NOT FOR PUBLICATION FILED

FEB 14 2018

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

E.F., a minor, by and through his parents No. 15-56452 Eric Fulsang and Aneida Fulsang; et al., D.C. No. Plaintiffs-Appellants, 8:14-cv-00455-CJC-RNB

v.

MEMORANDUM*

NEWPORT MESA UNIFIED SCHOOL

DISTRICT,

Defendant-Appellee.

On Remand from the United States Supreme Court

Before: TALLMAN and N.R. SMITH, Circuit Judges, and MURPHY,** District Judge.

E.F., a minor, and his parents, Eric and Aneida Fulsang, appeal from the

district court’s decision affirming the ruling of an administrative law judge (ALJ)

and granting summary judgment for Newport Mesa Unified School District

(Newport). In the district court, the Plaintiffs-Appellants alleged claims arising

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation. under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et

seq.; Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132–34;

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and California law.

On March 21, 2017, we issued a memorandum disposition affirming the

judgment. E.F. v. Newport Mesa Unified Sch. Dist., 684 F. App’x 629 (9th Cir.

2017) (unpublished) (memorandum). In June 2017, the Supreme Court vacated the

judgment and remanded the case to us “for further consideration in light of” its

recent decision in Endrew F. v. Douglas Cty. Sch. Dist., RE-1, 580 U.S. —, 137 S.

Ct. 988 (2017). E.F. v. Newport Mesa Unified Sch. Dist., 138 S. Ct. 169 (Mem)

(2017).

On remand, we invited the parties to submit additional briefing addressing

the Supreme Court’s decision in Endrew. In Endrew, the Supreme Court rejected

the Tenth Circuit’s interpretation that the Supreme Court’s decision in Rowley1

1 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester, Cty. v. Rowley, 458 U.S. 176 (1982). 2 permitted merely a de minimis standard for measuring the progress of students on

individualized education programs who are not fully integrated in the regular

classroom. Endrew, 137 S. Ct. 988, 997–1001. The court concluded that the IDEA

requires “an educational program reasonably calculated to enable a child to make

progress appropriate in light of the child’s circumstances.” Id. at 1001.

We have already noted that Endrew did not change, but simply clarified

Rowley. M.C. v. Anetelope Valley Union High Sch. Dist., 858 F.3d 1189, 1200 (9th

Cir. 2017). Our standard comports with Endrew’s clarification of Rowley. See J.L.

v. Mercer Sch. Dist., 592 F.3d 938, 951 n.10 (9th Cir. 2010) (noting that the Ninth

Circuit uses “educational benefit,” “some educational benefit,” or “meaningful”

educational benefit and that meaningful access must confer “some educational

benefit”); Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (assessing

whether an early intervention plan required under the IDEA conveyed the student

“with a meaningful benefit”). Consequently, the ALJ’s application of the Ninth

Circuit’s standard was proper even before Endrew clarified the Supreme Court’s

holding in Rowley.

We therefore affirm the district court for the following reasons.

Newport did not deny E.F. a free appropriate public education (FAPE). The

district court properly accorded the ALJ’s decision substantial deference because

the ALJ’s decision was thorough, careful, impartial, and sensitive to the

3 complexity of the issues presented. See Capistrano Unified Sch. Dist. v.

Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995); Ojai Unified Sch. Dist. v. Jackson, 4

F.3d 1467, 1476 (9th Cir. 1993). The ALJ’s decision contained findings of fact

sufficiently linked to discrete analysis and thoughtful consideration of the

documents and testimony received during the seven-day administrative hearing.

Additionally, the record does not compel the conclusion that the ALJ erred

in affording little weight to the testimony of Dr. Elizabeth Hughes of the Institute

for Applied Behavior Analysis (IABA). See Amanda J., 267 F.3d at 889.

In light of the deference appropriately afforded to the ALJ’s decision, we

hold that the district court properly upheld the ALJ’s decision on Plaintiffs’ IDEA

claims. With the exception of Newport’s failure to assess E.F. for a high-tech

assistive technology (AT) device between February 2012 and February 2013,

E.F.’s individualized education programs were otherwise “reasonably calculated to

enable [E.F.] to receive educational benefits” and make appropriate progress in

light of the circumstances. Id. at 890 (quoting Rowley, 458 U.S. at 206–07).

Newport provided E.F. with a FAPE. Before February 2012, E.F. made

some progress toward his speech and language goals, and Newport was using non-

electronic AT devices to improve E.F.’s communicative skills. See 20 U.S.C. §

1414(d)(3)(B)(v). Although Plaintiffs presented evidence that children with

autistic-like behaviors may begin using electronic AT devices as early as age three,

4 evidence adduced at the administrative hearing also established that some

foundational behavioral and communicative skills are necessary in order for

children to use electronic AT devices successfully. Accordingly, we hold that

Newport did not deny E.F. a FAPE by failing to assess him for an electronic AT

device before February 2012.

The district court properly granted Newport’s motion for summary judgment

of Plaintiffs’ claims under Title II of the ADA and Section 504 of the

Rehabilitation Act. A reasonable factfinder could not conclude that Newport’s

denial of an electronic AT assessment before 2013 amounted to intentional

discrimination in the form of deliberate indifference. See A.G. v. Paradise Valley

Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016). The record

demonstrates that, while Newport should have assessed E.F. for a high-tech AT

device before 2013, its decision not to do so was the result of thorough and good-

faith evaluations of E.F.’s foundational communicative skills.

The district court also correctly granted Newport’s motion for summary

judgment of Plaintiffs’ state law claims on the grounds that such claims were

barred by Eleventh Amendment immunity. See Corales v. Bennett, 567 F.3d 554,

573 (9th Cir. 2009) (dismissing state civil rights claims brought against a school

district in federal court as barred by Eleventh Amendment immunity).

5 Finally, the district court did not err when it entered summary judgment

before the close of discovery. Plaintiffs had sufficient time for discovery

“necessary to develop ‘facts essential to justify . . . opposition’ to the [summary

judgment] motion” because of the age of the case and the well-developed record at

the time of the district court’s order. Portland Retail Druggists Ass’n v. Kaiser

Found. Health Plan, 662 F.2d 641, 645 (9th Cir. 1981) (quoting Fed. R. Civ. P.

56). Nor did the district court abuse its discretion in failing to offer Plaintiffs

another opportunity to further amend their complaint. See Chappel v. Lab. Corp. of

Am., 232 F.3d 719, 725–26 (9th Cir. 2000).

Costs on appeal are awarded to Defendant-Appellee.

AFFIRMED.

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