                                                                              FILED
                             NOT FOR PUBLICATION                              APR 06 2012

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT

Ka.D., a minor, by her mother, Ky.D., as         Nos. 10-56320; 10-56373
her next friend; Ky.D. and B.D.,
                                                 D.C. No. 3:08-cv-0622-W-WVG
                Plaintiffs-counter-defendants-
                Appellees/Appellants,
                                                 MEMORANDUM*
  v.

MARY ELLEN NEST,
        Defendant,

and

SOLANA BEACH SCHOOL DISTRICT,

                Defendant- counter-
              claimants- Appellant/
              Appellee.

                     Appeal from the United States District Court
                       for the Southern District of California
                      Thomas J. Whelan, Senior District Judge

                      Argued and submitted February 17, 2012
                               Pasadena, California

Before:        FARRIS and W. FLETCHER, Circuit Judges, and KORMAN,


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
            Senior District Judge.**

      The cross appeals in this case arise out of the district court’s order affirming an

administrative decision under the Individuals with Disabilities Education Act

(“IDEA”). Because the history and facts of this case are familiar to the parties, we

recount them only to the extent necessary to explain our decision.

      The Solana Beach School District (“School District” or “District”) offered

Ka.D. (“Student”), who is autistic, a placement for the 2007-2008 school year after

conducting a meeting to develop an individualized education program (“IEP”) for her.

After providing notice to the District, the Student’s parents chose to place her at

Hanna Fenichel, a private general education school serving typically developing

children, and sought tuition reimbursement under the IDEA.

      A due process hearing under the IDEA, 20 U.S.C. §1415(f), then ensued. The

administrative law judge (“ALJ”) determined that the School District had failed to

provide the Student with a free and appropriate public education (“FAPE”), and that

the Hanna Fenichel placement was appropriate. These two findings provided the

necessary predicate for the parents to qualify for reimbursement of their unilateral




       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
                                           2
placement. Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15

(1993). The district court affirmed, and this appeal followed.

      We review the district court’s findings of fact for clear error even when they are

based on the written record of administrative proceedings, and the issue of whether

the School District’s placement of the Student constituted a FAPE de novo. Ms. S. ex

rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1127 (9th Cir. 2003), superseded

on other grounds by 20 U.S.C. § 1414(d)(1)(B); Amanda J. ex rel. Annette J. v. Clark

Cnty Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). Because the district court

exercises “its discretion in fashioning appropriate relief” under the IDEA, we review

for “abuse of discretion the district court’s determination of appropriate equitable

relief.” Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1084-85 & n.7 (9th Cir.

2008).

      Under the IDEA, a child receives a FAPE “if the program (1) addresses the

child’s unique needs, (2) provides adequate support services so the child can take

advantage of the educational opportunities, and (3) is in accord with the [IEP].”

Capistrano Unified Sch. Dist. v. Wartenberg ex rel. Wartenberg, 59 F.3d 884,

893 (9th Cir. 1995) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)).

This case is close. Specifically, the principal issue in the formulation of the IEP was

whether the Student should remain at Hanna Fenichel, where she had made substantial


                                           3
and impressive progress or whether she should be placed in a special education

classroom in the District.

      Although Dr. Schreibman, the District’s outside evaluator,1 recommended

special education, she “strongly believe[d] that if things continue to progress as they

seem to be doing with” the Student, “she would be able to transition relatively quickly

from the special education classroom to a more inclusive program.” The problem,

however, was that the District’s more inclusive general education classroom did not

meet the Student’s unique needs because she required a program with a smaller

number of children. (Dr. Schreibman testified that she did not “see [the Student] as

anywhere near ready for the inclusive classroom at Solana Beach Schools because

[she] do not think [the student was] ready to handle a classroom with a large number

of peers.”)

      Indeed, although Dr. Schreibman assumed that the District’s general education

class contained 24 students, the District’s placement required the Student to interact

with about 42 children, counting the different core group of students that attended the

general education class on different days (about 30) and the children from her special

education class. Presumably, because the Student could not handle a class with a

large number of peers, Dr. Schreibman observed that ideal program for her would be
      1
        Dr. Schreibman is a professor at the University of California, San Diego,
who is an autism specialist.
                                          4
a combination of the District’s special education class and a program like the Hanna

Fenichel school, which was composed of only 6 to 8 children. Nevertheless, the

District offered a bifurcated placement, which included a half-day placement in its

general education class. We agree with the ALJ’s determination that the District’s

general education class was an inappropriate education setting for the Student, and

therefore, the District’s offer substantively failed to provide a FAPE.

      Turning to the parental placement, there is no question that Hanna Fenichel

with the support of a 1:1 aide met the Student’s unique needs, and she benefitted from

her instruction. C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 635 F.3d

1155, 1159-60 (9th Cir. 2011) (“To qualify for reimbursement under the IDEA,

parents . . . need only demonstrate that the placement provides educational instruction

specially designed to meet the unique needs of a handicapped child, supported by such

services as are necessary to permit the child to benefit from instruction.”) (quoting

Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006)) (emphasis omitted).

      Finally, we agree with the district court that it was not an abuse of discretion

to grant the District 30 days to provide a 1:1 aide to the Student at Hanna Fenichel. In

sum, the record fully supports the ALJ’s and district judge’s conclusion and granting

of equitable relief, and we find the parties’ remaining contentions on appeal

unpersuasive.


                                           5
AFFIRMED.




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