A. W. v. Tehachapi Unified Sch. Dist. ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 25 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
A. W., by and through his parent and No. 19-15680
guardian ad litem, Amy Wright,
D.C. No. 1:17-cv-00854-DAD-JLT
Plaintiff-Appellant,
v. MEMORANDUM*
TEHACHAPI UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted June 3, 2020**
Pasadena, California
Before: W. FLETCHER and LEE, Circuit Judges, and AMON,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
A.W.’s parents claim that the Tehachapi Unified School District (TUSD) (1)
failed to provide A.W. with a free appropriate public education (FAPE) as required
by the Individuals with Disabilities Education Act (IDEA) and (2) failed to file a
necessary due process complaint. The ALJ and district court rejected the claims.1
We affirm.
At the time relevant to this appeal, A.W. was a nine-year-old boy who had
been diagnosed with high-functioning autism spectrum disorder and ADHD. In
early 2014, A.W. moved to the TUSD, “at which time he sought special education
and related services.” A.W. presented with behavioral issues, specifically
“banging objects together and knocking items off of shelves”; “aggression, defined
as kicking, hitting, and biting”; and “eloping, defined as leaving the classroom or
school boundaries without permission.”
A.W.’s parents requested “ABA/BCBA services” and claim that the District
has not provided them. ABA is Applied Behavior Analysis, and A.W.’s parents
requested that his one-to-one aide be trained in the mode of analysis. A BCBA is a
1
On appeal, A.W.’s parents raise several other issues, which were not
included in their underlying due process complaint. Because, subject to two
exceptions that do not apply here, only those claims that were raised in the
complaint may be considered, we do not address any additional arguments. See
M.C. ex rel. M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189,
1195–96 (9th Cir. 2017).
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Board-Certified Behavior Analyst, and A.W.’s parents requested that such an
analyst supervise the one-to-one ABA-trained aide for two hours each week. It is
undisputed that A.W. was provided with an aide with ABA training. It is also
undisputed that the ABA-trained aide was not supervised for two hours a week by
a BCBA after the March IEP meeting.
We are presented with two questions: (1) whether BCBA supervision of the
student’s one-to-one aide was necessary to provide A.W. with a FAPE under the
IDEA, and (2) whether TUSD should have initiated a due process hearing to
resolve any disagreement with A.W.’s parents about his IEP. The ALJ determined
that plaintiff failed to carry the burden on either claim, and the district court
agreed. We affirm.
Plaintiff argues that the TUSD denied A.W. a FAPE by refusing
ABA/BCBA services. Because the burden of persuasion when challenging an IEP
falls upon the challenger, Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62
(2005), plaintiff must prove by a preponderance of the evidence, Forest Grove Sch.
Dist. v. T.A., 523 F.3d 1078, 1084 (9th Cir. 2008), that A.W.’s IEP was not
“reasonably calculated to enable [him] to make progress appropriate in light of his
circumstances,” Endrew F. ex rel Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.
Ct. 988, 1002 (2017). In determining that the TUSD had provided A.W. with a
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FAPE, the district court did not commit legal error in finding that plaintiff had not
met his burden because “[t]he sole evidence cited by plaintiff as to why A.W.
required a one-to-one aide with BCBA supervision is that A.W.’s disruptive
behavior had not been eliminated,” as testified to by A.W.’s mother.
Plaintiff also argues that under Cal. Educ. Code § 56346(f) (2011) the TUSD
was required either to get the parents’ agreement or to provide a due process
hearing in order to deny the requested ABA/BCBA services. Under Cal. Educ.
Code § 56346(f) and I.R. ex rel. E.N. v. L.A. Unified Sch. Dist., 805 F.3d 1164,
1168–69 (9th Cir. 2015), a school district need provide a due process hearing only
if it “determines that the proposed special education program component to which
the parent does not consent is necessary to provide a free appropriate public
education to the child.” The ALJ concluded that the school district appropriately
determined that BCBA supervision requested by A.W.’s parents was not necessary
to A.W.’s FAPE, and the district court properly concluded that substantial evidence
supported the ALJ’s conclusion.
AFFIRMED.
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