                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 01 2011

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




                            FOR THE NINTH CIRCUIT



ANCHORAGE SCHOOL DISTRICT,                        No. 10-36065

              Plaintiff - Appellee,               D.C. No. 3:09-cv-00189-TMB

  v.
                                                  MEMORANDUM *
M.P., a student with a disability and M.P.,
his parent,

              Defendants - Appellants.



                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                      Argued and Submitted October 11, 2011
                               Seattle, Washington

Before: KOZINSKI, Chief Judge, PAEZ, Circuit Judge, and BURNS, District
Judge.**

       M.P., by and through his parents, appeals the district court’s grant of

summary judgment in favor of the Anchorage School District (“the ASD”) and its


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Larry A. Burns, District Judge for the U.S. District
Court for Southern California, sitting by designation.
dismissal of M.P.’s claims that the ASD violated the Individuals with Disabilities

Education Act (“IDEA”).

      The district court concluded that the ASD did not deny M.P. a FAPE

because M.P.’s parents failed to cooperate with the ASD in the preparation of a

new individualized educational program (“IEP”) for M.P. In so concluding, the

district court did not address whether M.P. actually received a FAPE. That was

error. Neither the IDEA nor its implementing regulations qualifies any duty

imposed on a state or local educational agency as contingent upon parental

cooperation. Further, the ASD does not cite any binding case law, and we are not

aware of any, that supports such a proposition.

      Although the district court did not address whether the ASD provided M.P.

with a substantively adequate FAPE, there is no need to remand this issue. The

record was fully developed before the hearing officer, our review is de novo, and

whether M.P. received a FAPE is ultimately a legal question because the ASD

challenges the hearing officer’s legal conclusions. See Gregory K. v. Longview

Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987).

      Providing a substantively adequate FAPE requires that the state or local

educational agency develop an IEP “through the [IDEA’s] procedures reasonably

calculated to enable the child to receive educational benefits.” Bd. of Educ. of


                                          2
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). We

give considerable weight to the hearing officer’s decision because she conducted a

thorough and careful analysis. R.B. ex rel F.B. v. Napa Valley Unified Sch. Dist.,

496 F.3d 932, 937 (9th Cir. 2007). We agree with the hearing officer’s analysis

and conclude that the ASD deprived M.P. of a FAPE because the outdated IEP

does not satisfy the Rowley “educational benefit” standard.1

      The district court also concluded that it would deny M.P.’s parents

reimbursement for private tutoring expenses regardless of whether the ASD denied

M.P. a FAPE. That was an abuse of discretion. C.B. ex rel Baquerizo v. Garden

Grove Unified Sch. Dist., 635 F.3d 1155, 1159 (9th Cir. 2011). An award of

tutoring expenses is well-supported by the hearing officer’s decision. Therefore,

M.P.’s parents are entitled to reimbursement for tutoring expenses in math and

reading incurred from January 1, 2008 to December 2008. M.P.’s parents are also

entitled to submit for review by the IEP team and the ASD those tutoring expenses

incurred from January 1, 2009 through May 2009, in accordance with the hearing

officer’s decision.




      1
            Because the ASD denied M.P. a substantively adequate FAPE, we do
not address M.P.’s procedural claims.

                                         3
      Because M.P. has prevailed on the central issue in this case, we vacate the

district court’s order directing that the parties bear their own costs and attorney’s

fees. On remand, M.P., as the prevailing party, may file a motion for an award of

attorney’s fees under 20 U.S.C. § 1415(i)(3)(B)(i)(I). Although we express no

opinion on whether M.P. is entitled to an award of attorney’s fees, we note that the

district court has only narrow discretion to deny an award of attorney’s fees to

parents who have successfully litigated claims under the IDEA. Park ex rel. Park

v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1034 (9th Cir. 2006).

      REVERSED IN PART, VACATED, AND REMANDED.




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