                                                                           FILED
                            NOT FOR PUBLICATION                             APR 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOHN MAHONEY; KATE MAHONEY,                      No. 09-55726
parents of B.M., a minor,
                                                 D.C. No. 3:08-cv-01860-H-NLS
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

CARLSBAD UNIFIED SCHOOL
DISTRICT, a local educational agency,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                       Argued and Submitted April 12, 2011
                              Pasadena, California

Before: BYBEE and M. SMITH, Circuit Judges, and DAWSON, District Judge.**

       John and Kate Mahoney (collectively, “the Mahoneys”), parents of B.M., a

student with speech and language impairment, appeal the district court’s summary


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kent J. Dawson, United States District Judge for the
District of Nevada, sitting by designation.
judgment in their action under the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq., against Carlsbad Unified School District

(“District”). The Mahoneys allege the District committed several procedural

violations of the IDEA that denied B.M. a free appropriate public education

(“FAPE”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                           I.

      The Mahoneys first contend the District denied B.M. a FAPE by failing to

include his current special education teacher, Ms. Padgett, at the January 24 and

February 20, 2008, individual education program (“IEP”) team meetings. Under

the IDEA, an IEP team must include “not less than 1 special education teacher, or

where appropriate, not less than 1 special education provider of such child.” 20

U.S.C. § 1414(d)(1)(B)(iii); see also 34 C.F.R. § 300.321(a)(3). We have recently

interpreted this provision “not to require the participation of the child’s current

special education teacher.” R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496

F.3d 932, 940 (9th Cir. 2007) (emphasis added). Accordingly, Ms. Padgett’s

exclusion from the IEP team was not a procedural violation per se. See id.

      Under Napa Valley, an IEP team meeting is procedurally valid as long as it

includes not less than one special education teacher or provider “who has actually

taught the student.” Id. Here, this requirement was satisfied by including Ms.


                                          -2-
Schmitz at the meetings. It is undisputed that Ms. Schmitz provided small-group

speech and language services to B.M. in 2005, which related to B.M.’s disability at

the time of “speech or language impairment.” Ms. Schmitz also conducted a recent

assessment of B.M. in 2007. Ms. Schmitz’s presence at both IEP team meetings

thus satisfied the “actually taught” requirement set forth in Napa Valley.

      We reject the Mahoneys’ argument that the special education teacher or

provider must have provided services to the child in the area of the child’s current

disability. This contention finds no support in the plain language of the statute,

which only requires “not less than one” special education teacher or provider of the

child. See 20 U.S.C. § 1414(d)(1)(B)(iii); 34 C.F.R. § 300.321(a)(3). Moreover,

this argument is undermined by our decision in Napa Valley as well as the

comments to the 2006 Federal Regulations. See Napa Valley, 496 F.3d at 940 (the

IDEA does not require the participation of the student’s current teacher);

Assistance to States for the Education of Children With Disabilities and Preschool

Grants for Children With Disabilities, 71 Fed. Reg. 46540, 46669-46670 (Aug. 14,

2006) (“Decisions as to which particular teacher(s) or special education provider(s)

are members of the IEP Team . . . are best left to State and local officials to

determine, based on the needs of the child.”). In any event, until the January 24,

2008, IEP team meeting, B.M. qualified for special education services under the


                                          -3-
category of “speech or language impairment.” Because Ms. Schmitz’s expertise is

in this area and she specifically provided B.M. with services in this area in 2005,

she meets any requirement that she must have provided services to B.M. in the area

of B.M.’s disability.1 The District, therefore, assembled a statutorily-compliant

IEP team.

                                          II.

      The Mahoneys next argue the District committed a procedural violation

when it gave them insufficient notice as to who would be in attendance at the IEP

team meetings and when it included additional participants at those meetings

despite Ms. Mahoney’s objections. The District, however, properly included the

teachers from the Calavera Elementary School, who assessed B.M. in late 2007,

and the teachers from the Hope Elementary School, who would be implementing

any proposed IEP, at the IEP team meetings. See 20 U.S.C. § 1414(d)(1)(B)(iv),

(vi); 34 C.F.R. § 300.321(a)(4), (6); see also 34 C.F.R. § 300.321(c). Any failure


      1
        We are also not persuaded by the Mahoneys’ suggestion that a special
education provider like Ms. Schmitz, who previously provided the child with
services under the category of “speech or language impairment,” somehow
becomes disqualified when the child’s disability is reclassified at the IEP team
meeting to “specific learning disability.” See 20 U.S.C. § 1401(30)(A) (“The term
‘specific learning disability’ means a disorder in 1 or more of the basic
psychological processes involved in understanding or in using language, spoken or
written, which disorder may manifest itself in the imperfect ability to listen, think,
speak, read, write, spell, or do mathematical calculations.”).

                                          -4-
to notify the Mahoneys as to the specific number of individuals who would be

present was harmless because the Mahoneys failed to show that it resulted in a loss

of educational opportunity or seriously infringed their opportunity to participate in

the IEP formulation process. See Amanda J. ex rel. Annette J. v. Clark Cnty. Sch.

Dist., 267 F.3d 877, 892 (9th Cir. 2001); see also 20 U.S.C. § 1415(f)(3)(E)(ii).

                                         III.

      Finally, the Mahoneys argue the District committed a procedural violation

when its representatives met informally between the IEP team meetings without

inviting Ms. Mahoney, and when they failed to supply Ms. Mahoney with the

initial draft of the goals and objectives at the February 20, 2008, IEP team meeting.

There was no requirement for the District to include Ms. Mahoney in the informal

meetings between the District representatives. See 34 C.F.R. § 300.501(b)(3); see

also 71 Fed. Reg. at 46678. The Mahoneys also failed to show how any failure to

provide Ms. Mahoney with the initial draft of the goals and objectives resulted in a

loss of educational opportunity or seriously infringed her opportunity to participate

at the February 28, 2008, meeting. The Administrative Law Judge found that Ms.

Mahoney had no problem contributing to the discussion and modification of the

goals and objectives during the meeting. The record supports this conclusion. Any

procedural violation was therefore harmless. See Amanda J., 267 F.3d at 892.


                                         -5-
AFFIRMED.




            -6-
