NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

DEC 17 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

R. Z. C., by and through his parents David No. 17-35933 C. and Dianna C., D.C. No. 2:16-cv-01064-TSZ Plaintiff-Appellant,

v. MEMORANDUM*

NORTH SHORE SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted December 6, 2018 Seattle, Washington

Before: W. FLETCHER and BYBEE, Circuit Judges, and BURNS,** District Judge.

An Administrative Law Judge (“ALJ”) determined that a high school

student, R.C., was not entitled to an independent educational evaluation (“IEE”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Larry A. Burns, United States District Judge for the Southern District of California, sitting by designation. after the Northshore School District (“District”) completed an evaluation and

determined he was no longer eligible for special education services. The ALJ also

concluded that the District provided R.C. with a free appropriate public education

(“FAPE”). The district court affirmed.

“[W]hen reviewing state administrative decisions, courts must give ‘due

weight’ to judgments of education policy.” Ojai Unified Sch. Dist. v. Jackson, 4

F.3d 1467, 1472 (9th Cir. 1993) (internal quotation marks and citations omitted).

We review de novo whether a state provided a FAPE under the Individuals with

Disabilities Act (“IDEA”). Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038, 1042

(9th Cir. 2013).

1. The District’s evaluation was appropriate. “Parents of a student eligible

for special education have the right . . . to obtain an independent educational

evaluation of the student if the parent disagrees with the school district’s

evaluation,” subject to certain limitations. Wash. Admin. Code

§ 392-172A-05005(1)(a). When a parent requests an IEE, “the school district must

either: (i) Initiate a due process hearing within fifteen days to show that its

evaluation is appropriate; or (ii) Ensure that an independent educational evaluation

is provided at public expense without unnecessary delay.” Id.

§ 392-172A-05005(2)(c). R.C. argues the District’s evaluation was inappropriate

2 because (1) the evaluation report omitted information required by the Washington

Code; (2) the District’s classroom observation was inadequate; (3) the District

failed to provide appropriate written notice to R.C.’s parents; and (4) the District

improperly dismissed the results of several tests.

First, the report did not omit required information. It detailed the results of

R.C.’s cognitive, attention, social, emotional, medical, and physical evaluations,

and included general education teacher reports, parent input, past and current

grades, progress measurements, teacher observations and findings, a psychologist

report, specific assessment results, and an “age appropriate transition assessment.”

While it did not include a specific statement of whether R.C. was “achiev[ing]

adequately for [his] age,” id. § 392-172A-03080(1)(e)(i), this error was harmless.

See Ford ex rel. Ford v. Long Beach Unified Sch. Dist., 291 F.3d 1086, 1089 (9th

Cir. 2002). Second, the District’s classroom observation was appropriate because

the school psychologist attended R.C.’s English class for forty minutes and

observed him interacting with other students, typing his assignment on his

computer, and working “quietly and independently.” This observation met the

Washington Code’s requirement that the District observe his “academic

performance.” Wash. Admin. Code § 392-172A-03075(2)(b). Third, the District

provided R.C.’s parents with proper written notice, including “[a] description of

3 other options that the IEP team considered and the reasons why those options were

rejected” and “[a] description of other factors that are relevant to the agency’s

proposal or refusal.” Id. § 392-172A-05010(2)(f)–(g). And fourth, the record

established that the District considered all necessary tests.

2. The district court properly concluded that the District provided R.C. with

a FAPE. See 20 U.S.C. § 1412(a)(1). To determine whether an agency denied a

student a FAPE, we determine (1) whether “the State complied with the procedures

set forth in [IDEA]” and (2) whether the IEP was “reasonably calculated to enable

the child to receive educational benefits.” Bd. of Educ. of Hendrick Hudson Dist.,

Westchester Cty. v. Rowley, 458 U.S. 176, 206–07 (1982). “A procedural violation

denies a free appropriate public education if it results in the loss of an educational

opportunity, seriously infringes the parents’ opportunity to participate in the IEP

formulation process or causes a deprivation of educational benefits.” J.L. v.

Mercer Island Sch. Dist., 592 F.3d 938, 953 (9th Cir. 2010). R.C. argues that the

evaluation and written notice infringed his parents’ opportunity to participate

because the notice and consent form did not state that the District rejected his

independent psychologist’s conclusion that he had a specific learning disability.

At the time the District issued the notice, however, it had not rejected the

psychologist’s conclusions; rather, it requested the reevaluation specifically to

4 “review [the psychologist’s] assessment.” R.C. also asserts that the written notice

did not explain the District’s rejection of certain tests; however, the District

considered these tests and concluded they did not weigh in favor of finding a

specific learning disability. See R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist.,

496 F.3d 932, 942–43 (9th Cir. 2007) (deferring to agency’s findings regarding

student’s capabilities). In addition, removing R.C. from special education did not

result in a lost educational opportunity because R.C. was not eligible for special

education services. See id. at 942.

R.C. did not meet the criteria necessary for establishing the existence of a

specific learning disability. Here, his “writing disability [was] limited to the

underlying basics of handwriting and conventions,” but both his independent

psychologist and English teacher found he was more than capable at expressing

stories and conveying information through written expression. See N.B. v.

Hellgate Elementary Sch. Dist., ex rel. Bd. of Directors, Missoula Cty., 541 F.3d

1202, 1212 (9th Cir. 2008) (“We conclude that it was reasonable for the hearing

officer to rely on the testimony of [the school district’s] witnesses because they had

observed [the student’s] school performance.”). R.C. received average grades in

his classes and demonstrated sufficient abilities in written expression; therefore, we

defer to the ALJ’s conclusion that he did not meet the criteria for a specific

5 learning disability. See Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1108

(9th Cir. 2007).

Lastly, R.C.’s educational plan accommodated his disability. “An

‘appropriate’ public education does not mean the absolutely best or

‘potential-maximizing’ education for the individual child.” Gregory K. v.

Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987) (quoting Rowley, 458

U.S. at 197 n.21). “Because Congress intended states to have the primary

responsibility of formulating each individual child’s education, we must defer to

their ‘specialized knowledge and experience’ by giving ‘due weight’ to the

decisions of the states’ administrative bodies.” Amanda J. ex rel. Annette J. v.

Clark Cty. Sch. Dist., 267 F.3d 877, 888 (9th Cir. 2001) (quoting Rowley, 458 U.S.

at 206–08). The District “offer[ed] a cogent and responsive explanation” for its

decision, which “shows the IEP is reasonably calculated to enable [R.C.] 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).

AFFIRMED.

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