                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID BURNETT, as guardian ad litem             No.    17-15841
for SB, a minor; et al.,
                                                D.C. No. 3:16-cv-01789-EDL
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

SAN MATEO FOSTER CITY SCHOOL
DISTRICT,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Northern District of California
                 Elizabeth D. Laporte, Magistrate Judge, Presiding

                             Submitted June 14, 2018**
                             San Francisco, California

Before: SILER,*** PAEZ, and IKUTA, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
      Plaintiffs S.B., and her parents David and Miriam Burnett (collectively, “the

Burnetts”) appeal the district court’s judgment affirming a California

administrative law judge’s (“ALJ”) denial of their claim that S.B. was denied a free

and appropriate public education (“FAPE”) under the Individuals with Disabilities

in Education Act (“IDEA”). The ALJ concluded that the San Mateo Foster City

School District (“District”) violated its “child find” duty as well as procedural

requirements to provide parents with a copy of their rights and procedural

safeguards. The ALJ concluded, however, that the District did not violate the

Burnetts’ procedural right to obtain a complete copy of S.B.’s “education records.”

The ALJ ultimately concluded that any procedural violations were harmless

because the Burnetts did not establish that S.B. was eligible for special education.

The Burnetts appealed to the district court, and the district court affirmed.

      The Burnetts timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s legal determinations and review for clear

error findings of facts by the district court. See L.J. v. Pittsburg Unified School

District, 850 F.3d 996, 1002 (9th Cir. 2017). We give substantial weight to the

ALJ’s decision if it shows a careful and impartial consideration of the evidence.

County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458,

1466 (9th Cir. 1996). We affirm.




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1.    The District does not contest the district court’s determination that it

committed several procedural violations under IDEA, so we assume that the

District violated its “child find” procedural obligations, see 20 U.S.C. §

1412(a)(3)(A), as well as procedural requirements to provide parents with a copy

of their rights and procedural safeguards, see Cal Educ. Code § 56321(a); 20

U.S.C. § 1415(d). We affirm the district court’s conclusion that these procedural

violations did not result in a denial of FAPE, because the Burnetts never

established S.B.’s eligibility for special education. We have previously held that

under IDEA, a procedural violation that does not result in the loss of an

educational opportunity does not constitute a denial of FAPE. R.B. v. Napa Valley

Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007). When a student is ineligible

for special education there can be no loss of educational opportunities. Id. We

agree with the district court and ALJ that the Burnetts failed to establish that S.B.

was eligible for FAPE for the school years at issue.

      A student is eligible for special education if she is a “child with a disability”

and as a result needs special education and related services that cannot be provided

with modification of the regular school program. 20 U.S.C. § 1414(b); 34 C.F.R. §

300.8(a)(1); Cal. Educ. Code § 56026(a),(b). The two disabilities alleged by

S.B. in this case are a Specific Learning Disability (“SLD”) and Other Health

Impaired (“OHI”). See 34 C.F.R. § 300.8(a)(1).


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      A SLD is a disorder in one or more of the basic psychological processes

involved in understanding or using language (a “processing disorder”), which

manifests itself in the imperfect ability to listen, think, speak, read, write, spell, or

do mathematical calculations. 20 U.S.C. § 1401(30); 34 C.F.R. § 300.8(c)(10);

Cal. Educ. Code § 56337(a). In California, a processing disorder’s impact on

academic achievement can be determined by using one of two methods. The first is

the severe discrepancy method. 20 U.S.C. § 1414(b)(6)(A); Cal. Educ. Code §

56337(b). The district court did not clearly err in finding that neither the 2013 nor

2015 assessment of S.B. demonstrated a severe discrepancy. The second method is

the response to intervention method, but neither parties nor record evidence

suggest that S.B. would qualify under this test. Cal. Educ. Code § 56337(c).

Therefore, the Burnetts did not demonstrate that S.B. had a SLD during the

relevant time period.

      A student meets eligibility criteria under the OHI category if she has limited

strength, vitality or alertness, which can include a heightened alertness to

environmental stimuli, resulting in limited alertness with respect to the educational

environment, due to chronic or acute health condition that adversely affect

educational performance. Cal Code Regs. tit 5, § 3030(b)(9). The district court

did not clearly err in determining that, although S.B. had been diagnosed with

ADHD, S.B.’s teacher’s assessments as well as S.B.’s grades and tests scores show


                                            4
that S.B.’s ADHD did not appear to result in limited alertness or adversely impact

her educational achievements. The district court’s further determination that the

Burnetts did not establish that S.B. had an OHI is not clearly erroneous. We

therefore affirm the district court’s conclusion that S.B. was not a “child with a

disability” and was not denied a FAPE.

2.    The Burnetts also argue that the District committed a procedural violation

when it only turned over emails concerning S.B. that had been printed and added to

S.B.’s physical file. California Education Code § 56504 provides that “[t]he parent

shall have the right and opportunity to examine all school records of his or her

child and to receive copies pursuant to this section and to Section 49065 within

five business days after the request is made by the parent, either orally or in

writing.” Cal. Educ. Code § 56504. We affirm the district court’s determination

that the District was not required to turn over emails that were not “maintained” in

a physical folder or secure electronic data base.

      An “education record” under IDEA is defined by the regulations

implementing the Family Educational Rights and Privacy Act (“FERPA”). 34

C.F.R. § 300.611(b). Under FERPA, an education record includes records, files,

and documents that “(i) contain information directly related to a student; and (ii)

are maintained by an educational agency or institution or by a person acting for

such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). The Supreme Court has


                                           5
interpreted the word “maintained” in FERPA as “to keep in existence or

continuance; preserve; retain” and reasoned that “[t]he word ‘maintain’ suggests

FERPA records will be kept in a filing cabinet in a records room at the school or

on a permanent secure database.” Owasso Indep. Sch. Dist. No I-011 v. Falvo, 534

U.S. 426, 432-33 (2002). Since the District turned over the emails it “maintained”

as part of a student’s educational records, we agree with the district court that in

responding to the Burnetts’ request for a copy of S.B.’s education records, it did

not commit a procedural violation.

      AFFIRMED.




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