M.M.

In this appeal we consider, among other matters, whether a school district’s failure to provide educational testing data to parents violated the procedural requirements of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1487 (“IDEA” or “Act”). We conclude that it did. We also conclude that the failure to provide the data prevented the parents from meaningfully participating in the creation of his individualized education program (“IEP”), thereby denying their son a free appropriate public education (“FAPE”) under the IDEA.

I

These consolidated appeals arise out of three administrative complaints and three district court lawsuits concerning the educational opportunities provided to C.M., a child who has been identified as an individual with learning disabilities. C.M.’s parents, M.M. and E.M., appeal from the district court’s decision to affirm the Office of Administrative Hearings (“OAH”) judge’s conclusion that the Lafayette School District (the “District”) did not violate the IDEA.

During the 2005-2006 school year, the District implemented a new Response-to-Intervention (“RTI”) approach to assist struggling learners in the general education…

dissenting:

I respectfully dissent from the majority’s holding that the Lafayette School District failed to provide M.M. a Free Appropriate Public Education, and from the reversal of the award of attorney’s fees. Giving appropriate deference to the findings of the state Administrative Law Judge (ALJ), I conclude that no procedural violation of the Individuals with Disabilities Education Act (IDEA) was committed by the School District. Neither do I agree that the district court failed to address Plaintiffs’s claim brought pursuant to Section 504 of the Rehabilitation Act.

My disagreement with the majority primarily stems from our differing view of the Response-to-Intervention (RTI) model utilized by the School District to measure achievement levels of all students in the school. It is undisputed that these assessment tools were administered to all students to identify those who might benefit from extra assistance, and were NOT a mechanism used to identify students in need of special education. Nevertheless, the majority holds that failure to provide *863 these test results to C.M.’s parents resulted in a violation of the IDEA.

The ALJ explored this matter in detail following an…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M.M.; E.M., individually and on No. 12-15769 behalf of their minor son C.M., Plaintiffs-Appellants, D.C. No. 3:10-cv-04223-SI v.

LAFAYETTE SCHOOL DISTRICT, a local educational agency;

LAFAYETTE BOARD OF EDUCATION,

Defendants-Appellees.

M.M.; E.M., individually and on No. 12-15770 behalf of their minor son C.M., Plaintiffs-Appellants, D.C. No. 3:09-cv-04624-SI v.

LAFAYETTE SCHOOL DISTRICT; OPINION

LAFAYETTE BOARD OF EDUCATION;

STATE OF CALIFORNIA DEPARTMENT

OF EDUCATION; JACK O’CONNELL,

as State Superintendent of Public Instruction for the State of California; DANA SASSONE;

CALIFORNIA DEPARTMENT OF

GENERAL SERVICES; WILL BUSH,

Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Susan Illston, Senior District Judge, Presiding

Argued and Submitted November 5, 2013—San Francisco, California

Filed September 16, 2014

Before: Sidney R. Thomas and Johnnie B. Rawlinson, Circuit Judges, and Kevin Thomas Duffy, Senior District Judge.*

Opinion by Judge Thomas; Dissent by Judge…