Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 1 of 32
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 1:12-cv-00426-CWD
MEMORANDUM DECISION AND
D.A. and J.A., on behalf of themselves
and as legal guardians and parents of
M.A., an individual with a disability,
MERIDIAN JOINT SCHOOL
DISTRICT NO. 2,
This is an administrative appeal under the Individuals with Disabilities Education
Act (“IDEA”). 20 U.S.C. § 1400 et seq. Plaintiffs D.A. and J.A., the parents of M.A. (a
high school student diagnosed with high-functioning autism), seek review of Hearing
Officer (“HO”) Edwin Litteneker’s decision entered in July of 2012. HO Litteneker
upheld the determination by Defendant, the Meridian Joint School District No. 2
(“MSD”), that M.A. was not eligible for special education services and, on this basis,
concluded M.A. was not denied Free and Appropriate Public Education under the IDEA.
MEMORANDUM DECISION AND ORDER - 1
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 2 of 32
This case is one of a trilogy of cases concerning M.A.’s educational needs. D.A.
and J.A. ex rel. M.A. v. Meridian Joint Sch. Dist. No. 2 and Indep. Sch. Dist. of Boise City
involved claims by M.A.’s Parents under Section 504 of the Rehabilitation Act as well as
the Americans with Disabilities Act. D. Idaho Case No. 1:11-cv-00119-CWD (hereinafter
“D.A.-119”). In that case, after a nine-day trial, a jury determined M.A. was not denied a
Free and Appropriate Public Education (“FAPE”) within the meaning of the
Rehabilitation Act or the ADA. D.A.-119, Dkt. 127 (D. Idaho July 26, 2013) (Special
Verdict). Meridian Joint Sch. Dist. No.2 v. D.A. and J.A. ex rel. M.A., an appeal from the
decision of HO Guy Price under the IDEA, presented the issue of whether M.A. was
entitled to an Independent Education Evaluation (“IEE”) at public expense after MSD
denied M.A.’s Parents’ request for such an evaluation. D. Idaho Case No. 1:11-cv-00320-
CWD (hereinafter “D.A.-320”). There, the Court affirmed HO Price’s conclusion that
M.A. was entitled to an IEE at public expense.
The issue in this administrative appeal is whether, based on the IEE and other
evaluations, M.A. is eligible for special education services from MSD. In particular, the
Court must determine whether MSD’s ineligibility determination met the IDEA’s
procedural and substantive requirements. On the procedural side, the primary issue is
whether MSD infringed on Parents’ right to meaningfully participate in the eligibility
evaluation. The substantive issues boil down to whether a preponderance of the evidence
demonstrates M.A. does not qualify for special education under the IDEA and the 2009
Revision of Idaho’s Special Education Manual (“Idaho Manual”). For reasons explained
more fully below, the Court will affirm HO Litteneker.
MEMORANDUM DECISION AND ORDER - 2
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 3 of 32
In 2004, M.A.’s Parents moved from California to Idaho and enrolled M.A. at
MSD. M.A. had received special education under the IDEA in California and his Parents
provided MSD with information related to M.A.’s previous diagnoses of expressive-
receptive language disorder, central auditory processing disorder, possibility of dyslexia
and dysgraphia, and possibility of Asperger’s disorder. M.A. received special education
under the IDEA while enrolled in MSD from the fifth grade (2004-2005 school year)
through the eighth grade (2007-2008 school year).
In April 2008, following M.A.’s three-year reevaluation by MSD pursuant to the
IDEA, M.A.’s Individualized Educational Program (“IEP”) team met and determined that
M.A. was no longer eligible to receive special education services. In response, M.A.’s
Parents, at their own expense, obtained an evaluation by Dr. Timothy Leavell, who
diagnosed M.A. with Asperger’s Disorder. M.A.’s Parents provided Dr. Leavell’s report
to MSD and requested that MSD conduct an evaluation of M.A. to reassess his eligibility
for special education. MSD concluded that, rather than an IEP under the IDEA, M.A.
would receive various accommodations at the start of his ninth grade year (Fall 2008)
under Section 504 of the Rehabilitation Act.
In April 2009, M.A. was arrested and placed in the Ada County Juvenile Detention
Center, where he remained incarcerated until September 2010 pursuant to a criminal
sentence. During his incarceration, the Boise Independent School District No. 1 (“BSD”),
the district in which the detention facility is located, assumed responsibility for educating
M.A.. Following negotiations with M.A.’s Parents, BSD issued an eligibility report dated
MEMORANDUM DECISION AND ORDER - 3
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 4 of 32
February 2010, which found M.A. had strong indications of Asperger’s disorder (high-
functioning autism). However, the report concluded M.A. was not eligible for special
education services, because there was no evidence that M.A.’s disabilities adversely
affected his educational performance. The report also noted that BSD conducted its
evaluation in a setting (the detention facility) where students were able to work at their
own pace with individualized support under a flexible curriculum.
In late September 2010, seven days after his release from the detention facility,
M.A. returned to Centennial High School in MSD as an eleventh grade student. Prior to
his return, M.A.’s mother requested MSD conduct a comprehensive IEP evaluation. MSD
denied this request because BSD had already determined M.A.’s disability did not affect
his educational performance and because there was no indication that a reevaluation was
necessary. M.A.’s Parents disagreed with this assessment and, in January 2011, formally
requested MSD provide an IEE at public expense. In making this request, M.A.’s Parents
contended the BSD evaluation was conducted in a highly structured environment and was
not adequately reflective of M.A.’s needs at Centennial High School. MSD denied the
request and filed for a due process hearing, seeking confirmation from a hearing officer
that the evaluation conducted by BSD, and adopted by MSD, was appropriate and that
M.A. did not qualify for special education services.
The assigned HO, Guy Price, presided over a three-week due process hearing and
entered a Memorandum Decision and Order dated June 6, 2011. HO Price determined
MSD inappropriately relied on the BSD evaluation because the detention center and
Centennial High School presented dissimilar educational settings. But HO Price did not
MEMORANDUM DECISION AND ORDER - 4
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 5 of 32
reach the second issue raised by MSD: whether M.A. qualifies for special education
under eligibility criteria set forth in the IDEA and the Idaho Special Education Manual.
HO Price concluded a determination on the second issue was premature until MSD
completed an appropriate evaluation with the benefit of the IEE. MSD appealed HO
Price’s decision in July 2011. In March 2013, the Court affirmed HO Price’s decision,
concluding that M.A. was entitled to an IEE at public expense. D.A.-320, Dkt. 63 (D.
Idaho March 20, 2013). Final judgment in D.A.-320 was entered on November 25, 2013.
Id. Dkt. 112.1
While D.A.-320 proceeded before the Court, Parent’s obtained—at their
expense—an IEE from Dr. Barbara Webb in August 2011.2 Dr. Webb reviewed M.A.’s
educational records and based her evaluation on assessments by several other
professionals, including an occupational therapist, a speech-language pathologist, a
neuropsychologist, and a behavioral specialist. On September 13, 2011, M.A.’s Parents
delivered to MSD an Amended IEE that incorporated the evaluations noted above as well
as comments from teachers and professionals employed by BSD and MSD. The next day,
M.A.’s Parents formally requested an eligibility meeting.
After two follow-up meetings, MSD provided Parents with a referral for a special
education evaluation, the plan for that evaluation, and a consent form. However, the
eligibility evaluation did not begin until December 19, 2011, because MSD and M.A.’s
Parents could not agree on the terms of Parents’ consent to the evaluation or the plan for
1 On December 20, 2013, MSD appealed D.A.-320 to the United States Court of Appeals
for the Ninth Circuit.
2 The cost of the IEE was awarded to M.A.’s Parents in D.A.-320.
MEMORANDUM DECISION AND ORDER - 5
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 6 of 32
evaluation itself. By the time M.A.’s Parents filed a request for due process hearing with
MSD in January 2012, the seventeen-member eligibility team3 had yet to determine
whether M.A. was eligible for special education services.
M.A.’s Parents’ initial due process complaint alleged, inter alia, MSD had not
timely evaluated M.A. pursuant to Parents’ request for a special education eligibility
evaluation in September 2011. In response, MSD moved to dismiss the due process
complaint or, alternatively, stay the administrative proceeding until MSD completed its
eligibility determination. But, before these motions could be resolved, MSD determined,
in late February 2012, that M.A. was not eligible for special education. This
determination, detailed in MSD’s Eligibility Report, (Dkt. 12, Resp.’s Ex. 708), was
based on an extensive record of assessments and observations of M.A., including those
made by M.A.’s mother and the third-party professionals who contributed to the IEE.
Shortly thereafter, M.A.’s Parents filed a second due process complaint, this time
challenging MSD’s ineligibility determination.
The two due process complaints were consolidated into a single case, involving
eleven contested issues. M.A.’s Parents challenged the substantive bases for MSD’s
determination as well as procedural matters such as timeliness of the evaluation and the
adequacy of Parents’ participation. HO Litteneker presided over a hearing on the
3 The eligibility team consisted of a facilitator, M.A.’s mother, D.A., Centennial’s
Principal, an assistant principal, MSD’s special education director, a special education
department chair, a special education supervisor, the school psychologist, the school’s speech-
language pathologist, an occupational therapist, a counselor, three teachers, Parents’ legal
counsel and a paralegal, and MSD’s legal counsel. (Dkt. 12, Resp.’s Ex. 708 at 2.)
MEMORANDUM DECISION AND ORDER - 6
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 7 of 32
consolidated matter, which spanned ten days from late April through late June 2012,
included testimony from twenty-two witnesses, and involved hundreds of exhibits.
Prior to the hearing, HO Litteneker ruled against Parents on several motions and
maintained these rulings upon reconsideration. Specifically, the HO declined to admit
prior testimony and reports by Dr. Craig Beaver and Dr. Barbara Webb from the
administrative proceedings underlying D.A.-119 (the ADA and § 504 case) and D.A.-320
(the IEE case). HO Litteneker was “not persuaded that there is any link for the purposes
of determining the relevancy of Dr. Webb and Dr. Beaver’s testimony in connection with
this particular question as to whether the student is eligible for Special Education.” 4 (Dkt.
12, Tr. 26:17-24.) In addition, the HO excluded prior testimony from several other
experts retained by Parents, finding that Parents did not show these witnesses were
unavailable and noting that many of their opinions were incorporated into MSD’s
eligibility evaluation. M.A.’s Parents also contested the HO’s exclusion of certain
testimony by M.A.’s peer mentor, which related to events before August 2011. Finally,
HO Litteneker declined to compel production of certain test protocols administered by
the Centennial High School psychologist, because there was no showing of relevance.
HO Litteneker issued his Findings of Fact, Conclusions of Law and Decision on
July 5, 2012.5 The HO thoroughly reviewed the facts regarding M.A. and his disability;
MSD’s eligibility determination, including the IEE and input from M.A.’s mother; and
however. (Dkt. 12, Pldg. 56 at 4 n.1.)
4 HO Litteneker did allow prior testimony to be used for impeachment purposes,
5 On July 17, 2012, HO Litteneker issued amended Findings of Fact, Conclusions of Law
and Decision, which omitted personally identifiable information. (Dkt. 1-3.)
MEMORANDUM DECISION AND ORDER - 7
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 8 of 32
M.A.’s participation in the general education curriculum at Centennial High School. He
described the governing legal standards before making the following legal conclusions:
(1) MSD conducted a timely eligibility evaluation; (2) MSD complied with the IDEA’s
Child Find requirements; and (3) MSD conducted a sufficient eligibility evaluation. HO
Litteneker concluded the eligibility evaluation was sufficient because the substantial
record indicated MSD:
(a) considered the relationship between M.A.’s medical condition, however
characterized, and his educational performance;
(b) used a variety of assessment techniques;
(c) considered the IEE results;
(d) allowed for parental participation and considered parental input;
(e) adequately assessed general skills; and
(f) did not predetermine M.A.’s ineligibility.
Accordingly, HO Litteneker found for MSD on every claim asserted and denied Parents’
In August 2012, M.A.’s Parents timely appealed the HO’s decision to the Court.
(Dkt. 1.) The Complaint requests an order reversing HO Litteneker’s decision, a
declaration that MSD violated the IDEA, compensatory damages for parent-funded
support and assessments of M.A., compensatory education, attorney fees, costs, and such
other relief as the Court may deem appropriate. (Id.) MSD provided a copy of the
MEMORANDUM DECISION AND ORDER - 8
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 9 of 32
administrative record to the Court on February 19, 2013.6 Thereafter, the Court approved
the parties’ stipulated motion on a briefing schedule in this matter, (Dkt. 14), and the
parties have briefed the issues.7 On November 7, 2013, the Court heard oral argument on
the briefs, and the matter is ripe for review.
STANDARD OF REVIEW
The IDEA directs the Court to “receive the records of the administrative
proceeding[,] hear additional evidence at the request of a party[, and base] its decision on
the preponderance of the evidence.” 20 U.S.C. § 1415(i)(2)(C). Thus, “Congress intended
the courts to make bounded, independent decisions—bounded by the administrative
record and additional evidence, and independent by virtue of being based on a
preponderance of the evidence before the court….” Town of Burlington v. Mass. Dep’t of
Educ., 736 F.2d 773, 791 (1st Cir. 1984), aff’d sub nom. Burlington Sch. Comm. v. Mass.
Dep’t of Educ., 471 U.S. 359 (1985).
6 The voluminous administrative record in this case was compiled into an electronic copy
by HO Litteneker. This electronic copy was provided to the Court on a CD rather than being
filed on CM/ECF. (Dkt. 12.) The CD includes four subfolders: (1) administrative “pleadings”
including HO Littenker’s various orders, (2) Respondent’s (MSD’s) exhibits, (3) Petitioner’s
(M.A.’s Parents’) exhibits, and (4) a hearing transcript. The administrative pleadings and exhibits
are individually numbered, and the transcript is organized in typical fashion with page and line
numbers. Citations to administrative pleadings and exhibits will include the record’s docket
number in this case, an abbreviated description of the subfolder, the document number within
that subfolder, and page numbers if necessary. For example, page 5 of MSD’s Eligibility Report,
which is Respondent’s Exhibit 708, is cited as follows: (Dkt. 12, Resp.’s Ex. 708 at 5.)
7 The Court directed both parties to inform the Court as to whether they would request
consideration of additional evidence pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii) and whether they
believed an evidentiary hearing would be necessary. As discussed below, M.A.’s Parents
requested the Court consider additional evidence, but their briefing on this point is not well-
developed. (Dkt. 15 at 3-4.) M.A.’s Parents also are equivocal on the need for an evidentiary
hearing. (Id.) MSD did not specifically request consideration of additional evidence but reserved
the right to do so at a later time. (Dkt. 16 at 6.) The Court concludes an evidentiary hearing is not
MEMORANDUM DECISION AND ORDER - 9
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 10 of 32
Although the usual deferential standard for administrative appeals does not apply
to IDEA cases, full de novo review is not appropriate. Ojai Unified Sch. Dist. v. Jackson,
4 F.3d 1467, 1473 (9th Cir. 1993) (adopting Town of Burlington, 736 F.2d at 790-91).
The United States Supreme Court has recognized that courts lack the expertise to
formulate educational policy, an area traditionally reserved to state policymakers and
education experts. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 207-08 (1982). Accordingly, the district courts must give “due weight” to the HO’s
decision and must not “substitute their own notions of sound educational policy for those
of the school authorities which they review.” Van duyn v. Baker Sch. Dist. 5J, 502 F.3d
811, 817 (9th Cir. 2007) (quoting Rowley, 458 U.S. at 206). Ultimately, the “amount of
deference accorded the hearing officer’s finding increases where they are thoughtful and
careful.” Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995).
As is generally the case in administrative appeals, “[t]he party challenging the
administrative decisions bears the burden of proof in seeking review in the district court.”
Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1398-99 (9th Cir. 1994), superseded
by statute on other grounds, IDEA, Pub. L. No. 105-17, 111 Stat. 37. Because M.A.’s
Parents seek reversal of the administrative decision, they bear the burden of proof.
M.A.’s Parents allege that HO Litteneker’s decision upholding MSD’s ineligibility
determination is “clearly erroneous.” (Dkt. 1 ¶ 69.) Specifically, M.A.’s Parents argue
HO Litteneker erred by excluding certain evidence and testimony that the Court now
should consider as additional evidence. Further, M.A.’s Parents claim MSD violated an
MEMORANDUM DECISION AND ORDER - 10
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 11 of 32
assortment of the IDEA’s procedural protections, most notably the requirement that
school districts provide parents a meaningful opportunity to participate in the eligibility
evaluation. But the crux of Parents’ appeal is that MSD and HO Litteneker arbitrarily
ignored clear evidence that M.A. is eligible for special education.
On this point, M.A.’s Parents argue that M.A. was denied FAPE guaranteed by the
IDEA because MSD and HO Litteneker selectively focused on M.A.’s academic
successes. Notwithstanding his passing grades, Parents claim M.A.’s Asperger’s disorder
and related conditions cause substantial academic, social, and life skill deficits that
necessitate special education. According to his parents, M.A.’s ability to “script” his
interactions with teachers makes MSD’s reliance on M.A’s classroom behaviors and
academic successes inappropriate. In contrast, M.A.’s Parents maintain the extensive
record of testing and observation by independent experts demonstrates substantial
educational deficits that entitle M.A. to special education.
Ninth Circuit precedent directs the Court to apply the Rowley educational benefit
standard in special education eligibility cases. Hood v. Encinitas Union Sch. Dist., 486
F.3d 1099, 1107 (9th Cir. 2007). The Rowley decision—which provides the definitive
interpretation of FAPE under the IDEA—involved a deaf child who was eligible for and
receiving both special education and related services under an IEP. 458 U.S. 176. The
Supreme Court held that a child with a disability receives FAPE when he or she has
“sufficient support services to permit the child to benefit educationally….” Id. at 203. For
that reason, the Court held that the child—who received speech therapy, was provided a
hearing aid, advanced from grade to grade in the general curriculum, but who was not
MEMORANDUM DECISION AND ORDER - 11
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 12 of 32
provided with a full-time sign-language interpreter—was not denied FAPE. Id. at 210.
The Court emphasized that FAPE is not a “potential-maximizing” education but, instead,
a “basic floor of opportunity.” Id. at 202, n.23.
Judicial review under the IDEA has both procedural and substantive dimensions.
According to Rowley, the general inquiry under 20 U.S.C. § 1415 is twofold. First, the
Court must determine whether MSD “complied with the procedures set forth in the Act.”
Id. at 206. Second is the substantive inquiry: whether M.A. received educational benefit
in the general classroom without special education. Hood, 486 F.3d at 1107 (citing
Rowley, 458 U.S. at 203-04). As explained below, this substantive analysis turns on
Idaho’s special education eligibility criteria. However, the Court first will address M.A.’s
Parents’ request to consider additional evidence before analyzing their procedural and
Request to Consider Additional Evidence
During the due process hearing before HO Litteneker, M.A.’s Parents moved for
admission of testimony and exhibits from the hearing conducted by HO Price in the D.A.-
320 proceeding, two administrative hearings under § 504 in the D.A.-119 proceeding, and
the state criminal proceedings against M.A.. Parents also sought to compel production of
the Vineland Scales of Adaptive Behavior test protocol. All of these matters were
considered by HO Litteneker in the context of Parents’ Motion to Admit Testimony and
Exhibits from Prior Proceedings, Motion to Compel, and Motion for Reconsideration.
(Dkt. 12, Pldgs. 17, 19, 33.) HO Litteneker denied the Motion to Compel and
conditionally denied the motion to admit prior exhibits and testimony. On
MEMORANDUM DECISION AND ORDER - 12
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 13 of 32
reconsideration, HO Litteneker noted M.A.’s Parents “did not offer any authority, only
argument and a touch too much hyperbole” and concluded “there is no connection to the
issue raised in this consolidated matter… and there does not appear to be an efficient
mechanism to parcel out the relevant and non-relevant testimony or exhibits from the
prior proceedings….” (Dkt. 12, Pldg. 56 at 3-4.)
M.A.’s Parents contend HO Litteneker improperly excluded proffered evidence
and limited the “scope of the testimony and exhibits presented solely to the question of
what MSD considered in its determination of eligibility, rather than what MSD should
have known.” (Dkt. 15 at 5.) As a proposed remedy, M.A.’s Parents request that the
Court consider, as “additional evidence,” testimony by Dr. Barbara Webb and Dr. Craig
Beaver, as well as certain test protocols and witness testimony concerning events before
Additional Evidence Under the IDEA
Once an IDEA appeal is before the district court, the Act directs the court to “hear
additional evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C)(ii). “But not all
evidence is ‘additional evidence.’” E.M. v. Pajaro Valley Unif. Sch. Dist., 652 F.3d 999,
1004 (9th Cir. 2011). Additional evidence is “non-cumulative, relevant, and otherwise
admissible.” Id. at 1005. The Court has discretion to determine what constitutes
additional evidence in the context of this case, but the Court also must “be careful not to
allow such evidence to change the character of the hearing from one of review to a trial
de novo.” Ojai, 4 F.3d at 1473. It is M.A.’s Parents burden to establish that the proffered
evidence meets the definition above.
MEMORANDUM DECISION AND ORDER - 13
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 14 of 32
b. M.A.’s Parents Have Not Demonstrated the Proffered Evidence Qualifies
as Additional Evidence
M.A.’s Parents concede that “the record before the Court contains sufficient
evidence to permit the Court to find M.A. eligible, the Court is fully informed regarding
the evidence before it, that time is of the essence in resolving this case, and therefore that
an evidentiary hearing is not necessary in this matter.” (Dkt. 15 at 3-4.) On this shaky
foundation, M.A.’s Parents pile conclusory statements about the impropriety of HO
Litteneker’s decision to exclude certain evidence. But notably absent from Parents’
request is an explanation of why the proffered evidence is relevant, non-cumulative, and
otherwise admissible. Instead, M.A.’s Parents invite the Court to scour the voluminous
records of at least four other proceedings to confirm their unelaborated contention that
the evidence is relevant. A brief review of the record demonstrates otherwise.
Craig Beaver, Ph.D., examined M.A. in conjunction with his criminal proceedings
and during his incarceration at the Ada County Juvenile Detention Center. MSD notes
that Dr. Beaver never observed M.A. in the school setting, he has not assessed or seen
M.A. in almost four years, and his reports in M.A.’s criminal proceeding have been
sealed by state court order. Further, the IEE, which is incorporated in MSD’s eligibility
report, discusses Dr. Beaver’s findings. (Dkt. 12, Resp.’s Ex. 708 at 222.) The passage of
time and the circumstances of Dr. Beaver’s evaluations (criminal proceedings) suggest
they are not relevant to this proceeding. M.A.’s Parents offer no explanation to counter
MEMORANDUM DECISION AND ORDER - 14
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 15 of 32
Parents also proffer testimony by Dr. Barabara Webb, who prepared the IEE of
M.A. and testified in both D.A.-320 and D.A.-119. Six of Dr. Webb’s reports, including
the IEE and its various amendments, appear in MSD’s eligibility report. (Id. at 168-268.)
Nevertheless, M.A.’s Parents claim Dr. Webb’s prior testimony should be considered as
additional evidence “particularly in light of [her] unavailability.” (Dkt. 15 at 5.) This
claim is puzzling because HO Litteneker specifically permitted witnesses to testify out of
order and via telephone provided they were sworn, could be identified, and that the
witness state who and what documents are in the room with them. (Dkt. 12, Pldg. 32 at
4.) Despite this largess, Dr. Webb did not appear, by telephone or otherwise, to testify.
Moreover, HO Litteneker addresses Dr. Webb’s various reports at length in his decision.
(Dkt. 1-3 at 20.) Thus, Dr. Webb’s prior testimony appears to be cumulative of evidence
in the record—a record Parents argue is sufficient to find M.A. eligible.
Last, M.A.’s Parents claim the Hearing Officer erroneously found irrelevant the
Vineland test protocols and testimony related to occurrences before August 2011. While
the prior testimony could, if shown, be relevant and non-cumulative, Parents make no
such showing. Rather, M.A.’s Parents cite to excluded testimony from A.C., M.A.’s peer
mentor at Centennial High School, as if the relevance of this testimony is self-evident.
(Dkt. 19 at 10.) Parents’ request for admission of the Vineland protocols suffers from a
similar infirmity—the assumption that an unembellished claim of “error” automatically
renders the protocols relevant, non-cumulative, and otherwise admissible. M.A.’s Parents
have not shown their proffered additional evidence was improperly excluded by HO
MEMORANDUM DECISION AND ORDER - 15
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 16 of 32
Litteneker or otherwise qualifies as additional evidence under Ninth Circuit precedent.
Therefore, the Court denies Parents’ request to consider this additional evidence.
M.A.’s Parents allege MSD committed a variety of procedural errors in
determining M.A. was not eligible for special education. However, the only substantial
argument on the procedural front is that MSD infringed on Parents’ right to participate in
the eligibility evaluation. The remaining procedural allegations are just that—
unsupported recitations of the many issues raised in the due process proceedings. (See
Dkt. 1 ¶ 9.) For example, M.A.’s Parents alleged MSD violated the IDEA’s “Child Find”
obligations, did not conduct a timely evaluation, and failed to evaluate M.A. in all areas
of suspected disability. (Id.) Although these allegations are not independently supported
with argument or legal authority, M.A.’s Parents claim they “continue to assert those
areas in this case.” (Dkt. 15 at 5 n.1.) But, as the Court has already stated that, a claim of
error with nothing more does not entitle Parents to relief.
“Procedural flaws do not automatically require a finding of a denial of FAPE.”
W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.
1992) (“Target Range”). On the other hand, “procedural inadequacies that result in the
loss of educational opportunity, or seriously infringe on the parents’ opportunity to
participate in the IEP formulation process, clearly result in the denial of a FAPE.” Id.
Although the Target Range court addressed the adequacy of an IEP, the Court finds this
standard also applies in the eligibility context for two reasons. First, the IDEA affords
similar procedural protections at the eligibility stage, including parental consent and
MEMORANDUM DECISION AND ORDER - 16
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 17 of 32
participation requirements. 20 U.S.C. § 1414(b)(1), (4). Second, in Hood v. Encinitas
Union Sch. Dist., the Ninth Circuit endorsed the use of the Rowley standard for eligibility
cases, 486 F.3d at 1107, and the Target Range procedural error test likewise depends on a
loss of educational opportunity.
a. M.A.’s Parents Meaningfully Participated in the Eligibility Process
The IDEA places a premium on parental participation at both the eligibility stage
and in the formulation of an IEP. See Shapiro v. Paradise Valley Unified Sch. Dist. No.
69, 317 F.3d 1072, 1078 (9th Cir. 2003) (“The Act imposes upon the school district the
duty to conduct a meaningful meeting with the appropriate parties.”). Indeed, the IDEA’s
procedural protections for parents are “critical” to carrying out its purposes. Amanda J. v.
Clark County Sch. Dist., 267 F.3d 877, 891 (9th Cir. 2001). Here, M.A.’s Parents claim
that MSD’s conduct in this case “would render parental participation in the IEP eligibility
process completely pointless.” (Dkt. 19 at 3.)
There is no dispute that M.A.’s Parents—particularly his mother, D.A.— actively
participated in the eligibility team meetings. In fact, MSD’s eligibility report includes a
verbatim copy of a four-page statement of M.A.’s strengths and weaknesses, which D.A.
presented to the eligibility team on February 16, 2012. (Dkt. 12, Resp.’s Ex. 708 at 2-5.)
HO Litteneker’s findings further highlight the extensive record of D.A.’s active
participation in the eligibility process. (Dkt. 1-3 at 28, 37-38, 40-42.) The record clearly
demonstrates that MSD included M.A.’s Parents in the eligibility process and considered
their input. Thus, M.A. was not denied FAPE on the basis of inadequate parental
MEMORANDUM DECISION AND ORDER - 17
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 18 of 32
Moreover, the parties agree that, while the IDEA requires school districts to
consider parental input, the Act does not require districts to “acquiesce” to parents. (Dkt.
19 at 2 (quoting Dkt. 16 at 10).) Indeed, a “difference in educational philosophy”
between parents and school districts is not a denial of meaningful participation because
the school district is obligated to consider more than just the parents’ input. Ms. S. v.
Vashon Island Sch. Dist. 337 F.3d 1115, 1133 (9th Cir. 2003). Nevertheless, M.A.’s
Parents contend their involvement in the eligibility process was “little more than window
dressing.” (Dkt. 19 at 3.) This argument is not an attack on MSD’s procedures so much as
it is a claim that MSD’s substantive ineligibility determination was contrary to evidence
provided by M.A.’s Parents and their experts. As such, this claim is effectively subsumed
in Parents’ substantive claims.
Other Alleged Procedural Errors Do Not Amount to a Denial of FAPE
The consolidated due process proceeding before HO Litteneker involved 11
contested issues, some of which HO Litteneker noted were not clearly identified. Parents’
arguments in this proceeding also do not clearly delineate the issues before the Court. In
particular, M.A.’s Parents obscurely claim that they “continue to assert” certain,
unspecified issues in this case without independent briefing or clear identification. (Dkt.
15 at 5 n.2.) As stated above, M.A.’s Parents bear the burden of proof. A party cannot
carry this burden with vague assertions alone. Parents have not shown how the sundry
procedural issues decided below and merely reasserted here deprived M.A. of educational
MEMORANDUM DECISION AND ORDER - 18
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 19 of 32
opportunity or otherwise denied him FAPE. Therefore, the Court will not overturn HO
Litteneker’s conclusions on these matters.8
In essence, M.A.’s Parents claim a preponderance of the evidence establishes that
M.A. needs special education. According to M.A.’s Parents, MSD and HO Litteneker’s
analysis overemphasized M.A.’s academic successes and failed to consider how his
condition broadly affects his educational performance. Parents argue that MSD and HO
Litteneker arbitrarily disregarded relevant evidence provided by Parents and their experts,
which indicates M.A.’s significant academic, social, and life skill deficits. As a result,
Parents maintain that MSD ignored M.A.’s demonstrated need for special education.
Parents conclude these substantive flaws entitle M.A. to compensatory education and
As a preliminary matter, it is noteworthy that school districts must provide FAPE
under both § 504 and the IDEA, but “the two requirements contain significant
differences.” Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008). During oral
argument before the Court, MSD suggested that M.A. received FAPE under the IDEA
8 After thorough and careful consideration of the record, HO Litteneker concluded: (1)
Parents’ “Child Find claim is essentially subsumed by the Parents [sic] claim that the Student
was not properly evaluated” (Dkt. 1-3 at 35); (2) MSD conducted a timely special education
eligibility evaluation (Id. at 36); (3) MSD “clearly evaluated the child in all areas of suspected
disability,” including autism, emotional disability, and speech language disorder (Id. at 37); and
(4) MSD did not predetermine ineligibility (Id. at 40).
9 M.A.’s Parents also assert, without more, that the Court should grant relief because
MSD failed to: (a) develop an IEP for M.A., (b) provide supplementary aides and services, and
(c) address transition services. (Dkt. 15 at 2.) But MSD points out, and the Court agrees, that a
decision on these issues is premature because M.A. must be found eligible for special education
before he would be entitled to any of these services. See 34 C.F.R. § 300.320. Thus, the Court
will not address these matters further.
MEMORANDUM DECISION AND ORDER - 19
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 20 of 32
because a jury found M.A. was not denied FAPE under § 504. See D.A.-119, Dkt. 127 (D.
Idaho July 26, 2013) (Special Verdict). If anything, the reverse is true: “the U.S. DOE’s
§ 504 regulations distinctly state that adopting a valid IDEA IEP is sufficient but not
necessary to satisfy the § 504 FAPE requirements.” Mark H., 513 F.3d at 933. (citing 34
C.F.R. §§ 104.33(b)(2), 104.36). Further, a denial of FAPE under the IDEA does not
necessarily amount to a denial of FAPE under § 504. Id. The two statutes have
complementary but distinct purposes. Hence, the verdict in D.A.-119 is not dispositive of
Parents’ IDEA claims.
The IDEA’s implementing regulations obligate school districts to base eligibility
decisions on a variety of “relevant functional, developmental, and academic information
about the child, including information provided by the parent….” 20 U.S.C.
§ 1414(b)(2)(A). Further, a determination that a student is eligible for special education
cannot be based on “any single measure or assessment as the sole criterion for
determining whether a child is [eligible].” Id. § 300.304(b)(3). In other words, an
eligibility determination is a team effort, requiring consideration of a broad range of
information provided by both the school district and parents. As one court observed, “a
physician cannot simply prescribe special education; rather, the Act dictates a full review
by an IEP team composed of parents, regular education teachers, special education
teachers, and representatives of the local educational agency.” Marshall Joint Sch. Dist.
No. 2 v. C.D., 616 F.3d 632, 640-41 (7th Cir. 2010) (citing 20 U.S.C. §§ 1414(d)(1)(B),
MEMORANDUM DECISION AND ORDER - 20
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 21 of 32
MSD’s comprehensive, 268-page Eligibility Report, (Dkt. 12, Resp.’s Ex. 708),
amply demonstrates compliance with these requirements. The report details evaluations
conducted by the Boise School District during M.A.’s incarceration. It also summarizes
numerous in-school assessments by MSD personnel—including teachers, MSD’s special
education supervisor, a school psychologist, a speech-language pathologist, and an
occupational therapist—after M.A. returned to Centennial High School. In addition, the
report discusses at length out-of-school observations by D.A. and the findings of the
independent professionals who contributed to Dr. Webb’s IEE. The IEE is based on, and
MSD’s Eligibility Report incorporates, assessments by independent professionals,
including an occupational therapist, a speech-language pathologist, a neuropsychologist,
and a behavioral specialist. It is clear MSD’s evaluators reach different conclusions than
M.A.’s Parents and their experts. But it is equally clear MSD considered and based its
decision on relevant functional, developmental, and academic information—including the
IEE and parental input. With this extensive body of evidence in mind, the Court now
considers whether M.A. meets Idaho’s special education eligibility criteria.
Idaho’s Special Education Eligibility Criteria
One of the IDEA’s purposes is “to ensure that all children with disabilities have
available to them a free appropriate public education [FAPE] that emphasizes special
education and related services designed to meet their unique needs and prepare them for
further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A).
However, the IDEA does not mandate special education for all children diagnosed with a
disability. Only children who meet the Act’s definition of a “child with a disability”
MEMORANDUM DECISION AND ORDER - 21
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 22 of 32
qualify for special education and related services. Id. § 1414(b), (d). The Act’s
definitional section states that a child with “autism, … other health impairments, or
specific learning disabilities” is a “child with a disability” when the child, “by reason [of
the disability], needs special education and related services.” Id. § 1401(3)(A) (emphasis
The parties agree that the relevant eligibility criteria appear in the Idaho Manual. 10
“State standards that are not inconsistent with federal standards are also enforceable in
federal court.” Target Range, 960 F.2d at 1483. Accordingly, federal courts routinely
apply states’ eligibility criteria to determine whether a child needs special education. See,
e.g., Hood, 486 F.3d at 1104 (applying California criteria for “specific learning
disability” and “other health impairments”). The Idaho Manual sets out a “three-prong
test for eligibility”:
1. the eligibility criteria established by the state for a specific disability are
2. the disability must have an adverse impact on the student’s education,
3. the student must need special education in order to benefit from his or
Idaho Manual at 44. These criteria are not inconsistent with the general eligibility criteria
provided in the IDEA or its implementing regulations. See 20 U.S.C. § 1401(3)(A); 34
C.F.R. § 300.8. And there is no dispute that M.A. meets the criteria for a specific
10 Available at: http://www.sde.idaho.gov/site/special_edu/manual_page.htm (last
accessed Jan. 3, 2014).
MEMORANDUM DECISION AND ORDER - 22
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 23 of 32
disability, namely autism.11 However, the parties vigorously dispute whether M.A.
satisfies the second and third criteria.
b. M.A.’s Condition Does Not Have an Adverse Impact on His Education
Education, as M.A.’s Parents correctly note, is a broad concept. Reflecting this
understanding, the Idaho Manual states:
The term “adverse effect on educational performance” is broad in scope.
An adverse effect is a harmful or unfavorable influence. Educational
performance includes both academic areas (reading, math, communication,
etc.) and nonacademic areas (daily life activities, mobility, pre-vocational
and vocational skills, social adaptation, self-help skills, etc.). Consideration
of all facets of the student’s condition that adversely affect educational
performance involves determining any harmful or unfavorable influences
that the disability has on the student’s academic or daily life activities.
Idaho Manual at p. 44-45. M.A.’s Parents contend HO Litteneker committed reversible
error by improperly conflating M.A.’s academic performance with his educational
MSD’s Eligibility Report and HO Litteneker’s decision highlight M.A.’s overall
success in the general curriculum at Centennial High School. This is entirely appropriate
because, when a disabled student “is being educated in the regular classrooms of a public
school system, the achievement of passing marks and advancement from grade to grade
will be one important factor in determining educational benefit.” Rowley, 458 U.S. at 207
n.28. Indeed, M.A.’s grades are generally average to above average, he passed the Idaho
Standards Achievement Test (a prerequisite for high school graduation), and he otherwise
11 Although M.A.’s Parents assert the school district failed to evaluate M.A. in all areas
of suspected disability, their arguments center on M.A.’s autism. Indeed, M.A.’s Parents do not
specifically address Idaho’s eligibility criteria for disabilities other than autism.
MEMORANDUM DECISION AND ORDER - 23
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 24 of 32
qualified to graduate from high school, in part by completing a senior project.12 In
addition to standard academic subjects, M.A. passed a drama class and several
professional technical classes, including Business Essentials, Personal Finance, Web
Design, and Broadcasting. (Dkt. 12, Resp.’s Ex. 708 at 32-33.) Tellingly, the eligibility
team found “[M.A.] is being exposed to the same transition/vocational/occupational
experiences as his senior peers and [M.A.’s] performance in these areas is at a level
similar to his typical peers.” (Id. at 33.) Nevertheless, M.A.’s Parents allege the “Hearing
Officer found, without any support in the record, that the ‘District adequately assessed
the Student’s transitional skills and pre-vocational skills.’” (Dkt. 1 ¶ 98.)
But Parents do not dispute M.A. took and passed a number of courses that taught
life and pre-vocational skills. While M.A.’s Parents insist educational performance is a
broad concept, they characterize almost all graded activity as exclusively academic. Yet
MSD points out classes like broadcasting and the senior project involved group work and
public speaking. In other words, the record demonstrates M.A. participated in, and
passed, classes with significant nonacademic pre-vocational, vocational, and self-help
skill components. Parents do not counter this evidence so much as they focus on evidence
of M.A.’s autistic behaviors.
There is considerable evidence that M.A.’s autism can affect his ability to
appropriately interact with peers, work outside of established routines, and remain fully
12 The record discloses average to above average grades in math and English (mostly B’s,
some C’s). (Dkt. 12, Resp.’s Ex. 708 at 31-32.) The one exception to this trend is an F in Algebra
II during Fall 2011. (Id.) HO Litteneker heard substantial testimony regarding this poor grade.
The record supports the conclusion that Algebra II was not the proper placement for M.A. and
that he was urged by school staff to take a math modeling course instead.
MEMORANDUM DECISION AND ORDER - 24
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 25 of 32
engaged in the classroom environment. For instance, an independent behavioral specialist
noted that M.A. uses journaling as a way to withdraw from class discussions. M.A.’s
fellow student and assigned peer mentor, A.C., testified to M.A.’s difficulty in social
situations. And M.A.’s mother, D.A., recounts similar difficulties in social situations, as
well as rigid thinking and significant troubles with life skills like navigating the bus
system or managing finances. The record also discloses that M.A. exhibits autistic
behaviors such as perching, self-isolation, and difficulty understanding personal space.
D.A.’s remarks to the eligibility team crystalize Parents’ position: “on paper he is smart,
but that doesn’t mean he can do simple things.” (Dkt. 12, Resp.’s Ex. 708 at 5.)
That M.A. has a form of autism or that his behaviors are consistent with this
diagnosis is not in dispute, however. HO Litteneker noted that “[t]here was no element of
the manifestations of [M.A.]’s autism that was not observed, considered, reviewed and
testified to by the classroom personnel and [MSD] professional staff at Centennial High.”
(Dkt. 1-3 at 39.) Yet none of the MSD assessments found behaviors that impeded M.A.’s
participation in the general education curriculum. And, to the extent these in-school
assessments did not address autism’s effect on M.A.’s educational performance, the IEE
and D.A.’s personal observations fill in the gaps with numerous out-of-school
assessments. But the question is not whether M.A. could benefit from services related to
self-help skills or socialization. Rather, the question is whether M.A.’s autism manifests
itself in a way that adversely affects his educational performance in the general
MEMORANDUM DECISION AND ORDER - 25
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 26 of 32
On the whole, the evidence compels a negative answer to this question. The
Supreme Court’s admonition that the IDEA requires only a “basic floor of opportunity”
fortifies this conclusion. Rowley, 458 U.S. at 200. To the extent M.A.’s Parents argue
M.A.’s individual weaknesses demonstrate an adverse effect on educational performance,
they rely on a definition of “adverse effect” that is in tension with the teaching of Rowley.
Indeed, a finding that any weakness in any academic or nonacademic area constitutes an
adverse effect on educational performance would turn the IDEA’s floor into a ceiling
over the heads of all but the most gifted children. While D.A. and the IEE extensively
documented M.A.’s weaknesses, largely based on assessments outside of school, the
consensus among M.A.’s day-to-day teachers was that M.A. possessed sufficient
academic and nonacademic skills to participate, and in some cases to excel, in the general
curriculum. And while the record indicates M.A. has significant social and pragmatic
difficulties, he also has overcome these difficulties to the extent necessary to navigate a
1,700-student high school and meet all graduation requirements. Thus, the Court is not
persuaded that M.A.’s disability has an adverse effect on his educational performance.
M.A. Does Not Need Special Education to Benefit from His Education
Even if M.A.’s Parents could demonstrate an adverse effect on M.A.’s educational
performance, they must further demonstrate special education is necessary for M.A. to
receive educational benefit. “Special education is specially designed instruction, at no
cost to the parents, to meet the unique needs of a child with a disability, including
instruction conducted in the classroom….” 20 U.S.C. § 1401(29). Critically, under the
IDEA’s implementing regulations, a disabled child is not a “child with a disability” if he
MEMORANDUM DECISION AND ORDER - 26
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 27 of 32
or she “only needs a related service and not special education.” 34 C.F.R.
§ 300.8(a)(2)(i). “Related services” are typically “transportation and such developmental,
corrective, and other supportive services… as may be required to assist a child with
disability to benefit from special education.” Id. § 1401(26). In Idaho, special education
relates to instruction, including speech-language therapy,13 that is specially designed to
allow a disabled child to receive educational benefit. On the other hand, related services
are therapies and assistance that enable the child to receive instruction. But a child is
eligible for related services only if that child is first found eligible for special education.
The distinction is key, because M.A.’s high-functioning autism appears to
necessitate related services far more than it does special education. For example, the
“Recommendations to Ensure FAPE” in Dr. Webb’s IEE largely focus on M.A.’s need
for related services. Dr. Webb’s recommendations devote about one and one half pages to
M.A.’s academic and speech-language instruction needs and about three pages (and far
more recommended time) to “related services.”14 (Dkt. 12, Resp.’s Ex. 708 at 203-06.)
All told, less than 30% of the 4,084 hours Dr. Webb recommended as compensatory
education falls within Idaho’s definition of “special education.” (Id. at 214.) Testimony
13 The federal regulations allow the States to consider “speech-language pathology
services, or any other related service,” as “special education” if the state rules so provide. 34
C.F.R. § 300.39(a)(2)(i). Idaho’s rules only incorporate speech-language pathology services into
the definition of special education. IDAPA 08.02.03.109.01.g.
14 Dr. Webb recommends a total of 790 hours of academic services (math, writing, and
study skills, and “social supports”) and 450 hours of speech language therapy, services that
would presumably qualify as “special education.” Further, Dr. Webb recommends 2,844 hours of
services that fall within the definition of “related services.” These related services include
behavioral, occupational, adaptive, and pre-vocational therapies as well as time for assistive
technology instruction and work with an “intervention coordinator.” (Dkt. 12, Resp.’s Ex. 708 at
MEMORANDUM DECISION AND ORDER - 27
Case 1:12-cv-00426-CWD Document 28 Filed 01/06/14 Page 28 of 32
by D.A. and assessments by third-party evaluators demonstrates M.A. has significant
needs with regard to behavior, socialization, and self-sufficiency. But M.A.’s need for
related services to address these deficits is immaterial if he does not need special
M.A.’s Parents contend professional observations included in the IEE establish
M.A.’s need for special education. MSD argues its evaluations prove otherwise.
Ultimately, this raises the issue of credibility. Here, HO Litteneker found more credible
testimony by MSD’s professional evaluators and M.A.’s classroom teachers because their
testimony was “consistent” and Parents’ third-party experts were “infrequent classroom
observers.” (Dkt. 1-3 at 40.)
Consistent with the established rule of deference to the fact finder, the Ninth
Circuit has recognized that “a HO who receives live testimony is in the best position to
determine issues of credibility.” Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 889