1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SAN JOSE UNIFIED SCHOOL Case No. 21-cv-04001-BLF

DISTRICT,

9 Plaintiff, ORDER DENYING DISTRICT’S 10 MOTION FOR SUMMARY JUDGMENT; v. DENYING H.T.’S CROSS-MOTION FOR 11 SUMMARY JUDGMENT; AND H.T., a minor, by and through his AFFIRMING ALJ’S DECISION 12 Guardian ad Litem, T.A., [Re: ECF 31, 32] 13 Defendant. _________________________________ 14 H.T., a minor, by and through his 15 Guardian ad Litem, T.A., 16 Counter-Claimant, 17 v. 18 SAN JOSE UNIFIED SCHOOL

DISTRICT,

19 Counter-Defendant. 20 21 This action under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 22 §1400 et seq., concerns the manner in which the San Jose Unified School District (“the District” 23 or “San Jose”) conducted a functional behavior assessment (“FBA”) of minor student H.T. The 24 District requested a due process hearing before the State of California’s Office of Administrative 25 Hearings (“OAH”) to determine whether the District appropriately conducted the FBA. H.T. 26 requested a due process hearing before the OAH to determine whether the District denied H.T. a 27 free appropriate public education (“FAPE”) by failing to appropriately conduct the FBA and by 1 The administrative cases were consolidated, and a due process hearing was conducted by 2 Administrative Law Judge Robert G. Martin (“the ALJ”). The ALJ found against the District on 3 its issue, determining that the District did not appropriately conduct the FBA and that as a result 4 H.T. was entitled to an independent educational evaluation (“IEE”) at the District’s expense. The 5 ALJ also found against H.T. on his two issues, determining that H.T. had not established that he 6 was denied a FAPE as a result of the District’s failure to appropriately conduct the FBA and 7 failure to provide all requested education records. 8 The District filed this action to obtain review of the ALJ’s adverse determination on its 9 issue, and H.T. filed a counterclaim to obtain review of the ALJ’s adverse determination on his 10 two issues. The parties have filed cross-motions for summary judgment that have been fully 11 briefed and argued to the Court at a hearing held September 15, 2022. 12 Both motions for summary judgment are DENIED and the ALJ’s decision is AFFIRMED. 13 I. BACKGROUND 14 H.T. was eleven years old and attending a sixth-grade general education class in the 15 District at the time of the administrative hearing. Administrative R. (“AR”) 536. He was eligible 16 for special education services as a student with autism and speech or language impairment, and he 17 had an individualized education program (“IEP”) in place. AR 536, 1003. 18 Parent’s Request for FBA 19 On October 10, 2019, H.T.’s father (“Parent”) sent an email to the District’s Director of 20 Special Education, Seth Reddy (“Reddy”), requesting an FBA of H.T. AR 265-67. In the email, 21 Parent stated that previous assessments of H.T. in 2016 and 2018 had identified “behavior that has 22 been interfering with his ability to learn.” Id. Parent listed thirty-six specific concerns. Id. Parent 23 advised, “I expect to be included in the functional assessment of behavior and as active participant 24 on the team developing the behavior intervention plan.” Id. 25 An assessment plan was prepared by a District school psychologist, Laurie Whittemore, 26 indicating that a behavioral specialist would be appointed to conduct the FBA. AR 269-70. 27 Parent signed the assessment plan on October 25, 2019. Id. The assessment plan provided space 1 next to the following language: “I would like the following assessment information to be 2 considered by the IEP team: ______________.” Id. However, Parent left the box unchecked and 3 the space blank. Id. 4 Draft FBA dated December 18, 2019 5 In early December 2019, the District assigned board-certified behavior analyst Jennifer 6 Harmon (“Harmon”) to conduct an FBA of H.T. AR 549. Harmon testified at the administrative 7 hearing that an FBA typically involves use of three assessment tools – observation of the student, 8 interviews with those who interact with the student, and review of records. AR 937. Harmon 9 used those assessment tools when she conducted the FBA of H.T. AR 940-46. She observed H.T. 10 at school and interviewed his general education teacher, Joseph Griggs, his physical education 11 teacher, Mike Vickers, and his special education teacher, Heidi Grillo. Id. Harmon also reviewed 12 H.T.’s education records, including the 2016 and 2018 assessments referenced by Parent in his 13 October 2019 email to Reddy. AR 941. 14 For reasons not apparent from the record, Harmon was not given a copy of Parent’s 15 October 2019 email when she was asked to conduct the FBA, nor was she informed that Parent 16 had expressed any specific concerns. AR 979. As part of her normal practice when conducting an 17 FBA, Harmon called Parent to solicit his input. AR 961-62. Harmon placed that call sometime 18 between December 5, 2019 and December 11, 2019. Id. Parent did not answer the telephone on 19 that occasion, so Harmon left a voicemail identifying herself and explaining the purpose of her 20 call. Id. Parent did not call her back. Id. 21 On December 11, 2019, Parent sent Reddy an email advising that someone named Jennifer 22 had called about H.T.’s assessment. AR 272. Parent stated follows: “I don’t know who she’s 23 [sic] and I prefer not to discuss my son’s confidential records with her at the moment. If 24 additional information is required, please let me know.” Id. Reddy replied on the same date, 25 informing Parent that Jennifer Harmon was part of H.T.’s IEP team to conduct the FBA. Id. 26 Reddy advised Parent that “[a] critical part of the FBA is talking to parents about any behaviors 27 they are seeing in home (if any) and what they are doing that is successful/not successful.” Id. 1 However, your input would be greatly valued. Let me know if you have any questions.” Id. 2 Within twenty-four hours of receiving Parent’s email, Reddy directed Harmon not to 3 attempt any further contact with Parent. AR 1066-67. Reddy testified that he did not copy 4 Harmon on his emails with Parent because Parent had a history of filing complaints against the 5 District, and that he did not want to inflame Parent. AR 1255. Harmon understood from Reddy’s 6 direction not to contact Parent that Parent did not want to participate in the FBA. AR 1068. 7 Harmon went forward without input from Parent and completed a draft FBA dated December 18, 8 2019. AR 387-95. The draft FBA indicated that “Parent declined participating for the parent 9 interview for this assessment.” AR 388. 10 Parent’s Response to Draft FBA 11 H.T.’s special education teacher, Heidi Grillo, emailed a copy of the draft FBA to Parent 12 on December 20, 2019, along with a notice that an IEP meeting had been scheduled for January 9, 13 2020. AR 384-95. Reddy sent a follow-up email asking if the date for the IEP meeting would 14 work for Parent. AR 285-86. Parent responded to Reddy by email dated December 24, 2019, 15 which stated in its entirety: “[H.T.] will be represented by an attorney and I’ll have to consult his 16 attorney before I can agree to the proposed date/time. Happy Holidays.” AR 285. 17 On January 31, 2020, Parent sent an email to District Superintendent Nancy Albarran 18 (“Albarran”), which was copied to Reddy, expressing “complete disagreement” with the draft 19 FBA. AR 407. Parent attached a pdf document titled “Failed FBA,” which was a three-page letter 20 to Albarran detailing Parent’s criticisms of the draft FBA. AR 279-83, 402. Parent complained 21 that the assessor had failed to consider the concerns outlined in Parent’s October 2019 email to 22 Reddy. AR 282. Parent also disputed the representation in the draft FBA that Parent had declined 23 to participate, asserting that his October 2019 email to Reddy “was sufficient to fulfill the Parent’s 24 participation.” Id. 25 Reddy replied to Parent’s January 31, 2020 email on February 10, 2020, expressing the 26 District’s view that the FBA was appropriate and that when Harmon attempted to contact Parent, 27 Parent was unwilling to participate. AR 406. However, Reddy indicated that “in the spirit of 1 and to update the FBA if appropriate. Id. Reddy also stated that the District still wished to 2 schedule an IEP meeting to discuss the FBA and update H.T.’s IEP. 3 Parent replied on February 10, 2020, disputing the notion that he was unwilling to 4 participate in the FBA as “totally inaccurate and deliberately misleading.” AR 405. Parent stated 5 that he was glad the District was willing to reconsider its decision and address his concerns, and 6 indicated that he would be willing to meet with the IEP team after a revised FBA was provided. 7 Id. 8 Revised FBA dated December 18, 2019 9 Reddy provided Harmon with Parent’s October 2019 email so that she could review 10 Parent’s specific concerns. AR 978-80. Harmon testified that Parent’s concerns listed in that 11 email were identified in H.T.’s 2016 and 2018 assessments, which she had reviewed before 12 preparing the draft FBA. Id. Accordingly, Harmon made only minor modifications to the draft 13 FBA by adding some details to Section 6, Health Records, to make clear that she had reviewed the 14 2016 and 2018 assessments. AR 408-17, 1005. Harmon did not change the December 18, 2019 15 “Date of Report” on the revised FBA. AR 408. 16 Reddy emailed Parent the revised FBA on February 14, 2020. AR 277. Parent responded 17 by email on February 15, 2020, stating that the revised FBA was identical to the original draft 18 FBA. AR 276. Reddy replied on February 25, 2020, explaining that the two documents were not 19 identical, as Section 6 of the original draft FBA had been revised to reflect Harmon’s review of the 20 2016 and 2018 assessments. AR 275-76. Reddy also suggested that it was “imperative” to have 21 an IEP meeting to discuss the FBA and H.T.’s needs. Id. Parent rejected that suggestion by email 22 dated February 25, 2020, stating that the District had failed to conduct an appropriate FBA, that 23 the IEP team was not equipped to deal with legal issues, and that Reddy would have an 24 opportunity to meet H.T.’s legal team in the future. AR 275. 25 Parent’s Request for H.T.’s Education Records 26 On February 26, 2020, Parent emailed Albarran a request for H.T.’s education records 27 relating to his May 2018 Triennial assessment and December 2019 FBA. AR 288. Parent and 1 been provided and Parent insisting that they had not. AR 292-95. 2 Reddy later became aware that Harmon had kept notes on her laptop that were not 3 produced to Parent. AR 1329. Harmon testified that it was her practice to keep notes of her 4 observations and interviews in a Word file on her school-issued laptop when she was in the midst 5 of conducting an FBA. AR 964-65. Eventually, she cleaned up those notes in the Word file 6 before copying and pasting them into the FBA. AR 965. Harmon did not share her raw notes with 7 anyone. AR 998. Harmon left her employment at the District in June 2020, and she turned in her 8 school-issued laptop at that time. AR 562, 998. Reddy testified that shortly thereafter, he 9 discovered that Harmon had kept notes on her laptop which were destroyed when the laptop was 10 wiped by school technology personnel. AR 1329. 11 April 2020 IEP Meeting and May 2020 Parent Request for IEE 12 The District scheduled an IEP meeting for April 30, 2020. AR 1331. Parent was given 13 notice of the IEP meeting but did not attend. AR 1332. Reddy made the decision to go forward 14 with the IEP meeting in Parent’s absence. Id. 15 On May 8, 2020, Parent requested an IEE at public expense. AR 554. The District denied 16 Parent’s request on May 18, 2020. Id. 17 Administrative Proceedings 18 On June 2, 2020, the District filed a request for an administrative due process hearing. AR 19 533, 554. H.T. also requested a due process hearing. AR 533. The District asserted a single 20 issue, whether the District appropriately conducted the FBA (“San Jose’s Issue”). AR 534 H.T. 21 asserted two issues – whether the District denied him a FAPE by failing to appropriately conduct 22 the FBA (“Student’s Issue 1”), and whether the District denied him a FAPE by failing to provide 23 his father with all requested education records relating to the FBA (“Student’s Issue 2”). The two 24 administrative cases were consolidated. AR 522. 25 The ALJ conducted a four-day hearing via videoconference between December 8, 2020 26 and December 11, 2020. Id. The ALJ heard testimony from several witnesses, including Harmon, 27 Parent, Reddy, and H.T.’s teachers, among others. AR 626-30. The ALJ also admitted numerous 1 IEP-related documents. AR 255-57. The ALJ asked the witnesses questions to clarify his 2 understanding of events, for example, clarifying that Harmon was not given Parent’s October 2019 3 email listing his concerns prior to completion of the original draft of the FBA. AR 174. 4 The ALJ issued a lengthy written decision dated February 25, 2021. AR 533. On San 5 Jose’s Issue, whether the District appropriately conducted the FBA, the ALJ determined that the 6 District “did not conduct its FBA of Student appropriately, because it unreasonably failed to 7 obtain Parent’s input in conducting the FBA.” AR 554. The ALJ determined that “Student 8 prevailed on San Jose’s Issue.” AR 563. The ALJ ordered the District to “fund an independent 9 functional behavior assessment evaluation” of H.T. AR 564. 10 On Student’s Issue 1, whether the District denied H.T. a FAPE by failing to appropriately 11 conduct the FBA, the ALJ found that although the District’s FBA was not appropriate, H.T. failed 12 to prove that this procedural violation denied him a FAPE. AR 556-58. The ALJ determined that 13 “San Jose prevailed on Student’s Issue 1.” AR 564. 14 On Student’s Issue 2, whether the District denied H.T. a FAPE by failing to provide all 15 requested education records, the ALJ found that although the District failed to provide all records, 16 H.T. failed to prove that this procedural violation denied him a FAPE. AR 558-63. The ALJ 17 determined that “San Jose prevailed on Student’s Issue 2.” AR 564. 18 Present Action 19 The District filed this action in May 2021. Compl., ECF 1. The District’s complaint 20 contains a single claim that seeks review of the ALJ’s adverse determination on its issue. Id. H.T. 21 filed a counterclaim asserting two claims, one seeking review of the ALJ’s adverse determination 22 on H.T.’s two issues and the other seeking recovery of attorneys’ fees and costs as the prevailing 23 party. Answer and Counterclaim, ECF 10. 24 The parties have filed cross-motions for summary judgment which were argued to the 25 Court at a hearing held on September 15, 2022. Min. Entry, ECF 39. 26 II. LEGAL STANDARD 27 Traditional standards for summary judgment do not apply in cases brought under the 1 “Though the parties may call the procedure a ‘motion for summary judgment’ in order to obtain a 2 calendar date from the district court’s case management clerk, the procedure is in substance an 3 appeal from an administrative determination, not a summary judgment.” Id. Consequently, while 4 the existence of disputed facts would preclude summary judgment under the usual application of 5 Federal Rule of Civil Procedure 56, the district court may resolve conflicting evidence and make 6 factual determinations at the summary judgment stage in IDEA cases. See id. at 891. 7 When evaluating an appeal of an ALJ’s decision in an IDEA case, the district court “(i) 8 shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at 9 the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall 10 grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). “Thus, 11 judicial review in IDEA cases differs substantially from judicial review of other agency actions, in 12 which courts generally are confined to the administrative record and are held to a highly 13 deferential standard of review.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 14 1993). While the district court must give “due weight” to an ALJ’s decision in an IDEA case, the 15 district court has discretion to determine the correct level of deference to be given. See 16 Wartenberg, 59 F.3d at 891. 17 The party challenging the administrative determination “bears the burden of demonstrating 18 that the ALJ’s decision was incorrect.” Crofts v. Issaquah Sch. Dist. No. 411, 22 F.4th 1048, 1053 19 (9th Cir. 2022). 20 III. DISCUSSION 21 The District moves for summary judgment on its claim that San Jose’s Issue was wrongly 22 decided by the ALJ. H.T. moves for summary judgment on his counterclaim that Student’s Issue 23 1 and Student Issue 2 were wrongly decided by the ALJ. The Court addresses the motions in turn, 24 below. Before doing so, however, the Court discusses the level of deference due to the ALJ’s 25 decision, and the District’s objection to H.T.’s references to an IEE that occurred after the 26 administrative proceedings were completed. 27 A. Level of Deference 1 within the sound discretion of the district court. See Wartenberg, 59 F.3d at 891. The Ninth 2 Circuit has offered the following guidance, however: “When exercising its discretion to determine 3 what weight to give the hearing officer’s findings, one criterion we have found useful is to 4 examine the thoroughness of those findings.” Id. “The amount of deference accorded the hearing 5 officer’s findings increases where they are ‘thorough and careful.’” Id. Thus, in Ojai, the Ninth 6 Circuit determined that the administrative decision was entitled to “substantial weight” where 7 “[t]he hearing officer’s decision evince[d] his careful, impartial consideration of all the evidence 8 and demonstrate[d] his sensitivity to the complexity of the issues presented.” Ojai, 4 F.3d at 1476. 9 The Ninth Circuit has offered similar guidance in other cases, explaining in R.B. that “[w]e treat a 10 hearing officer’s findings as ‘thorough and careful’ when the officer participates in the questioning 11 of witnesses and writes a decision ‘contain[ing] a complete factual background as well as a 12 discrete analysis supporting the ultimate conclusions.’” R.B., ex rel. F.B.v. Napa Valley Unified 13 Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007). 14 The ALJ’s careful 33-page decision identified the correct legal framework for each issue 15 addressed, accurately summarized the evidence, and explained in detail the ALJ’s reasoning. AR 16 533-65. The ALJ found for H.T. on some points, most notably in concluding that the District did 17 not appropriately conduct the FBA and that H.T. was entitled to an IEE at public expense. AR 18 554-56. However, the ALJ also found that H.T. did not prove that the District’s failure to conduct 19 an appropriate FBA denied him a FAPE. AR 558. The ALJ’s express recognition of the 20 importance of parental participation in a child’s assessment, and simultaneous acknowledgement 21 that not every procedural violation results in the denial of a FAPE, demonstrated the ALJ’s 22 “sensitivity to the complexity of the issues presented.” Ojai, 4 F.3d at 1476. The ALJ was 23 meticulous in identifying who had the burden of proof on each issue, and in evaluating the 24 evidence relevant to that issue. AR 547-63. The ALJ questioned witnesses to clarify his 25 understanding of events, as when he confirmed with Harmon that she was not given Parent’s 26 October 2019 email prior to completion of the original draft FBA. AR 174. 27 The ALJ’s decision differs markedly from administrative findings in other cases that were 1 through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1194 n.1 (9th Cir. 2017) 2 (discussing Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105 (9th Cir. 2016)). For the 3 foregoing reasons, this Court in its discretion finds it appropriate to give substantial deference to 4 the ALJ’s decision here. 5 B. H.T.’s Reference to IEE that Occurred after the Administrative Proceedings 6 As noted above, the ALJ determined Student’s Issue 1 adversely to H.T., finding that 7 although the District’s FBA was not appropriate, H.T. failed to prove that this procedural violation 8 denied him a FAPE. AR 556-58. The ALJ reasoned that H.T. had not proved that Parent would 9 have provided Harmon any material information beyond the concerns listed in Parent’s October 10 2019 email. AR 558. In other words, the ALJ determined that Harmon’s FBA would not have 11 been different even had she obtained Parent’s input. Id. 12 H.T. concedes that he cannot show that the outcome of the December 2019 FBA would 13 have been different had Parent participated. H.T.’s Mot. at 19, ECF 32. However, H.T. argues 14 that the outcome of the FBA might have been different, asserting that an IEE funded by the 15 District and completed in November 2021 recommended several interventions not encompassed 16 by the District’s FBA. Id. H.T. asserts that the November 2021 IEE recommended a Behavior 17 Intervention Plan (“BIP”) and several goals targeting identified maladaptive behaviors and 18 additional assessments. Id. at 18-19. 19 The District objects to H.T.’s reference to the November 2021 IEE. The District 20 acknowledges that the Court “shall hear additional evidence at the request of a party.” 20 U.S.C. § 21 1415(i)(2)(C). However, the District points out that H.T. has not actually presented any evidence 22 that there was a November 2021 IEE or what such IEE recommended. According to the District, 23 H.T. “grossly mischaracterizes the findings of the IEE.” District’s Reply at 8 n.4, ECF 36. The 24 District argues that in any event, information about an IEE that occurred after the administrative 25 proceedings would not be relevant to review of those proceedings. See Adams v. State of Oregon, 26 195 F.3d 1141, 1149 (9th Cir. 1999) (“We do not judge an IFSP in hindsight.”). 27 The District’s argument that H.T. has not actually submitted any evidence of the 1 considered under § 1415(i)(2)(C), H.T. has not submitted any such evidence. The Court cannot 2 rely on H.T.’s bare representation regarding the existence and result of the IEE, particularly in 3 light of the District’s assertion that H.T. mischaracterizes the IEE. Additionally, the two-year 4 lapse of time between the FBA at issue here and the IEE would certainly diminish or eliminate any 5 relevance the later report would have in the present case. Accordingly, the Court has not 6 considered H.T.’s arguments based on the November 2021 IEE. 7 C. District’s Motion 8 Having resolved those preliminary issues, the Court takes up the District’s motion for 9 summary judgment on its claim that San Jose’s Issue was wrongly decided by the ALJ. Again, 10 San Jose’s Issue at the administrative level was whether the District appropriately conducted 11 H.T.’s FBA. The ALJ found that the District “did not conduct its FBA of Student appropriately, 12 because it unreasonably failed to obtain Parent’s input in conducting the FBA.” AR 554. The 13 District bears the burden of demonstrating that the ALJ’s decision was incorrect. See Crofts, 22 14 F.4th at 1053. 15 The District challenges the ALJ’s decision on two grounds. First, the District argues that 16 the ALJ erred by failing to properly analyze and consider the parental input obtained by District in 17 conducting its FBA, especially given the lack of cooperation by Parent in the FBA process. 18 Second, the District argues that the ALJ failed to properly analyze and consider the alleged failure 19 to obtain parental input for harmless error. H.T. argues that the first of these grounds should not 20 be considered by the Court because it was not raised at the administrative level and because it is 21 akin to an inappropriate affirmative defense. H.T. also argues that the ALJ correctly determined 22 that the District unreasonably failed to obtain Parent’s input, and that the ALJ was not required to 23 engage in a harmless error analysis once he determined that the District failed to prove that its 24 FBA was appropriate. 25 1. Asserted Failure to Consider that Parental Input was Obtained 26 A parent has the right to request that the school district conduct a reassessment of a child 27 who has already been determined to be eligible for special education. See 20 U.S.C. § 1 assessment tools and strategies to gather relevant functional, developmental, and academic 2 information, including information provided by the parent.” 20 U.S.C. § 1414(b)(2)(A) (emphasis 3 added); see also Cal. Educ. Code § 56320(b). If the parent disagrees with an assessment obtained 4 by the school district, the parent has the right to obtain, at public expense, an IEE of the student 5 from qualified specialists. See 34 C.F.R. § 300.502(b); Cal. Educ. Code § 56329(b). The school 6 district may initiate a due process hearing to show that its assessment is “appropriate.” 34 C.F.R. 7 § 300.502(b); Cal. Educ. Code § 56329(c). If the due process hearing results in a determination 8 that the school district’s assessment is appropriate, the parent may still obtain an IEE, but not at 9 public expense. See 34 C.F.R. § 300.502(b); Cal. Educ. Code § 56329(c). If the due process 10 hearing results in a determination that the school district’s assessment is not appropriate, it must 11 provide the IEE. See 34 C.F.R. § 300.502(b); Cal. Educ. Code § 56329(c). 12 In determining whether the District’s FBA was appropriate, the ALJ considered whether 13 the District satisfied its statutory obligation to obtain parental input. AR 554. In considering that 14 issue, the ALJ recognized the extraordinary importance that the IDEA, its implementing 15 regulations, and case law place on parental involvement in the special education process. AR 554- 16 55. The ALJ stated that parental involvement is so important that the District was obligated to use 17 reasonable efforts to obtain Parent’s input even if the District perceived Parent as difficult. AR 18 555. The ALJ recognized, however, that there are some circumstances in which a parent’s failure 19 to cooperate with a school district will excuse the district’s procedural violations of statutory 20 requirements. Id. After considering testimony from Parent, Reddy, Harmon, and others, and 21 reviewing documentary evidence including the numerous emails exchanged by Parent and District 22 personnel during the FBA process, the ALJ determined that in this case Parent was not so 23 uncooperative as to excuse the District’s failure to obtain his input in the FBA. AR 555. 24 This Court agrees with the ALJ’s summary of the applicable legal framework. The Ninth 25 Circuit has held in numerous cases that parental involvement in the special education process is of 26 paramount importance, and that duties imposed on state and local education agencies are not 27 conditioned on parental cooperation. See, e.g., Crofts, 22 F.4th at 1054 (recognizing importance 1 1045 (9th Cir. 2013) (“We have consistently held that an agency cannot eschew its affirmative 2 duties under the IDEA by blaming the parents.”); Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 3 1051 (9th Cir. 2012) (holding that in the special education context duties imposed on state and 4 local education agencies are not conditioned on parental cooperation). In certain circumstances, 5 however, a parent’s lack of cooperation can become so problematic as to excuse a district’s 6 procedural violations of the IDEA. See Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 7 1115, 1133 (9th Cir. 2003) (“We hold that where the school district has repeatedly provided the 8 parent with the opportunity to participate meaningfully in the IEP process, the school district has 9 not violated its obligations. . . .”), superseded by statute on other grounds as stated in G.M. ex rel. 10 Marchese v. Dry Creek Joint Elementary Sch. Dist., 595 F. Appx. 698 (9th Cir. 2014); E.P. v. San 11 Ramon Valley Unified Sch. Dist., No. C05-01390 MJJ, 2007 WL 1795747, at *11 (N.D. Cal. June 12 21, 2007) (parents’ lack of cooperation in scheduling IEP meeting excused parental attendance at 13 meeting). 14 None of the cases cited by the District suggest that a different legal framework applies. 15 The District simply disagrees with the ALJ’s evaluation of the facts of this case under that 16 framework. Specifically, the District argues that the ALJ did not adequately consider the input the 17 District obtained from Parent – the October 2019 email list of concerns – in light of Parent’s lack 18 of cooperation. 19 Before addressing the District’s argument, the Court takes up H.T.’s contentions that the 20 argument is precluded because it was not presented to the ALJ during the administrative hearing, 21 and that the District’s argument that Parent was uncooperative is akin to an improper assertion of 22 an affirmative defense. H.T.’s contentions are without merit. The degree of Parent’s cooperation 23 in the FBA was a focal point of the administrative hearing and the ALJ’s decision. Moreover, 24 because the District was the moving party with respect to San Jose’s Issue, its arguments cannot 25 be characterized as an affirmative defense. In the Court’s view, the District’s current arguments 26 are well within the scope of the District’s request for review of the ALJ’s decision. 27 The ALJ’s decision is entitled to substantial deference for the reasons discussed above. 1 finds that the District gave up on obtaining Parent’s input too easily. Harmon made only one 2 telephone call to Parent, leaving a voicemail for Parent to call her back. AR 961-62. When Parent 3 responded by email to Reddy, advising that he did not wish to speak to Harmon “at the moment,” 4 he also asked Reddy to let him know “[i]f additional information is required.” AR 272. Reddy 5 took that email to mean that Parent did not wish to be involved further in the FBA and 6 immediately instructed Harmon not to contact Parent again. AR 1066-67. It appears that Reddy 7 may have been gun-shy due to Parent’s prior complaints against the District. AR 1255. This 8 Court finds as a factual matter that Reddy’s conduct was unreasonable, as nothing in Parent’s 9 communications to that point suggested a categorical unwillingness to participate in the FBA. 10 Reddy never rescinded his direction to Harmon not to contact Parent, and in fact Harmon did not 11 attempt to do so after leaving him a single voicemail. The Court finds unpersuasive the District’s 12 suggestion that Parent could have reached out to the District to participate in the FBA. The 13 statutory obligation to involve Parent was on the District, unless and until Parent’s conduct 14 became so egregious as to excuse that obligation. The Court agrees with the ALJ that Parent’s 15 conduct did not cross that line. 16 The Court also finds unpersuasive the District’s assertion that it satisfied its statutory 17 obligation to obtain Parent’s input, based on Parent’s listing of his concerns in his October 2019 18 email in which he made the initial request for an FBA. Parent’s October 2019 email started the 19 FBA process. It was not shared with Harmon until after she completed her draft FBA. Reddy 20 clearly recognized that Parent’s further involvement would be valued, as stated in his email to 21 Parent dated December 11, 2019. AR 272. The District points to a statement in the letter Parent 22 emailed to Superintendent Albarran on January 31, 2020 as evidence that Parent’s listing of his 23 concerns when he initiated the FBA was sufficient participation to meet the District’s obligation. 24 Parent disputed the representation in the draft FBA that Parent had declined to participate, 25 asserting that his October 2019 email to Reddy “was sufficient to fulfill the Parent’s 26 participation.” AR 282. The context of Parent’s statement makes clear that Parent was attempting 27 to rebut the suggestion that he had refused to participate in the FBA process. Nothing in the 1 fulfilled its statutory obligations with respect to the FBA. The Court simply is not persuaded that 2 Parent’s statement is sufficient to establish that the District fulfilled is statutory obligation to 3 obtain Patent’s input. This is particularly true given that at the time Parent made that statement, 4 Harmon had not yet been provided with Parent’s October 2019 email listing his concerns. AR 5 405, 978-80. 6 Accordingly, the District has not met its burden to show that the ALJ erred by failing to 7 properly analyze and consider the parental input obtained by District in conducting its FBA. 8 2. Asserted Failure to Conduct Harmless Error Analysis 9 The District next argues that the ALJ failed to properly analyze and consider the alleged 10 failure to obtain parental input for harmless error. The ALJ stated that if a district fails to prove its 11 assessment was appropriate, it must provide an IEE at public expense. AR 537. The ALJ 12 indicated that the parent is not required to show anything further, for example, that the 13 inappropriate assessment denied the student a FAPE or impeded the parent’s participation in the 14 development of the student’s IEP. Id. This Court agrees with the ALJ’s statement of the law, as it 15 is consistent with a plain reading of the applicable statutes, providing that when a parent requests 16 an IEE the District must provide it at public expense or demonstrate through an administrative 17 proceeding that the District’s assessment was appropriate. See 34 C.F.R. § 300.502(b); Cal. Educ. 18 Code § 56329(c). That construction of the law is supported by M.Z. ex rel. D.Z v. Bethlehem Area 19 Sch. Dist., 521 F. App’x 74, 77 (3d Cir. 2013), in which the Third Circuit held that “[o]nce the 20 Hearing Officer determined that the reevaluation was inappropriate, M.Z. was entitled to an 21 independent educational evaluation at public expense as a matter of law.” 22 The District has not cited any binding or persuasive authority to the contrary. The District 23 cites C.W. v. Capistrano Unified Sch. Dist., No. SACV 11-1157 DOC, 2012 WL 6093765 (C.D. 24 Cal. Dec. 5, 2012), for the proposition that errors in assessments are procedural in nature, must be 25 material, and must result in some harm. C.W. does not involve an ALJ’s determination that a 26 district’s assessment was inappropriate and does not discuss – or even mention – harmless error 27 analysis in the assessment context. In Ford ex rel. Ford v. Long Beach Unified Sch. Dist., 291 1 assessment and the district court, in turn, upheld the hearing officer’s decision. Accordingly, the 2 decision does not speak to the relevant issue, whether an ALJ must engage in a harmless error 3 analysis after determining that a district’s assessment is inappropriate. 4 The District’s reliance on W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 5 Missoula, Mont., 960 F.2d 1479, 1484 (9th Cir. 1992), also is unavailing. The cited portion of the 6 opinion stands for the unremarkable proposition that “[p]rocedural flaws do not automatically 7 require a finding of a denial of a FAPE.” The ALJ did not find that failure to obtain Parent’s input 8 deprived H.T. of a FAPE. The ALJ determined that the failure to obtain Parent’s input rendered 9 the FBA inappropriate and entitled H.T. to an IEE at public expense. This Court agrees. 10 The District has not met its burden to show that the ALJ erred by failing to undertake a 11 harmless error analysis before determining that the District’s inappropriate FBA entitled H.T. to 12 an IEE. 13 The District’s motion for summary judgment is DENIED. The ALJ’s determination on 14 San Jose’s Issue is AFFIRMED. 15 D. H.T.’s Motion 16 H.T. moves for summary judgment on his counterclaim that Student’s Issue 1 and 17 Student’s Issue 2 were wrongly decided by the ALJ. The District argues that the issues were 18 correctly decided by the ALJ. The Court addresses Student’s Issue 1 and Student’s Issue 2, below. 19 Before doing so, however, the Court notes that there is some suggestion in H.T.’s briefing that the 20 District bears the burden of proof on Student’s Issues 1 and 2. As the party challenging the ALJ’s 21 decision on these issues, H.T. “bears the burden of demonstrating that the ALJ’s decision was 22 incorrect.” Crofts, 22 F.4th at 1053. 23 1. Student’s Issue 1 24 Student’s Issue 1 at the administrative level was whether the District denied H.T. a FAPE 25 by failing to appropriately conduct the FBA. The ALJ found that although the District’s FBA was 26 not appropriate, H.T. failed to prove that this procedural violation denied him a FAPE. AR 556- 27 58. H.T. contends that the ALJ did not apply the correct legal standard when he applied a 1 entirely clear from H.T.’s papers, based on H.T.’s briefing and the oral argument presented by 2 H.T.’s counsel, the Court understands H.T. to be arguing that a District’s failure to appropriately 3 conduct an FBA constitutes a per se deprivation of a FAPE. 4 The Ninth Circuit’s recent decision in Crofts summarizes the framework for analyzing a 5 claim that a student has been denied a FAPE. “[A] state must comply both procedurally and 6 substantively with the IDEA.” Crofts, 22 F.4th at 1054 (internal quotation marks and citation 7 omitted). “The court engages in a two-step inquiry to determine whether a child has received a 8 FAPE.” Id. “It determines first whether the IDEA’s procedures were complied with and second 9 whether the district met its substantive obligation to provide a FAPE.” Id. “While some 10 procedural violations can be harmless, procedural violations that substantially interfere with the 11 parents’ opportunity to participate in the IEP formulation process, result in the loss of educational 12 opportunity, or actually cause a deprivation of educational benefits clearly result in the denial of a 13 [FAPE].” Id. (internal quotation marks and citation omitted). 14 None of the authorities cited by H.T. hold that a different framework applies. H.T. argues 15 that the failure to include a parent’s input in an FBA is a per se statutory violation that is not 16 subject to a harmless error analysis. H.T. relies on broad language in several Ninth Circuit cases 17 emphasizing the importance of parental participation in the IEP process. See, e.g., M.C. by & 18 through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1198 (9th Cir. 2017); 19 Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105 (9th Cir. 2016); Amanda J. ex rel. 20 Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001). However, none of those 21 cases holds that the failure to include a parent’s input in an FBA constitutes a per se statutory 22 violation. 23 The ALJ applied the correct legal framework, outlined above, in evaluating whether the 24 District denied H.T. a FAPE by failing to appropriately conduct the FBA. AR 556-58. First, the 25 ALJ determined that H.T. proved that the District’s FBA was inappropriate because the District 26 unreasonably failed to obtain Parent’s input in conducting the FBA. AR 556. Next, the ALJ 27 considered whether this procedural violation impeded H.T.’s right to a FAPE or caused a 1 evidence that the District’s failure obtain Parent’s input had any effect on the FBA, or impeded 2 Parent’s ability to participate in the IEP. These factual determinations of the ALJ are entitled to 3 substantial deference for the reasons discussed above. 4 Moreover, the Court has reached the same conclusions as the ALJ based on its independent 5 review of the administrative record. The only concerns identified by Parent throughout the FBA 6 process were those listed in his October 2019 email. Harmon testified that Parent’s concerns 7 listed in that email were identified in H.T.’s 2016 and 2018 assessments, which Harmon reviewed 8 before preparing the draft FBA. AR 978-80. Harmon testified expressly that the 9 recommendations she included in the FBA would not have changed even if she had been provided 10 with Parent’s October 2019 email to Reddy prior to her assessment of H.T. AR 984. 11 The Court by no means intends to suggest that a district’s failure to obtain a parent’s input 12 in an assessment can never deny the student a FAPE. The Court concludes only that on the 13 particular facts of this case, H.T. has not shown that the ALJ erred in finding that the inappropriate 14 FBA did not deny H.T. a FAPE. H.T. does not identify any additional information that Parent 15 could have provided had Parent been included fully in the FBA process. H.T. speculates that 16 Harmon might have been able to draw out information from Parent had she interviewed him. 17 H.T.’s unsupported speculation is insufficient to establish that the ALJ’s decision was in error. 18 H.T. has not met his burden to show that the ALJ erred in his determination of Student’s 19 Issue 1. 20 2. Student’s Issue 2 21 Student’s Issue 2 at the administrative level was whether the District denied H.T. a FAPE 22 by failing to provide all requested education records. The ALJ applied the same two-part 23 framework for procedural violations discussed above with respect to Student’s Issue 1. The ALJ 24 found that the District failed to provide Harmon’s notes, which were kept on her laptop and 25 ultimately wiped when she left her employment with the District. AR 558-63. However, the ALJ 26 determined that H.T. failed to prove that this procedural violation denied him a FAPE. Id. The 27 ALJ’s determination is entitled to substantial deference. 1 that H.T. did not prove that the failure to provide Harmon’s notes denied him a FAPE. Harmon 2 || testified that it was her practice to keep notes of her observations and interviews in a Word file on 3 her school-issued laptop when she was in the midst of conducting an FBA. AR 964-65. 4 || Eventually, she cleaned up those notes in the Word file before copying and pasting them into the 5 || FBA. AR 965. Accordingly, any information in Harmon’s notes was included in the FBA. 6 H.T. has failed to identify how the District’s failure to produce Harmon’s notes deprived 7 him of a FAPE. He argues that “[n]o one knows what insights or inferences might have been 8 gleaned from a review of such records. The District’s destruction thereof, therefore, has foreclosed 9 Parent’s opportunity to show how they might have been relevant to his participation in his son’s IEP 10 || process.” H.T.’s Reply at 8, ECF 37. This unsupported speculation is insufficient to establish that the 11 ALJ’s decision was in error. H.T. has not met his burden to show that the ALJ erred in his 12 || determination of Student’s Issue 2. 5 13 H.T.’s motion for summary judgment is DENIED. The ALJ’s determinations on Student’s 14 || Issue 1 and Student’s Issue 2 are AFFIRMED. 3 15 IV. ORDER a 16 (1) The District’s motion for summary judgment is DENIED. 3 17 (2) H.T.’s cross-motion for summary judgment is DENIED. 18 (3) The ALJ’s decision is AFFIRMED. 19 (4) This order terminates ECF 31 and 32. 20 (5) The parties shall submit a joint status report by November 4, 2022, advising the 21 Court whether there are any outstanding issues in this case or whether the Court 22 may direct the Clerk to close the file. 23 24 Dated: October 21, 2022 fob La roman)

ETH LABSON FREEMAN

26 United States District Judge 27 28