Jerry Saperstone, Mental Health
Services System, 21 IDELR 1127 (OSEP 1994); see also 20
U.S.C. § 1402 (2000). That Office also noted that the determi-
nation of whether a school district did not conduct a timely
evaluation according to IDEA and applicable state standards
must be made on a case-by-case basis. Letter from Stephanie
Smith Lee, Dir., Office of Special Educ. Programs, to Beth
Davis-Wellington, Children’s Advocacy Network (Aug. 19,
2003) available at http://www.ed.gov/policy/speced/guid/
idea/letters/2003-3/davis081903fape3q2003.pdf.
[10] In 1999, the Department of Education declined to
impose a specific timeline, stating that doing so “could result
16720 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
in the timelines being implemented only in a compliance
sense, without regard to meeting the spirit of the requirement
. . . . Although no specific timeline is given, implementation
should be done with all due haste.” 64 Fed. Reg. at 12581.
The Secretary’s refusal to adopt a specific timeline also sup-
ports the conclusion that the reasonableness of a child’s eval-
uation depends on the individual circumstances.7
The Secretary of Education’s determination that a state’s
procedures comply with IDEA is entitled to some level of defer-
ence.8 See Lukhard v. Reed, 481 U.S. 368, 381 (1987) (noting
the Secretary of Health and Human Services was entitled to
substantial deference in his conclusion that a state’s regulation
that included personal injury awards in determining a family’s
“income and resources” was consistent with HHS regulations
that were silent on that issue). The Secretary’s finding that
Nevada’s regulations comply with IDEA requirements “cons-
titute[s] a body of experience and informed judgment to
which [we] may properly resort for guidance.” See Skidmore
7
A year after the events in this case occurred, Congress amended the
Act to allow for more state discretion in imposing timelines for an evalua-
tion. The 2004 amendments to the Act require evaluations to occur “within
60 days of receiving parental consent for the evaluation, or, if the State
establishes a timeframe within which the evaluation must be concluded,
within such timeframe.” 20 U.S.C. § 1414(a)(1)(C)(i)(I) (Supp. V 2005).
In promulgating regulations to implement this part of the statute, the
Department of Education explicitly declined to state that sixty days was
the maximum timeframe. Instead, it stated the Act was intended “to permit
States to make reasoned determinations of the appropriate period of time
in which evaluations should be conducted based on particular State cir-
cumstances.” Assistance to the States for Education of Children with Dis-
abilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg.
46540, 46637 (Aug. 14, 2006). We do not reach issues relating to the
interpretation of the statute as amended.
8
Although a state agency’s interpretation of federal law is not entitled
to deference, Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1495 (9th Cir.
1997), the Secretary’s approval of that agency’s interpretation is due some
deference because it shows a federal agency’s interpretation of the federal
statute that it is charged to administer.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16721
v. Swift & Co., 323 U.S. 134, 140 (1944). While we recognize
the Secretary has this experience and judgment, we do not
have the benefit of a written interpretation or formal opinion.
Moreover, when the Secretary approved the Nevada regula-
tion generally as a condition to the state receiving federal
funds, he did not indicate that he determined that the time
limit was reasonable in each case. As such, we do not give the
Secretary’s judgment much weight.
[11] We hold that Nevada’s forty-five-school-day timeline
is not an inconsistent interpretation of IDEA’s reasonable
timeliness requirement. We do not hold, however, that it pro-
vides school districts with a safe-harbor under the applicable
statute. Regardless of compliance with a state regulatory
requirement, IDEA requires that districts act within a reason-
able time to evaluate potentially disabled children. To be sure,
a failure to comply with the state’s regulation is good evi-
dence of unreasonable delay.9 But compliance with the regu-
lation will not necessarily mean that in each case the school
district completed its investigation in a reasonable period. We
are impressed that the purposes of the IDEA will be best ful-
filled when school districts act as expeditiously as is practi-
cally possible to complete the evaluations of disabled
children.
IDEA requires courts to consider each child’s case individ-
ually. See generally Rowley, 458 U.S. 176. To allow a state
to use its regulations as a safe harbor in the absence of a con-
gressional directive or regulation allowing for such would
flout Congress’s intent that judicial review of IDEA claims be
child-specific. Compliance with the state regulation is rele-
vant and should be considered, but the ultimate and disposi-
tive question is whether the District acted in a reasonable
time.
9
Indeed, a violation of the state regulation would be actionable. Target
Range, 960 F.2d at 1483 (“State standards that are not inconsistent with
federal standards [under IDEA] are also enforceable in federal court.”).
16722 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
b. The Reasonableness of the Evaluation Timeframe
The District was required to give Appellants notice and a
consent form on May 7, 2003. From that date until August 25,
2003, when the twins began receiving services, is 110 calen-
dar days and thirty-eight school days.
[12] The 110-day delay was reasonable in this case. Noth-
ing occurred at the June 20 Child Find Day that indicated the
District should expedite the evaluations. The earliest the Dis-
trict had any notice of suspected autism was July 28, 2003.
The District began evaluating the twins one month later and
began administering tests for autism one month after that. The
Hearing Officer credited testimony that stated this one-month
delay was essential to produce valid test results. Premature
testing without requisite trust and comfort level between child
and evaluator would be ineffective. Based on the testimony
that the Hearing Officer considered credible, the delay was
not unreasonable.
[13] Small administrative delays, like this one, and espe-
cially delays needed to promote effective test results, should
not render the District’s actions unreasonable. It also makes
sense to allow school districts a degree of leeway during sum-
mer vacation. See Doe v. Metro. Nashville Pub. Schs., 9 F.
App’x. 453 (6th Cir. 2001) (upholding a six-month delay
where the child was out of state, it occurred over the holidays,
and it was difficult for the school to obtain requested informa-
tion).
Our holding does not encompass a situation where a school
district simply delays in the face of a referral for a potentially
autistic child solely because summer vacation makes a timely
evaluation difficult. In Adams v. Oregon, the school district
reduced a child’s services to accommodate district staff’s
summer vacation plans. 195 F.3d 1141, 1144 (9th Cir. 1999).
The reduction had no bearing on the child’s unique needs and
therefore deprived the child of a FAPE. Id. at 1150-51. The
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16723
school district in Adams knew that the child had an urgent
need for services. Id. In our case, the District did not have
knowledge or even notice of the twins’ autism until about two
weeks before the scheduled assessments.
In Hellgate, the district learned a student was potentially
autistic in August, referred him to another institution for an
autism evaluation in November, and then did not obtain the
evaluation until March. N.B. v. Hellgate Elementary Sch. Dist.
541 F.3d at 1205-06. We concluded that this resulted in a
denial of a FAPE. Id. at 1208. Here, the District completed
the twins’ evaluations within three months of receiving notice
that the children potentially suffered from autism.
We give “due weight” to the administrative proceedings.
Van Duyn, 502 F.3d at 817. The State Review Officer care-
fully considered the record and found the District evaluated
the twins in a reasonable timeframe. Specifically, the State
Review Officer found the Hearing Officer’s conclusion that
extended school year days should be included in the forty-
five-school-day timeline was error. Without including those
days, the District had complied with the timeline. He further
found that the District had evaluated the twins in a reasonable
time. He noted that this was not a case, like Adams, where the
District had reduced services solely for its own convenience.
Rather, the State Review Officer concluded that the District
needed to coordinate its obligations to many children over the
summer while also meeting the forty-five-school-day time-
line. Relying on the Hearing Officer’s finding that the District
staff had no reasonable basis to suspect the twins were autistic
on June 20, 2003, he concluded that the August 15, 2003
assessment date was reasonable. Having considered the record
and the arguments presented by the parties as well as the
applicable law, we will not disturb the State Review Officer’s
finding.
[14] We hold that the district court abused its discretion in
reducing the reimbursement of evaluation costs. The district
16724 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
court did not abuse its discretion in declining to award costs
for services that the twins received between June 23 and
August 24, 2003.
B. The August 2003 IEPs
1. Alleged Procedural Violation
Appellants argue that the District did not comply with pro-
cedures set forth in the Act in conducting the August 25,
2003, evaluations. Specifically, Appellants urge us to con-
clude that the District did not conduct a proper evaluation
because it did not test the twins for autism before it finalized
the August 2003, IEPs. Appellants further assert that even if
the District did comply with IDEA procedures in conducting
the evaluations, the developed IEPs were not reasonably cal-
culated to benefit the twins.
The district court found that the August 25, 2003, evalua-
tions were “full and individual initial evaluations,” as required
by IDEA. 20 U.S.C. § 1414(a)(1)(A) (2000). IDEA requires
that a school district use “a variety of assessment tools and
strategies . . . [and] use technically sound instruments.” Id.§ 1414(a)(2)(A),(C). Any standardized tests must “have been
validated for the specific purpose for which they are used; . . .
administered by trained and knowledgeable personnel; and
. . . administered in accordance with any instructions provided
by the producer of such tests.” Id. § 1414(b)(3). The evalua-
tions must be “sufficiently comprehensive to identify all of
the child’s special education and related service needs,
whether or not commonly linked to the disability category in
which the child has been classified.” 34 C.F.R.
§ 300.532(2)(h) (1999).
Appellants argue that the District did not fulfill these
requirements and that the District did not evaluate the twins
within the meaning of IDEA. Appellants contend that the Dis-
trict should have assessed the twins using Wechsler’s Pre-
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16725
school and Primary Scales of Intelligence, the Childhood
Autism Rating Scale, and the Peabody Picture Vocabulary
Tests. The District used these tests in October.
The District responds that administering these tests in
August would have violated IDEA’s requirement that it
administer the assessments in the manner most likely to yield
accurate information. Id. These tests would not yield valid
results until the twins had become familiar with the District
staff, particularly in light of the twins’ unwillingness to
respond to the staff’s questions.
The District administered several tests before the August
25, 2003, IEP meeting: the twins’ mother completed a ques-
tionnaire on May 5, 2003; a District staff member gave
Assessments of Phonological Process on June 20, 2003; and
the District administered AGS Early Screening Profile Home/
Health Questionnaires providing information about parent/
child interactions and the twins’ health.
The Hearing Officer, State Review Officer, and district
court all found the August evaluations were evaluations
within the meaning of IDEA, crediting the District’s staff tes-
timony about the dubious reliability of tests administered too
early. While the Center administered some autism tests quite
early, the Discrete Trial Teacher did not even begin evaluat-
ing the twins until one month after she began observing
them—month after they began attending the Center, lending
further credence to the District’s contentions. Some of the
staff at the Center did not believe the twins were autistic as
late as August 15, 2003. Thus, although the Center had stated
its suspicions as early as July 28, 2003, its results then were
not definitive.
[15] The Hearing Officer’s findings were “thorough and
careful” and are thus due greater deference. See Napa Valley
Unified Sch. Dist., 496 F.3d at 937 (internal quotation marks
and citation omitted). The Hearing Officer found the District
16726 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
Psychologist’s testimony credible and she noted that some of
the mandatory tests for autism require observation of the child
for over a month. Giving the Hearing Officer due deference,
we agree that the District could not effectively administer the
autism tests until after the test administrators had gotten to
know the twins. Because the District could not immediately
administer the tests for autism in a valid manner, as required
by IDEA, the August evaluations qualify as initial evaluations
under IDEA. 34 C.F.R. §§ 300.531, 300.532 (1999).
In Hellgate, we determined that the IEP team could not
develop a plan reasonably calculated to provide the child with
a meaningful educational benefit for the school year without
an autism evaluation. Hellgate Elem. Sch. Dist., 541 F.3d at
1209-10. The district in Hellgate received notice that the child
could be autistic in August but did not obtain an evaluation
and convene an IEP meeting to address the child’s autism
until March. See id. at 1205-06. By contrast, the District here
convened IEP meetings to address the twins’ autism within
two months of finalizing the original IEPs. The District had
taken the time necessary to conduct proper and valid assess-
ments and then had begun addressing what additional services
the twins needed.
Because we hold that the August evaluations qualify as ini-
tial evaluations under IDEA, we reject the contention that
there was at the outset a lack of evaluations resulting in the
denial of a FAPE.
2. Alleged Substantive Violation
Appellants also argue that the August IEPs were not rea-
sonably calculated to provide the twins with educational bene-
fits because the IEPs did not address the twins’ autism. We
consider the IEP at the time of its implementation, not in
hindsight, and ask if its methods were reasonably calculated
to confer an educational benefit on the child. Adams, 195 F.3d
at 1149.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16727
The twins received ninety minutes of speech and language
services twice a week, and the Special Education Teacher
individualized the twins’ services in the TEDDY program by
relying on index cards. These services gave the twins educa-
tional benefits. Importantly, the District was pursuing autism
eligibility determinations. The District, however, reasonably
calculated that the August IEPs could confer educational ben-
efits on the twins based on the tests that the District could val-
idly administer in August. Further, the twins made progress in
certain areas while they attended the TEDDY program. Their
IEPs that were developed after the autism determination con-
tinued their placement in the TEDDY program.
Finally, Appellants also argue that the twins’ August IEPs
were not individually tailored.10 IDEA requires IEPs be indi-
vidual tailored to the unique needs of each child. Amanda J.,
267 F.3d at 894. The August 15, 2003, assessments only
showed one difference between the twins regarding motor
skills. Because this was the only distinction between the twins
in the tests that the District could validly administer in
August, the lack of individualization is not surprising. The
District planned more tests as soon as it could effectively
administer them.
[16] We hold that the District provided the children with a
FAPE from August 25 until October 21 and November 4,
2003.
10
Appellants also suggest that it was impermissible that the District
began the August IEP meeting with identical pre-written IEPs. This does
not invalidate the substance or development of the IEPs. 64 Fed. Reg. at
12478-79. Appellants put forth no evidence that the District presented the
IEPs in a “take it or leave it” position, which would have constituted error.
See Ms. S. ex rel. G., v. Vashon Island Sch. Dist., 337 F.3d 1115, 1131
(9th Cir. 2003).
16728 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
C. The October and November IEPs.
Appellants also raise a substantive challenge to the October
and November IEPs. They contend that the District could not
implement the October and November IEPs and that these
IEPs were not reasonably calculated to confer an educational
benefit. Specifically, Appellants argue that the District had no
behavior analyst on staff. A behavior analyst would be quali-
fied to perform functional analysis and supervise the staff in
the implementation of a discrete trial training program. The
District responds that IDEA does not require a district to
employ a behavior analyst. Rather, it requires the District to
employ an individual with Nevada State Education Agency-
recognized certification, licensing, or registration. 34 C.F.R.
§ 300.23.
The Hearing Officer’s detailed findings of fact, adopted by
the State Review Officer and affirmed by the district court,
demonstrate that the District did have personnel capable of
implementing the IEPs. The District had contracted with two
private behavior analysts for support in implementing the dis-
crete trial training program.11 Trained personnel from the Uni-
versity of Nevada would perform functional behavior analysis
at the twins’ home and school.
The District Special Education Teacher had been concerned
about her abilities to implement the IEPs in early October.
After she learned the District would provide her with addi-
tional training, she stated that she felt confident that she could
implement the IEPs. Although the parents preferred that the
11
Appellants also argue that the independent contractor would use the
twins as guinea pigs for training. A District staff member testified that the
behavior analysts would “train our staff members using [JG] and examples
with him, but that since they were not going to be there 15 hours a week
their function was to build capacity amongst our people.” The testimony
suggests that the behavior analysts would deliver some discrete trials to
the twins as examples to help train the teachers. It does not suggest that
they would have an untrained teacher deliver discrete trials.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16729
District hire the Center’s discrete trial training instructor, we
focus on the District’s proposed implementation plan, not the
parents’ preferred alternative. See Gregory K. v. Longview
Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987).
The District must implement an IEP as soon as possible,
but the District has a reasonable amount of time to do so, par-
ticularly where the circumstances require a short delay. 64
Fed. Reg. 12440 & 12579 (March 12, 1999) (implementing
34 C.F.R. § 300.342 and comments). The evidence shows that
the District would have had qualified staff within a reasonable
amount of time, but the parents did not allow the District to
provide services.
[17] We hold that the District had adequate resources to
implement the October and November IEPs.
D. The Rehabilitation Act claim
For the first time in district court, Appellants added a Claim
of discrimination under the Rehabilitation Act. Appellees
argued that this claim was improperly presented because it
was unexhausted. They also argued that the claim should lose
on its merits. The District first made the exhaustion argument
in its reply brief to its summary judgment motion. The Dis-
trict had assumed the Rehabilitation Act claim was a claim for
a denial of a FAPE, not an unexhausted claim that the District
had discriminated against the twins by segregating them.
Appellants argue that the district court erred in granting the
District’s summary judgment motion and denying their cross-
motion for summary judgment.
The grant or denial of summary judgment is a conclusion
of law, reviewed de novo. See Amanda J., 267 F.3d at 887.
IDEA is not an exclusive remedy for children with disabili-
ties who complain of failures in their education. See Mark H.,
513 F.3d at 925 (concluding that the availability of relief
16730 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
under IDEA does not limit the availability of relief under the
Rehabilitation Act). Nevertheless, IDEA requires that when a
plaintiff files an action that seeks relief under another statute,
and that relief is also available under IDEA, he or she must
follow IDEA exhaustion procedures. 20 U.S.C. § 1415(l)
(2000); Robb v. Bethel Sch. Dist. #403, 308 F.3d 1047, 1050
(9th Cir. 2002).
Appellants went through the administrative process but did
not argue that the District discriminated against the twins by
segregating them. Appellants argue that their lack of exhaus-
tion is not fatal to their claim because their segregation claim
could not be heard in an IDEA due process hearing. Neverthe-
less, § 1415(b)(6) allows claims “with respect to any matter
relating to the identification, evaluation, or educational place-
ment of the child, or the provision of a free appropriate public
education” to be heard. 20 U.S.C. § 1415(b)(6) (emphasis
added). Further, the parents in Mark H. presented their Reha-
bilitation Act claim during the administrative process, even
though the hearing officer did not rule on the issue. Appel-
lants also could have argued their discrimination claim in the
hearing. Mark H., 513 F.3d at 927 n.3.12
12
The partial dissent argues that because all of the “educational issues”
were exhausted, we should conclude that Appellants adequately exhausted
their Rehabilitation Act claim. There are two primary problems with the
partial dissent’s analysis: First, in Blanchard v. Morton v. School Disrict,
420 F.3d 918, 920-21 (9th Cir. 2005), we stated that “[t]he dispositive
question . . . is whether Blanchard is seeking remedy for injuries that could
be redressed to any degree by the IDEA’s administrative procedures.” Id.
at 921. As we see it, the ALJ could have ordered the District to place the
twins in regular preschool programing, remedying Appellants’ alleged
injury to some degree. 20 U.S.C. § 1415(k)(3)(B)(ii). Therefore, even
under Blanchard, exhaustion was required. Second, in Witte and Blan-
chard, the parties had resolved “educational issues” to mutual satisfaction,
and none of their injuries could have been redressed by recourse to the
IDEA exhaustion process. We see a different case where the parties are
still litigating their educational issues and the administrative process might
have been used in attempt to gain a remedy for their alleged injury.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16731
Appellants argue that the District has waived its exhaustion
defense. There is some question regarding whether IDEA’s
exhaustion requirement is jurisdictional, or whether a district
could waive this argument. See Coleman v. Newburgh
Enlarged City Sch. Dist., 503 F.3d 198, 204 (2d Cir. 2007)
(discussing recent Supreme Court precedent casting doubt on
this issue). The exhaustion requirement reflects “ ‘the tradi-
tionally strong state and local interest in education.’ ” Christo-
pher S. v. Stanislaus County Office of Educ., 384 F.3d 1205,
1209 (9th Cir. 2004) (quoting Hoeft v. Tucson Unified Sch.
Dist., 967 F.2d 1298, 1303 (9th Cir. 1992)). We need not
address whether exhaustion under IDEA is a non-
jurisdictional claims-processing rule, or a jurisdictional bar.
See Eberhart v. United States, 546 U.S. 12, 16 (2005) (per
curiam). The District did not forfeit the argument. The Dis-
trict raised it as soon as the nature of Appellants’ Rehabilita-
tion Act claim became clear. Once the District learned that the
claim was not arguing that the District had denied Appellants
a FAPE, they moved to amend their answer and asserted the
exhaustion defense. The District’s treatment of this exhaus-
tion issue in our view was timely.13
[18] Appellants did not properly present the claim to the
district court. The District had no notice that Appellants con-
sidered the twins’ placement discriminatory. Therefore, we
vacate the district court’s order granting the District summary
judgment and hold that this claim should have been dismissed
without prejudice for lack of jurisdiction.14
13
Even though the issue was not raised in the opposition brief, under our
precedent we can consider the issue because it was raised explicitly in the
Appellant’s brief. See USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d
1276, 1278 (9th Cir. 1994) (considering an issue that appellant did not
raise in opening brief after appellee throughly discussed it).
14
Finally, Appellants argue that the district court abused its discretion
in denying their motion to strike the District’s reply brief or in the alterna-
tive grant them leave to file a sur-reply. In its reply brief to its motion for
summary judgment, the District argued that the Appellants had not
16732 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
[19] For the foregoing reasons, we REVERSE the district
court’s decision reducing the reimbursement for evaluations,
we AFFIRM the district court’s decision on all other IDEA
claims and on the motion to strike, we VACATE the district
court’s opinion on Appellant’s Rehabilitation Act claims, and
we REMAND WITH INSTRUCTIONS that the district court
DISMISS that claim without prejudice for lack of jurisdiction.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART;
VACATED IN PART AND REMANDED WITH
INSTRUCTIONS.
BEA, Circuit Judge, concurring in part and dissenting in part:
I concur in the court’s disposition of Appellants’ claims
under the IDEA. However, because I do not think the IDEA’s
exhaustion requirements bar the plaintiffs from pursuing their
claims under § 504 of the Rehabilitation Act, I respectfully
dissent from the court’s holding the district court lacked juris-
diction to hear these claims. I would instead affirm the district
court’s order granting summary judgment in favor of the
Appellee.
exhausted the Rehabilitation Act claim and submitted new evidence. We
review a district court’s decision on a motion to strike for abuse of discre-
tion. Golden Gate Hotel Ass’n v. City & County of S.F., 18 F.3d 1482,
1485 (9th Cir. 1994). Where “ ‘new evidence is presented in a reply to a
motion for summary judgment, the district court should not consider the
new evidence without giving the [non-]movant an opportunity to
respond.’ ” Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (quot-
ing Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th Cir. 1990) (alteration
in original). The district court did not consider the new evidence and its
denial of leave to file a sur-reply accordingly did not prejudice Appellants.
We hold that the district court did not abuse its discretion in denying
Appellants’ motion to strike.
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16733
In the district court, the Appellants contended for the first
time that the District’s placement of the twins in the TEDDY
program constituted intentional discrimination under the
Rehabilitation Act. The Appellants contended the District,
rather than making an individualized determination regarding
the twins’ needs, simply labeled the twins “disabled,” and
assigned the twins to special education. This, the Appellants
claimed, constituted “segregation.” The Appellants sought
monetary damages, a form of relief unavailable under the
IDEA. See Witte v. Clark County Sch. Dist., 197 F.3d 1271,
1275 (9th Cir. 1999).
The IDEA requires a plaintiff to exhaust administrative
remedies before filing suit under another statute if the plaintiff
is “seeking relief that is also available under” the IDEA. 20
U.S.C. § 1415(l). Though Appellants seek some relief not
available under IDEA, they were nevertheless required to pur-
sue those remedies that were available to them in state admin-
istrative proceedings; their claims could have been redressed,
to an extent, by remedies available under the IDEA. See Robb
v. Bethel Sch. Dist. No. 403, 308 F.3d 1047, 1050 (9th Cir.
2002).
But here, unlike Robb, Appellants are not attempting to
“opt out” of the IDEA altogether. Id. Appellants have pursued
or are pursuing all those remedies available to them under the
IDEA. And, in the state administrative proceeding, Appellants
contended the District assigned the twins to the TEDDY pro-
gram without undertaking the individualized evaluation
required by law. The plaintiffs in Robb, by contrast, failed to
file any administrative claim whatsoever. See id.In two cases, we permitted a plaintiff who first seeks
administrative relief in state IDEA proceedings to file a sepa-
rate suit for damages under § 1983 or the Rehabilitation Act.
In Witte, the plaintiffs sought monetary damages under
§ 1983, the Rehabilitation Act, and the Americans with Dis-
abilities Act for emotional and physical abuse by school
16734 JG v. DOUGLAS COUNTY SCHOOL DISTRICT
employees. 197 F.3d at 1276. In Blanchard v. Morton School
District, the mother of a disabled child sought money dam-
ages under § 1983 for emotional distress and lost wages
caused by the school district’s “deliberate indifference” to her
son’s IDEA claims. 420 F.3d 918, 919 (9th Cir. 2005). In both
Witte and Blanchard, we held that the plaintiffs were not
required to advance the claim for damages in state IDEA pro-
ceedings, provided the plaintiff had raised all of the “educa-
tional issues” implicated by the child’s disability in the IDEA
proceeding. Id. at 921-22; Witte, 197 F.3d at 1275.
In short, Witte and Blanchard stand for the principle that
once a plaintiff has raised all of the “educational issues” asso-
ciated with an IDEA claim in a state administrative proceed-
ing, nothing prevents him from asserting a claim for damages
in district court alleging a defendant school district also vio-
lated other statutory provisions. Such an approach fulfills the
purposes of exhaustion—providing courts with expert assis-
tance and offering state officials the first opportunity to cor-
rect an educational deficiency, see Robb, 308 F.3d at 1051—
without forcing plaintiffs to engage in the futile gesture of
raising damages claims in state administrative proceedings,
where the agency lacks the power to award such relief.
Here, Appellants have resolved all of the “educational
issues” associated with their claims. Appellants contended in
state administrative proceedings that the District’s evaluation
of the twins was deficient and that the twins’ assignment to
the TEDDY program did not meet the twins’ educational
needs. The only new issue raised by Appellants’ Rehabilita-
tion Act claim is an allegation that the District acted with dis-
criminatory intent. In the IDEA proceedings, the intent with
which a district acts in failing to provide a FAPE is irrelevant;
only the result of its actions or inactions matter. Nor is the
District’s intent an “educational issue” the resolution of which
requires the expert guidance of a state administrator. Cf.
Kutasi v. Las Virgines Unified Sch. Dist., 494 F.3d 1162,
1169 (9th Cir. 2007).
JG v. DOUGLAS COUNTY SCHOOL DISTRICT 16735
I would instead affirm the district court’s order granting
summary judgment in favor of the Appellee. Where a district
assigns a student to special education pursuant to a valid IEP,
the district is not liable for intentional discrimination under
§ 504 of the Rehabilitation Act. Mark H. v. Lemahiu, 513
F.3d 922, 934 (9th Cir. 2008). Because I agree that the Dis-
trict provided the twins valid IEPs, I would affirm the district
court’s decision on the merits, rather than conclude the district
court lacked jurisdiction over Appellants’ Rehabilitation Act
claims.