NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 29 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. M., by and through his Mother Maria No. 16-17327 Mandeville and MARIA MANDEVILLE, D.C. No. Plaintiffs-Appellants, 1:15-cv-00405-LEK-KJM

v.

MEMORANDUM*

KATHRYN S. MATAYOSHI,

Superintendent of the Hawaii Public Schools and STATE OF HAWAII DEPARTMENT

OF EDUCATION,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted June 15, 2018 Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

J.M., by and through his mother Maria Mandeville (collectively “plaintiffs”),

appeal an adverse district court judgment in this action under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The district court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. upheld a decision by an administrative hearing officer (“AHO”) concluding that the

individualized education program (“IEP”) proposed by the defendant state officials

and agencies in 2014 provided J.M. with the “free appropriate public education”

(“FAPE”) required by the IDEA. 20 U.S.C. § 1412(a)(1)(A). We have jurisdiction

under 28 U.S.C. § 1291, and determine de novo “[w]hether a proposed IEP

constitutes a FAPE,” giving deference to the AHO’s findings if “thorough and

careful.” Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1184 (9th

Cir. 2016) (citation omitted). We affirm the order of the district court.

1. Plaintiffs first argue that the AHO erred in placing the burden of proof on

them to show the 2014 IEP denied J.M. a FAPE. But, because this argument was

not presented to the AHO or the district court, it was abandoned. See Kaass Law v.

Wells Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th Cir. 2015); J.L. v. Mercer Island

Sch. Dist., 592 F.3d 938, 952 (9th Cir. 2010). In any event, it is settled that “[t]he

burden of proof in an administrative hearing challenging an IEP is properly placed

upon the party seeking relief.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62

(2005).

2. The district court did not err in holding that the 2014 IEP provided J.M.

with a FAPE. J.M. had undergone severe bullying at the public school in which he

was placed, and the AHO had accordingly found that an earlier IEP contained

insufficient protections against that bullying. See M.L. v. Fed. Way Sch. Dist., 394

2 F.3d 634, 650 (9th Cir. 2005) (recognizing that unremediated teasing by other

students can deny a FAPE). But the 2014 IEP was expressly designed to overcome

the deficiencies in the prior plan, mandating a full-time aide for J.M. and containing

a crisis plan, which provides that “[i]nteractions with peers will be monitored by an

adult” and sets forth a protocol to stop bullying if it occurs. The plan contains many,

if not all, of the suggestions to combat bullying set forth in a “Dear Colleague” letter

issued in 2014 by the U.S. Department of Education, Office for Civil Rights. See

Dear Colleague Letter: Responding to Bullying of Students with Disabilities

(October 21, 2014). Thus, the district court correctly concluded that plaintiffs have

not shown that, under the terms of the 2014 IEP, J.M. would be unable “to make

progress appropriate in light of [his] circumstances.” See Endrew F. ex rel. Joseph

F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).

3. We decline plaintiffs’ suggestion “to take the further step and give the

USDOE policy guidance on bullying . . . the force of law” by adopting “it as a

minimum standard when a public school agency develops an IEP” for disabled

children who are bullied. The IDEA expressly provides that informal guidance

letters are “not legally binding,” 20 U.S.C. § 1406(e), and that the Secretary “may

not issue policy letters . . . that . . . establish a rule that is required for compliance

3 with . . . this chapter without following the” rule-making requirements of the

Administrative Procedure Act, id. at § 1406(d).1

AFFIRMED.2

1 Indeed, plaintiffs acknowledge that “policy letters issued by the Secretary of Education are ‘provided as informal guidance and [are] not legally binding.’” Plaintiffs also argue that a second guidance letter, issued by the Office of Special Education and Rehabilitative Services (“OSERS”), requires specific anti-bullying measures. Because this argument was not exhausted before the AHO, it was abandoned. See J.L., 592 F.3d at 952. In any event, the second letter similarly does not mandate any particular anti-bullying remedy. 2 Plaintiffs’ motion for judicial notice, Dkt. 13, is GRANTED as to the Department of Health and Human Services “tip sheet” and DENIED as moot as to the OSERS Dear Colleague Letter, which is already part of the record.

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