M.L., a Minor C.D., His Parent S.L., His Parent v. Federal Way School District Washington Superintendent of Public Instruction

394 F.3d 634 M.L., a minor; C.D., his parent; S.L., his parent, Petitioners-Appellants, v. FEDERAL WAY SCHOOL DISTRICT; Washington Superintendent of Public Instruction, Respondents-Appellees. No. 02-35547. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 7, 2003. Filed November 5, 2004. Amended January 14, 2005. COPYRIGHT MATERIAL OMITTED James E. Lobsenz, Carney Badley Spellman, P.S., Seattle, WA, for the petitioners-appellants. Christopher L. Hirst, Preston Gates & Ellis LLP, Seattle, WA; James J. Dionne, Dionne & Rorick, Seattle, WA, for the respondents-appellees. Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-01-00899-JCC. Before ALARCÓN, GOULD, and CLIFTON, Circuit Judges. ALARCÓN, Senior Circuit Judge: 1 M.L., a minor, C.D., his mother, and S.L., his father, appeal from the order granting the motions for summary judgment filed by Appellees, the Federal Way School District ("FWSD") and the Washington Superintendent of Public Instruction. 1 They contend, inter alia, that the failure of the FWSD to include a regular education teacher on the…

M.L., a minor, C.D., his mother, and S.L., his father, appeal from the order granting the motions for summary judgment filed by Appellees, the Federal Way School District (“FWSD”) and the Washington Superintendent of Public Instruction. 1 They contend, inter alia, that the failure of the FWSD to include a regular education teacher on the team that prepared M.L.’s individualized education program (“IEP”) rendered the IEP invalid.

I am persuaded that we must reverse the order granting summary judgment because the failure of the FWSD to include a regular education teacher on the IEP team significantly deviated from the procedural requirements of the Individuals with Disabilities Education Act (“IDEA”) that at least one regular education teacher be included in the development of an IEP for a student with a disability pursuant to 20 U.S.C. § 1414 (d)(l)(B)(ii). This critical structural defect in the constitution of the IEP team precludes us from considering whether the IEP developed without the inclusion of at least one regular education teacher was reasonably calculated to enable M.L. to receive a free and appropriate public education (“FAPE”). I believe we must vacate the judgment…

concurring in part and concurring in the judgment:

I concur in the judgment and in Sections I, II-A, II-C, and III of Judge Alarcon’s opinion. I agree that 20 U.S.C § 1414(d)(l)(B)(ii) requires that at least one regular education teacher be included on an Individualized Education Program (“IEP”) team, and that the omission of a regular education teacher from M.L.’s IEP team was procedural error. However, I do not agree with the per se “structural defect” analysis adopted by Judge Alarcon in Section II-B. I write separately to make clear that our court’s procedural analysis under IDEA does not start and end with automatic reversal based on a theory of structural error. Instead, we must assess the school district’s error for harmlessness — in accord with our precedent in Target Range, Amanda J., and Shapiro — by considering whether the procedural error resulted in a loss of educational opportunity or significantly restricted parental par *652 ticipation in the IEP formation. IDEA procedural error may be held harmless in appropriate cases, and this may include cases involving a mistake in how the IEP team was constituted. Although Judge Clifton in dissent and I in concurrence agree…

dissenting:

I agree with my colleagues on many of the important issues in this case. In particular, I join in Sections I, II-A, II-C, 1 and III of Judge Alarcon’s opinion, and in Section I of Judge Gould’s opinion. In English, that means that I agree with' both Judge Alarcon and Judge Gould that the school district should have included a regular classroom teacher on the IEP team and that the failure to do so constituted a procedural violation of the IDEA. I also agree with my colleagues that the school district’s procedural error did not prevent M.L.’s parents from participating in the formation of the IEP. To the extent that M.L.’s parents enjoyed limited participation it was because the parents voluntarily removed themselves from the process. Finally, I, agree with Judge Gould, as expressed in Section I of his opinion, that a structural error analysis is not supported by our caselaw and has no place in the IDEA context. As Judge Gould correctly observes, a procedural violation constitutes a denial of a free and appropriate public education only when it results in a lost educational opportunity for the child or significantly restricts parental participation in formation of the…