FILED

NOT FOR PUBLICATION

MAR 14 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. M. E., as guardian on behalf of minor No. 21-35538

W.P.B.,

D.C. No. 2:19-cv-02019-RAJ-BAT Plaintiff-Appellant,

v. MEMORANDUM*

SHORELINE SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted February 13, 2023 Seattle, Washington

Before: W. FLETCHER, PAEZ, and VANDYKE, Circuit Judges. Concurrence by Judge VANDYKE.

C.M.E. appeals from the district court’s judgment affirming the state

administrative law judge’s (“ALJ”) order granting summary judgment to Shoreline

School District (the “School District”) and denying her motion for summary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. judgment. C.M.E.’s son, W.P.B., was enrolled in the Shoreline School District

until 2019. C.M.E. alleges that her son was denied his right to a free appropriate

public education under the Individuals with Disabilities Education Act (“IDEA”).

She contends that the School District proposed an initial evaluation that included

unnecessary and potentially harmful requirements, specifically an interview and an

age appropriate transition assessment.

In 2019, C.M.E. requested that the School District evaluate her son, W.P.B.,

for special education services under the IDEA. The School District sent C.M.E. a

consent form describing the proposed initial evaluation of W.P.B. The proposed

evaluation included a review of existing data, an academic evaluation, an age

appropriate transition assessment, and an interview. C.M.E. sent back the consent

form with handwritten modifications, indicating that she did not consent to the

initial evaluation because she objected to both the age appropriate transition

assessment and the interview.

In response, the School District initiated a due process hearing seeking to

override C.M.E.’s refusal to consent to the proposed initial evaluation. The ALJ

found the School District’s proposed initial evaluation to be reasonable and

ordered an override of C.M.E’s refusal to consent. The district court affirmed the

ALJ’s decision.

2 We review the “district court’s factual findings for clear error, even when

they are based on the administrative record.” Anchorage Sch. Dist. v. M.P., 689

F.3d 1047, 1053 (9th Cir. 2012) (citing J.G. v. Douglas Cnty. Sch. Dist., 552 F.3d

786, 793 (9th Cir. 2008)). “Questions of law are reviewed de novo, as are mixed

questions of law and fact unless the mixed question is primarily factual.” Id.

(citing N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1207 (9th Cir.

2008)).

The School District reasonably included both the age appropriate transition

assessment and the interview in its proposed initial evaluation. See 34 C.F.R. §

300.300(a)(1)(iii) (“The public agency must make reasonable efforts to obtain the

informed consent from the parent for an initial evaluation to determine whether the

child is a child with a disability.”). The School District was legally required to

include an age appropriate transition assessment because W.P.B. was over the age

of sixteen. After a student turns sixteen, the IDEA requires that his Individualized

Education Program (“IEP”) include “appropriate measurable postsecondary goals

based upon age appropriate transition assessments.” 20 U.S.C.

§ 1414(d)(1)(A)(i)(VIII). The School District needed to use an age appropriate

transition assessment to help develop W.P.B.’s future IEPs if he was found eligible

for special education services.

3 The School District also reasonably believed that interviewing W.P.B. “with

questions about his interests, strengths, preferences, and needs” was a reasonable

manner of determining his postsecondary goals. C.M.E. objected to the interview

because W.P.B. had a traumatic experience with a prior interview. In response, the

School District asked to review “medical records containing a diagnosis or other

information” which would affect W.P.B.’s ability to participate in the interview

and the transition assessment. The School District offered to take this “information

into consideration to ensure the assessment is done in a manner that is comfortable

for [W.P.B.] and results in valid and reliable data.” Parent did not respond to the

School District’s offer. Accordingly, the ALJ did not err in ordering a consent

override to allow the School District to proceed with its proposed initial evaluation.

AFFIRMED.

4

FILED

C.M.E. v. Shoreline School District, No. 21-35538 MAR 14 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

VANDYKE, J., concurring in the judgment:

I agree with the result reached by the majority affirming the district court’s

denial of C.M.E.’s summary judgment motion. But I would decide this case solely

on mootness grounds. The only issue presented in this proceeding—whether the

School District could override C.M.E.’s objection to a transition assessment of her

son W.P.B.—is now moot. W.P.B. has aged out of eligibility for special education

services, and so the School District no longer has any reason to conduct the

assessment.

C.M.E. argues the case isn’t moot because W.P.B. could still be eligible for a

compensatory education. But compensatory education would only be available if

W.P.B. was denied a free appropriate public education (“FAPE”). And whether

W.P.B. was denied a FAPE was never raised in this proceeding. That issue was

litigated by the parties in a separate proceeding, and the ALJ chose not to consolidate

the two proceedings. Here, the School District only sought an order overriding

C.M.E.’s objection to the assessment.

Assuming arguendo that C.M.E. might have attempted to challenge the denial

of a FAPE in this proceeding, she never did so. At the due process hearing, C.M.E.

did not raise any claims that could be remedied by compensatory educational

services. Our court must only decide the questions before it, not theoretical

1 questions that have not been raised. See Alvarez v. Smith, 558 U.S. 87, 93 (2009)

(explaining where there “is no longer … any actual controversy about the plaintiffs’

particular legal rights,” the dispute becomes “abstracted” and “falls outside the scope

of the constitutional words ‘Cases’ and ‘Controversies’”).

If I were to reach the merits, I would affirm on the basis that C.M.E. rejected

not just the interview requested by the School District, but any transition assessment

at all—with or without an interview. Whether or not C.M.E. could properly reject

the interview was never presented as a standalone issue. The School District made

at least some initial attempts to accommodate C.M.E.’s concerns about the interview

by asking to consult W.P.B.’s psychologist and arrange for an outside agency to

conduct the assessment. C.M.E. flatly refused and did not attempt to reach any

agreement with the School District on how the school might obtain a transition

assessment agreeable to everyone. Because IDEA clearly requires a transition

assessment, 20 U.S.C. § 1414(b)(2)(A), and C.M.E.’s rejection of the assessment

prevented the process from moving past the initial review phase, the School District

was not required to provide a FAPE.

In short, C.M.E. never agreed to a transition assessment of any sort. The facts

here are not such that we can separate C.M.E.’s refusal of the assessment (which is

required by IDEA) from C.M.E.’s refusal of an interview (which may not be).

2 Because the interview question never ripened for separate and independent

evaluation, I would not reach that question.

3