Anchorage School District v. M.P. , 689 F.3d 1047 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANCHORAGE SCHOOL DISTRICT,  No. 10-36065
Plaintiff-Appellee,
D.C. No.
v.
 3:09-cv-00189-TMB
M.P., a student with a disability
ORDER AND
and M.P., his parent,
OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted
October 11, 2011—Seattle, Washington
Filed July 19, 2012
Before: Alex Kozinski, Chief Judge, Richard A. Paez,
Circuit Judge, and Larry A. Burns, District Judge.*
Opinion by Judge Paez
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
8325
8328 ANCHORAGE SCHOOL DISTRICT v. M.P.
COUNSEL
Bradley D. Owens (argued) and Howard S. Trickey, Jermain
Dunnagan & Owens, P.C., Anchorage, Alaska, for the
plaintiff-appellee.
Nicholas G. Miranda (argued), Morrison & Foerster LLP,
Washington, D.C.; Sonja D. Kerr, Public Interest Law Center
of Philadelphia, Philadelphia, Pennsylvania, for the
defendants-appellants.
Edward Daniel Robinson, Covington & Burling, LLP, San
Francisco, California, for the amicus curiae.
ANCHORAGE SCHOOL DISTRICT v. M.P. 8329
ORDER
The Council of Parent Attorneys and Advocates’ request
for publication is GRANTED. The memorandum disposition
filed on November 1, 2011 is withdrawn and is replaced with
an opinion filed concurrently with this order.
Appellee shall have 14 days from the date of the filing of
this order within which to file a petition for rehearing or
rehearing en banc. Ninth Circuit Rule 40-2.
OPINION
PAEZ, Circuit Judge:
M.P., through his parents, appeals the district court’s ruling
that the Anchorage School District (“ASD”) did not deny
M.P. a free and appropriate public education (“FAPE”)
because the failure to develop an updated Individualized Edu-
cation Program (“IEP”) was mostly attributable to his “par-
ents’ litigious approach.” The Individuals with Disabilities
Education Act (“IDEA”) mandates that public educational
agencies review and revise annually an eligible child’s IEP.
20 U.S.C. § 1414(d)(2)(A), (4)(A); 34 C.F.R. §§ 300.323(a),
300.324(b)(1). Neither the IDEA nor its implementing regula-
tions condition this—or any other—duty expressly imposed
on a state or local educational agency upon parental coopera-
tion or acquiescence in the agency’s preferred course of
action. Penalizing M.P.’s parents—and consequently M.P.—
for exercising the very rights conferred by the IDEA under-
mines the statute’s fundamental purposes.
Although the district court relied on an improper basis
when it declined to consider whether the ASD complied with
the IDEA’s substantive requirements, it is unnecessary to
remand this issue. In light of the fully developed record, we
8330 ANCHORAGE SCHOOL DISTRICT v. M.P.
conclude that the ASD deprived M.P. of a substantively ade-
quate FAPE by relying on an outdated IEP to measure M.P.’s
academic and functional performance and provide educational
benefits to M.P. We further conclude that M.P.’s parents are
entitled to reimbursement for private tutoring expenses
incurred from January 1, 2008 to December 2008, and review
of the propriety of private tutoring expenses incurred from
January 1, 2009 through May 2009. Accordingly, we reverse
in part and remand for further proceedings consistent with this
opinion.
I.
M.P. is eligible for special education and related services
because he has been diagnosed with high-functioning autism,
pervasive development delay, and sensory integration dys-
function. M.P.’s parents have been actively involved in their
son’s education. The record reflects that they vigorously pur-
sued the rights and remedies provided under the IDEA: they
routinely reported their concerns regarding M.P.’s educational
progress to the IEP team; they zealously advocated for
amendments to M.P.’s IEP; they requested that the ASD pro-
vide supplemental services that extend beyond the traditional
educational curriculum provided in the classroom; and they
filed numerous due process complaints that predate this law-
suit. Their actions, however, have contributed to an increas-
ingly strained relationship with the ASD.
This particular dispute arises out of an IEP adopted by the
ASD in 2006 with the consent of M.P.’s parents. The IEP,
which expired by its own terms a year later, established aca-
demic, occupational therapy, speech and language, and behav-
ioral goals for M.P. during his second grade year at the ASD’s
Denali Montessori School (“Denali”). Pursuant to the 2006
IEP, M.P. received educational instruction in a regular class-
room environment with special education support and ser-
vices from a special education teacher, a teacher’s assistant,
ANCHORAGE SCHOOL DISTRICT v. M.P. 8331
an occupational therapist, and a speech and language patholo-
gist.
M.P. completed the second grade curriculum and moved on
to third grade for the 2007-08 academic year. There were
attempts to revise the 2006 IEP, but the parties were unable
to develop an updated IEP prior to its expiration on August
25, 2007. Approximately halfway through M.P.’s third grade
year, the ASD prepared a revised IEP for M.P. M.P.’s parents
did not attend the meeting during which the ASD formulated
the draft IEP, although they were invited. Instead, they pro-
vided written comments and suggestions that they wanted
incorporated into the proposed IEP. They also identified those
portions of the IEP that should remain in “stay put,” see 20
U.S.C. § 1415(j) (providing that during the pendency of judi-
cial or administrative hearings, “the child shall remain in the
then-current educational placement” unless the parents and
the school district agree to an alternative placement), in accor-
dance with a stipulation between M.P.’s parents and the ASD
in the then-pending administrative proceeding, Anchorage
Sch. Dist., DEED 07-20, 50 IDELR 146, 626 (Alaska IHO
Jan. 8, 2008). Pursuant to the parties’ stipulation, the hearing
officer ordered the ASD to maintain M.P.’s writing instruc-
tion placement for the remainder of the 2006-07 school year.
Id. at 626; see also Madeline P. v. Anchorage Sch. Dist., 265
P.3d 308, 313 (Alaska 2011). Relying on the “stay put” order,
M.P.’s parents sought to maintain their son’s then-current
educational placement for writing instruction in the draft Feb-
ruary 2008 IEP. However, after receiving the parents’
response, the ASD unilaterally postponed any further efforts
to develop an updated IEP until after a final decision had been
rendered in the state court appeal of the hearing officer’s split
decision in the administrative proceeding, Anchorage Sch.
Dist., DEED 07-20, 50 IDELR 146, 625 (Alaska IHO Jan. 8,
2008).
For the 2008-09 academic year, M.P.’s parents enrolled
M.P. in Kincaid Elementary School (“Kincaid”), which was
8332 ANCHORAGE SCHOOL DISTRICT v. M.P.
also part of the ASD. M.P.’s parents declined to meet with
staff from Denali and Kincaid to discuss M.P.’s transition to
the new school. At Kincaid, M.P. repeated the third grade at
the request of his parents and with the consent of Kincaid’s
principal. Due to the continuing impasse over the February
2008 draft IEP, the Kincaid staff relied on the 2006 IEP but
provided M.P. with third grade lessons and materials.
This lawsuit springs from an administrative due process
complaint filed by M.P.’s parents in September 2008 regard-
ing whether M.P. received educational benefits under the
2006 IEP for the 2008 calendar year. After an eight-day hear-
ing involving twelve witnesses, the hearing officer concluded
that the ASD failed to provide M.P. with a FAPE because he
had regressed in two core subject areas—math and reading—
and in several of his behavioral goals. The hearing officer
therefore awarded full reimbursement for the math and read-
ing tutoring expenses M.P.’s parents incurred from January 1,
2008 to December 2008. She also authorized M.P.’s parents
to submit their bills from January 1, 2009 through May 2009
for review by the IEP team and the ASD to determine whether
that tutoring assisted M.P. in progressing toward his 2006 IEP
goals. She further ordered the IEP team to convene a meeting
within twenty days to review M.P.’s goals and objectives and
directed that M.P. be tested to determine his ability level in
various academic subjects. Finally, the hearing officer ordered
the parties to participate in mediation to resolve their commu-
nication problems.
In September 2009, the ASD sought judicial review of the
hearing officer’s decision by filing this lawsuit. Both parties
filed cross-motions for summary judgment. The district court
granted the ASD’s summary judgment motion in part and
reversed the hearing officer’s decision because it concluded
that the ASD did not deny M.P. a FAPE. The district court
concluded that, although the 2006 IEP was obsolete and out-
dated, the failure to develop an updated IEP was mostly
attributable to M.P.’s parents’ litigious approach. It also deter-
ANCHORAGE SCHOOL DISTRICT v. M.P. 8333
mined that M.P.’s parents were not entitled to reimbursement
for the tutoring expenses they incurred on M.P.’s behalf. The
court, however, affirmed the hearing officer’s decision that
the IEP team convene an IEP meeting, that M.P. be tested,
and that the parties engage in mediation. The district court
further determined that neither party was entitled to an award
of attorney’s fees or costs.
II.
Under the IDEA, federal courts accord considerably less
deference to state administrative proceedings than they do in
most instances of “judicial review of . . . agency actions, in
which courts generally are confined to the administrative
record and are held to a highly deferential standard of
review.” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist.
Office of Administrative Hearings, 652 F.3d 999, 1005 (9th
Cir. 2011) (internal quotation marks omitted). The statute
empowers the reviewing court to hear evidence that goes
beyond the scope of the administrative record and, based on
a preponderance of the evidence, “grant such relief as the
court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C).
“Complete de novo review, however, is inappropriate.”
Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267
F.3d 877, 887 (9th Cir. 2001). Administrative proceedings are
accorded “due weight” and the reviewing court must, at least,
“consider the findings carefully[.]” R.B. ex rel. F.B. v. Napa
Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007)
(internal quotation marks omitted). An administrative hearing
officer’s “thorough and careful” findings receive particular
deference. Id.We review a district court’s factual findings for clear error,
even when they are based on the administrative record. J.G.
v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir.
2008). Questions of law are reviewed de novo, as are mixed
questions of law and fact unless the mixed question is primar-
8334 ANCHORAGE SCHOOL DISTRICT v. M.P.
ily factual. N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d
1202, 1207 (9th Cir. 2008).
We review a district court’s equitable determination as to
reimbursement of expenses for abuse of discretion. C.B. ex
rel. Baquerizo v. Garden Grove Unified Sch. Dist., 635 F.3d
1155, 1159 n.1 (9th Cir. 2011). We also review for abuse of
discretion a district court’s denial of a request for attorney’s
fees. P.N. v. Seattle Sch. Dist., No. 1, 474 F.3d 1165, 1168
(9th Cir. 2007).
III.
A.
In enacting the IDEA, Congress sought “to ensure that all
children with disabilities have available to them a free appro-
priate public education that emphasizes special education and
related services designed to meet their unique needs and pre-
pare them for further education, employment, and indepen-
dent living[.]” 20 U.S.C. § 1400(d)(1)(A). The statute was
intended to address the inadequate educational services
offered to children with disabilities and to combat the exclu-
sion of such children from the public school system. Id.§ 1400(c)(2)(A)-(B). To accomplish these objectives, the fed-
eral government provides funding to participating state and
local educational agencies, which is contingent on the agen-
cy’s compliance with the IDEA’s procedural and substantive
requirements.
Parents and children with disabilities are accorded substan-
tial procedural safeguards to ensure that the purposes of the
IDEA are fully realized. See, e.g., Bd. of Educ. v. Rowley, 458
U.S. 176, 205-06 (1982). Among other protections, parents
are entitled to examine their child’s records and participate in
meetings concerning their child’s education, 20 U.S.C.
§ 1415(b)(1); receive written notice prior to any proposed
change in the educational placement of their child, id.ANCHORAGE SCHOOL DISTRICT v. M.P. 8335
§ 1415(b)(3); and file an administrative due process complaint
“with respect to any matter relating to the identification, eval-
uation, or educational placement of [their] child, or the provi-
sion of a free appropriate public education to such child[,]” id.
§ 1415(b)(6). When parents or the school district pursue an
administrative complaint, they are entitled to “an impartial
due process hearing” conducted by the state or local educa-
tional agency. Id. § 1415(f)(1)(A). Either party may seek judi-
cial review in state or federal court. Id. § 1415(i)(2)(A). The
“stay put” provision of the IDEA enables parents to maintain
their child’s then-current educational placement during the
pendency of any administrative or judicial proceedings, unless
the educational agency and the parents agree on an alternative
placement. Id. § 1415(j); 34 C.F.R. § 300.518(a).
[1] State and local educational agencies must also satisfy
the IDEA’s substantive requirements by providing all eligible
students with a free appropriate public education, or FAPE,
which is defined as:
special education and related services that — (A)
have been provided at public expense, under public
supervision and direction, and without charge; (B)
meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary
school, or secondary school education in the State
involved; and (D) are provided in conformity with
the individualized education program required under
[20 U.S.C. § 1414(d)].
20 U.S.C. § 1401(9). The components of a FAPE are recorded
in an IEP, which, among other things, identifies the child’s
“present levels of academic achievement and functional per-
formance,” establishes measurable annual goals, addresses the
services and accommodations to be provided to the child and
whether the child will attend mainstream classes, and speci-
fies the measurement tools and periodic reports that will be
used to evaluate the child’s progress. Id. § 1414(d)(1)(A); 34
8336 ANCHORAGE SCHOOL DISTRICT v. M.P.
C.F.R. § 300.320. The team that develops an IEP must consist
of, at a minimum, the parents, at least one of the child’s regu-
lar education teachers, at least one special education teacher,
and a qualified representative of the local educational agency.
20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321(a). The IEP
team must review and, as appropriate, revise the IEP on an
annual basis. 20 U.S.C. § 1414(d)(2)(A), (4)(A); 34 C.F.R.
§§ 300.323(a), 300.324(b)(1).
We conduct a two-step inquiry to determine whether a
child has received a FAPE. First, we consider whether “the
State complied with the procedures set forth in the [IDEA.]”
Rowley, 458 U.S. at 206. Second, we evaluate whether the
IEP is “reasonably calculated to enable the child to receive
educational benefits[.]” Id. at 206-07. It is unnecessary to
address the second prong if we identify “procedural inadequa-
cies that result in the loss of educational opportunity, or seri-
ously infringe the parents’ opportunity to participate in the
IEP formulation process, or that caused a deprivation of edu-
cational benefits[.]” Amanda J., 267 F.3d at 892 (internal quo-
tation marks and citations omitted).
B.
M.P.’s parents contend that the district court erred by
declining to consider whether M.P. received a FAPE because
his parents were equally or more at fault for the absence of an
updated IEP. We agree that the district court improperly
shifted the burden for substantive compliance with the IDEA
from the ASD to M.P.’s parents.
[2] The ASD has an affirmative duty to review and to
revise, at least annually, an eligible child’s IEP. See, e.g., 20
U.S.C. § 1414(d)(2)(A), (4)(A); 34 C.F.R. §§ 300.323(a),
300.324(b)(1). Nothing in the statute makes that duty contin-
gent on parental cooperation with, or acquiescence in, the
state or local educational agency’s preferred course of action.1
1
For example, even when an educational agency “is unable to convince
the parents that they should attend” an IEP team meeting, 34 C.F.R.
ANCHORAGE SCHOOL DISTRICT v. M.P. 8337
To the contrary, the IDEA, its implementing regulations, and
our case law all emphasize the importance of parental
involvement and advocacy, even when the parents’ prefer-
ences do not align with those of the educational agency. The
statute is particularly protective of parents’ right to participate
in the formulation of their child’s IEP because “[p]arents 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.” Amanda J., 267 F.3d at
882. When parents are dissatisfied with any aspect of the edu-
cational services provided to their child, the IDEA authorizes
them to pursue an administrative—and then, if necessary, a
civil—remedy. 20 U.S.C. § 1415(b)(6), (f)(1)(a), (i)(2)(A).
During the pendency of administrative and civil proceedings,
the statute permits parents to ensure that their child’s educa-
tional placement is not disrupted without their consent by
invoking the statute’s “stay put” provision. Id. § 1415(j); 34
C.F.R. § 300.518(a).
[3] We have previously held that participating educational
agencies cannot excuse their failure to satisfy the IDEA’s pro-
cedural requirements by blaming the parents. In W.G. v.
Board of Trustees of Target Range School Dist. No. 23, the
school district committed a procedural violation by failing to
ensure parental participation in the development of their
child’s IEP. 960 F.2d 1479, 1485 (9th Cir. 1992), superseded
on other grounds by 20 U.S.C. § 1414(d)(1)(B). The school
district argued that the parents were at fault because “they left
the IEP meeting, did not file a dissenting report,” and did not
§ 300.322(d), the implementing regulations do not permit the state or local
educational agency to cancel the meeting. Rather, the agency must docu-
ment its efforts to communicate with the parents and then the meeting may
be conducted in the parents’ absence, but only if the parents affirmatively
refuse to attend. Id.; see, e.g., Shapiro ex rel. Shapiro v. Paradise Valley
Unified Sch. Dist. No. 69, 317 F.3d 1072, 1078 (9th Cir. 2003), super-
seded on other grounds by 20 U.S.C. § 1414(d)(1)(B).
8338 ANCHORAGE SCHOOL DISTRICT v. M.P.
adequately communicate their concerns to the school district.
Id. We rejected the school district’s rationale, concluding that
it had an affirmative duty to conduct a “meaningful meeting
with the appropriate parties[,]” and that it failed to do so when
it did not ensure parental participation in the development of
the IEP. Id.[4] We likewise held that a school district did not fulfill its
statutory obligation to evaluate a child with disabilities when
it merely referred the child’s parents to a center for an evalua-
tion. See N.B., 541 F.3d at 1209. We concluded that a referral
“does not ‘ensure the child is assessed,’ as required by 20
U.S.C. § 1414(b)(3)(C).” Id. These cases demonstrate that an
educational agency “cannot abdicate its affirmative duties
under the IDEA.” Id.[5] Here, it is beyond dispute that M.P.’s parents were
zealous advocates for their son. Due to their ongoing concerns
about the adequacy of the educational opportunities and ser-
vices provided by the ASD, M.P.’s parents filed four adminis-
trative complaints in August and September 2008 and
obtained a “stay put” order in connection with a then-pending
administrative proceeding. Having reviewed the record, we
are aware that this zealousness probably contributed to their
strained relationship with the ASD. Yet it would be antitheti-
cal to the IDEA’s purposes to penalize parents—and conse-
quently children with disabilities—for exercising the very
rights afforded to them under the IDEA. See 20 U.S.C.
§ 1400(d)(1)(B) (explaining that one of the IDEA’s purposes
is “to ensure that the rights of children with disabilities and
parents of such children are protected”).
[6] Therefore, when the ASD received M.P.’s parents’
extensive revisions to the ASD’s February 2008 draft IEP, the
ASD had two options: (1) continue working with M.P.’s par-
ents in order to develop a mutually acceptable IEP, or (2) uni-
laterally revise the IEP and then file an administrative
complaint to obtain approval of the proposed IEP. See 20
ANCHORAGE SCHOOL DISTRICT v. M.P. 8339
U.S.C. § 1415(b)(6); 34 C.F.R. § 300.507(a) (“A parent or a
public agency may file a due process complaint . . . .”); see
also A.M. ex rel. Marshall v. Monrovia Unified Sch. Dist.,
627 F.3d 773, 778 (9th Cir. 2010) (noting that the parents and
the school district both requested a due process hearing). But
the ASD could not simply ignore its affirmative duty under
the IDEA by postponing its obligation to revise the outdated
IEP. Cf. N.B., 541 F.3d at 1209. Endorsing such an outcome
would force M.P.’s parents to make a Hobson’s choice:
accept the ASD’s proposed IEP despite its deficiencies or
forego even modest improvements to M.P.’s educational pro-
gram. Accordingly, we conclude that the ASD’s “take it or
leave it” approach contravened the purposes of the IDEA,
which was enacted to ensure that all children with disabilities
receive a FAPE, and that the rights of eligible children and
their parents are protected. 20 U.S.C. §§ 1400(d)(1)(A)-(B).
[7] We acknowledge that the ASD’s ability to revise the
IEP was necessarily constrained by the “stay put” order,
which required that the ASD maintain M.P.’s writing educa-
tional placement for the duration of the 2006-07 academic
year. But the mere existence of the “stay put” order did not
excuse the ASD from its responsibility to have a statutorily
compliant IEP in place at the beginning of each school year.
20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a). Indeed, to
conclude otherwise would vitiate the purpose of the “stay put”
provision, which was designed to “strip schools of the ‘unilat-
eral authority they had traditionally employed to exclude dis-
abled students . . . from school’ and to protect children from
any retaliatory action by the agency.” Johnson ex rel. Johnson
v. Special Educ. Hearing Office, 287 F.3d 1176, 1181 (9th
Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 323 (1988)).
[8] The “stay put” order meant only that the ASD could
not change M.P.’s “educational placement,” which we have
held “means the general educational program of the student.”
N.D. ex rel. Parents Acting as Guardians Ad Litem v. Haw.
Dep’t of Educ., 600 F.3d 1104, 1116 (9th Cir. 2010). We have
8340 ANCHORAGE SCHOOL DISTRICT v. M.P.
explained that “a change in educational placement relates to
whether the student is moved from one type of program—i.e.,
regular class—to another type—i.e., home instruction.” Id. Or
it may also occur “when there is a significant change in the
student’s program even if the student remains in the same set-
ting.” Id. For purposes of our discussion, it is not necessary
to further define this term. We emphasize only that the ASD
can satisfy its statutory obligations to review and revise
M.P.’s IEP without effecting a change in his educational
placement for writing instruction. Thus, we hold that updating
an eligible student’s present level of academic achievement
and functional performance and establishing corresponding
goals and objectives does not qualify as a change to a stu-
dent’s educational placement, so long as such revisions do not
involve changes to the academic setting in which instruction
is provided or constitute significant changes in the student’s
educational program.
This outcome is consistent with the manner in which Con-
gress addressed the concern of overly demanding parents. See
20 U.S.C. § 1412(a)(10)(C)(iii)(III) (providing that a court
may reduce or deny reimbursement for private school place-
ment costs “upon a judicial finding of unreasonableness with
respect to actions taken by the parents”); id.§ 1415(i)(3)(B)(i)(II) (providing for an award of attorney’s
fees to a prevailing educational agency when the parent’s
attorney files or continues to litigate a frivolous, unreason-
able, or baseless cause of action); id. § 1415(i)(3)(B)(i)(III)
(permitting an award of attorney’s fees to a prevailing educa-
tional agency and against either the parent or the parent’s
attorney when “the parent’s complaint or subsequent cause of
action was presented for any improper purpose, such as to
harass, to cause unnecessary delay, or to needlessly increase
the cost of litigation”); id. § 1415(i)(3)(F) (authorizing a court
to reduce an award of attorney’s fees in matters in which the
parent or the parent’s attorney “unreasonably protracted the
final resolution of the controversy”). Each of these authorized
sanctions penalizes the parents or their attorney—not their
ANCHORAGE SCHOOL DISTRICT v. M.P. 8341
children. These safeguards provide a sufficient deterrent to
unreasonably demanding or litigious parents.
C.
M.P.’s parents also argue that M.P. did not receive a FAPE
during the 2008 calendar year. Although the district court did
not reach the issue of substantive compliance, we conclude
that justice would not be served by further delaying the reso-
lution of this issue. In light of the fully developed record on
appeal, we hold that the ASD denied M.P. a FAPE.
[9] To provide a FAPE, the educational agency must
ensure that the child’s IEP is “reasonably calculated to enable
the child to receive educational benefits[.]” Rowley, 458 U.S.
at 207. The Supreme Court has interpreted this standard to
mean that “states must provide a ‘basic floor of opportunity’
to disabled students, not a ‘potential-maximizing education.’ ”
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947 (9th Cir.
2010) (quoting Rowley, 458 U.S. at 197 n.21, 200). A state or
local educational agency satisfies the “educational benefit”
standard “by providing personalized instruction with suffi-
cient support services to permit the child to benefit education-
ally from that instruction.”2 Rowley, 458 U.S. at 203. When
a child with disabilities remains in a regular classroom with
his or her peers, an IEP “should be reasonably calculated to
enable the child to achieve passing marks and advance from
grade to grade.” Id. at 204. We are mindful that we must not
critique an IEP with the benefit of hindsight—instead, we
evaluate whether the goals and methods were reasonably cal-
culated to ensure that the child would receive educational
2
In J.L., we recognized that there is confusion as to whether children
with disabilities are entitled to an IEP that provides “educational benefit,”
“some educational benefit” or a “meaningful educational benefit.” 592
F.3d at 951 n.10. We concluded that all three iterations refer to the same
standard because “[s]chool districts must, to ‘make such access meaning-
ful,’ confer at least ‘some educational benefit’ on disabled students.” Id.(quoting Rowley, 458 U.S. at 192, 200).
8342 ANCHORAGE SCHOOL DISTRICT v. M.P.
benefits at the time of implementation. Adams v. Oregon, 195
F.3d 1141, 1149 (9th Cir. 1999).
[10] M.P.’s third grade teachers and special education staff
at both Denali and Kincaid relied on an IEP that was devel-
oped and implemented in 2006 for M.P.’s second grade
school year. We agree with the district court and the hearing
officer that the 2006 IEP was outdated and obsolete, and that
it either lacked benchmarks or the benchmarks were outdated.
Consequently, an exhaustive recitation of the hearing officer’s
factual findings is unnecessary. We conclude that an IEP
developed for a second grader is not reasonably calculated to
ensure educational benefits to that student in his third grade
year. Even if M.P.’s teachers and aides attempted to overlay
third grade expectations onto the 2006 IEP’s goals and objec-
tives, it is unclear whether their efforts were appropriate or
adequate because the 2006 IEP did not provide an accurate
assessment of M.P.’s present level of performance during his
third grade year. We are simply not persuaded that an IEP
designed to address second grade educational standards and
objectives was reasonably calculated to enable M.P. to
achieve passing marks in his third grade year and then
advance to fourth grade. Accordingly, we agree with the hear-
ing officer’s factual findings and conclude that the ASD
deprived M.P. of a FAPE because the outdated IEP does not
satisfy the Rowley “educational benefit” standard.3
D.
M.P.’s parents also challenge the district court’s denial of
their request for reimbursement for the private tutoring
expenses they incurred on M.P.’s behalf from January 1, 2008
to May 2009. The district court foreclosed any possibility of
granting such relief, holding that the ASD did not deny M.P.
a FAPE and, even if it had, his parents were not entitled to
3
Because the ASD denied M.P. a substantively adequate FAPE, we do
not address M.P.’s procedural claims.
ANCHORAGE SCHOOL DISTRICT v. M.P. 8343
reimbursement. The district court abused its discretion by
summarily concluding that M.P.’s parents were not entitled to
reimbursement even if the ASD denied M.P. a FAPE. See
C.B., 635 F.3d at 1159 n.1 (explaining that we review an equi-
table determination of reimbursement for abuse of discretion).
[11] The IDEA permits a district court to “grant such relief
as the court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(C)(iii). We have held that “[p]arents have an
equitable right to reimbursement for the cost of providing an
appropriate education when a school district has failed to
offer a child a FAPE.” W.G., 960 F.2d at 1485. Even if a par-
ent prevails on an IDEA claim, however, reimbursement is
not automatic and the Supreme Court has repeatedly cau-
tioned that “parents who unilaterally change their child’s
placement during the pendency of review proceedings, with-
out the consent of state or local school officials, do so at their
own financial risk.” Sch. Comm. of Burlington v. Dep’t of
Educ. of Mass., 471 U.S. 359, 373-74 (1985). The Court has
further explained that reimbursement for such expenses is
appropriate only if (1) the school district’s placement violated
the IDEA, and (2) the alternative placement was proper under
the statute. Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S.
7, 15 (1993). “If both criteria are satisfied, the district court
then must exercise its ‘broad discretion’ and weigh ‘equitable
considerations’ to determine whether and how much, reim-
bursement is appropriate.” C.B., 635 F.3d at 1159 (quoting
Carter, 510 U.S. at 15-16). In making this determination, the
district court may consider all relevant equitable factors,
including, inter alia, notice to the school district before initi-
ating the alternative placement; the existence of other, more
suitable placements; the parents’ efforts in securing the alter-
native placement; and the level of cooperation by the school
district. Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078,
1088-89 (9th Cir. 2008). These factors make clear that “[t]he
conduct of both parties must be reviewed to determine
whether relief is appropriate.” W.G., 960 F.2d at 1486(emphasis added).
8344 ANCHORAGE SCHOOL DISTRICT v. M.P.
For the reasons explained above, M.P.’s parents satisfied
the first criterion because the ASD denied M.P. a FAPE by
relying on the outdated 2006 IEP. Furthermore, M.P.’s par-
ents met the second criterion—the private tutoring services
were proper under the IDEA—but only from January 1, 2008
to December 2008. The record does not shed much light on
the scope and substance of M.P.’s private tutoring services,
but the evidence supports a finding that M.P. achieved mea-
surable progress as a result of private tutoring, at least with
respect to math. Moreover, it does not appear that the ASD
challenged the suitability of such services during the adminis-
trative proceedings. The hearing officer’s findings were both
thorough and careful, and we defer to her determination that
M.P.’s 2006 IEP, as implemented during his third grade year
at Denali and Kincaid, did not enable him to attain the statu-
torily required educational benefits in math and reading to
which he was entitled. We therefore affirm the hearing offi-
cer’s sound determination that M.P. was entitled to the private
tutoring services he received in these core academic areas
from January 1, 2008 to December 2008.
[12] Turning to the equitable considerations in this case,
we conclude that the hearing officer’s decision and the record
support an award of full reimbursement for M.P.’s private
tutoring expenses. The district court identified three relevant
factors: lack of notice to the school district; whether the
school district was asked to provide services to the student
and given a reasonable opportunity to complete the process of
evaluation and make a placement recommendation; and the
school district’s level of cooperation. Because the district
court did not analyze these factors, we are unable to deter-
mine the weight it accorded to each one. Yet the second and
third factors strongly militate against the district court’s con-
clusion. The ASD failed to timely update M.P.’s 2006 IEP.
When M.P.’s parents responded to the draft IEP proposed by
the ASD in February 2008, the school district unilaterally ter-
minated all efforts to revise the outdated and obsolete IEP for
M.P.’s third grade year. Therefore, the ASD’s refusal to coop-
ANCHORAGE SCHOOL DISTRICT v. M.P. 8345
erate in updating the IEP necessarily contributed to the par-
ents’ need to secure private tutoring services for their son. As
we have previously stated, we are sympathetic to the difficul-
ties posed by the obviously strained relationship between the
ASD and M.P.’s parents, but this circumstance does not
excuse the ASD from compliance with the IDEA. To con-
clude otherwise would subvert the purposes of the IDEA and
sanction a school district’s unilateral decision to abandon its
statutorily required responsibility to the detriment of its stu-
dents.
We conclude that the hearing officer properly determined
that M.P.’s parents are entitled to full reimbursement for
M.P.’s private tutoring services in math and reading for the
2008 calendar year. We likewise defer to the hearing officer’s
determination that M.P.’s parents are entitled to submit for
review by the IEP team and the ASD the expenses incurred
from January 1, 2009 through May 2009 so that his parents
may be reimbursed for those tutoring services that were
appropriate under the IDEA.
E.
Finally, M.P.’s parents argue that the district court erred by
rejecting their request for an award of attorney’s fees.
Although the district court concluded that M.P. was not
denied a FAPE, his parents contend that they nonetheless pre-
vailed in the administrative proceedings and obtained some
affirmative relief from the district court. While we were con-
sidering a request for publication of our memorandum dispo-
sition, however, the parties reached a global settlement
resolving the issue of attorney’s fees in all related matters,
including this case. Thus, it appears that this issue is moot. If
we are mistaken, the district court may revisit the issue of
attorney’s fees upon remand.
REVERSED IN PART AND REMANDED.