                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 12 2014

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



                            FOR THE NINTH CIRCUIT


A. G., a minor by and through his parent         No. 12-56516
and guardian ad litem C.G.,
                                                 D.C. No. 2:11-cv-08814-ODW-
              Plaintiff - Appellant,             CW

  v.
                                                 MEMORANDUM*
PASO ROBLES JOINT UNIFIED
SCHOOL DISTRICT,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                             Submitted March 6, 2014**
                                Pasadena, California

Before: BYBEE, BEA, and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      A.G., a minor with learning and developmental disabilities and behavioral

problems,1 and his parents (cumulatively, A.G.) filed this action challenging the

education programs that the Paso Robles Joint Unified School District (school

district) offered to A.G. Affirming an administrative law judge’s (ALJ) decision,

the district court granted summary judgment in favor of the school district. A.G.

appeals, arguing that the school district denied him a Fair and Appropriate Public

Education (FAPE). Our review is de novo, M.L. v. Fed. Way Sch. Dist., 394 F.3d

634, 642 (9th Cir. 2005), and we affirm.2

      The Individuals with Disabilities Education Act (IDEA) and California law

provide that disabled students shall receive a FAPE through Individualized

Education Programs (IEP). 20 U.S.C. §§ 1400(d)(1)(A), 1414(d)(1)(A)(i)(I-IV);

Cal. Educ. Code § 56000(a). Under the IDEA, a FAPE is guaranteed, in part, by

certain procedural safeguards for the disabled child and his parents. 20 U.S.C.

§ 1415(a). However, “[p]rocedural flaws in the IEP process do not always amount

to the denial of a FAPE.” L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909

(9th Cir. 2009). Rather, once a court finds a procedural violation of the IDEA, it




      1
          In March 2011, A.G. was diagnosed with autism.
      2
          We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                            2
“must determine whether that violation affected the substantive rights of the parent

or child.” Id.

      First, A.G. argues that the June 2010 IEP meeting did not provide him a

FAPE because a general education teacher did not attend the meeting.

      We agree that a general education teacher should have attended the meeting

because “‘IEP Team’ means a group of individuals” that includes “not less than 1

regular education teacher of such child (if the child is, or may be, participating in

the regular education environment).” 20 U.S.C. § 1414(d)(B)(ii). Nevertheless,

this error was harmless because the procedural violation did not “result [ ] in the

loss of an educational opportunity, seriously infringe [ ] the parents’ opportunity to

participate in the IEP formulation process or cause a deprivation of educational

benefits.” J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 953 (9th Cir. 2009).

      Next, A.G. argues that the school district denied him a FAPE because it did

not comply with sections 3001 and 3052 of Title 5 of the California Code of

Regulations, which require local education agencies to conduct an functional

analysis assessment (FAA) and provide a behavior intervention plan (BIP). We

disagree.




                                           3
      A.G.’s claim fails because the FAA and BIP requirements apply only to

students with severe behavior problems. Before July 1, 2013,3 Cal. Code Regs. tit.

5 §§ 3001(ab) & (g), 3052(b), defined a serious behavior problem as a pervasive

behavior that is “self-injurious, assaultive, or seriously damaging” to property that

the student’s IEP has proven ineffective in treating. Here, A.G. does not have a

serious behavior problem because he does not seriously damage property, and,

more importantly, he does not pose a threat to himself or the safety of others.4

Furthermore, A.G.’s IEPs were effective because he made progress toward his

goals. Accordingly, the school district did not deny A.G. a FAPE by not

conducting an FAA or developing a BIP.

      Last, A.G. contends that his parents and the IEP team had no way of

measuring his progress or determining whether he received a FAPE because the

school district did not identify a measurable baseline of his abilities. For example,


      3
         Assembly Bill 86, which went into effect on July 1, 2013, repealed the
FAA and BIP requirements. See Assem. Bill 86, 2013-2014 Reg. Sess. (Cal.
2013); Cal. Educ. Code § 56523(a). However, the relevant conduct here occurred
prior to July 1, 2013, when the FAA and BIP requirements remained in effect.
      4
        We acknowledge the seriousness of the April 2010 suicide attempt
incident, even though A.G.’s mother described it as a “misunderstanding.”
Nevertheless, because this was a single occurrence, it is not evidence of a pervasive
behavior issue. Further, the incident was not a serious behavior problem under
California law because there is no evidence that A.G.’s IEPs could not effectively
remedy the situation.

                                          4
one IEP stated that A.G. has “some difficulty forming age appropriate sentences,”

and another IEP stated that A.G. “often” shouted out off-topic answers without

waiting for the teacher to call on him, but neither IEP defined “some” or “often.”

      Although the IDEA requires “a statement of measurable annual goals,” 20

U.S.C. § 1414(d)(1)(A)(i)(II), it does not requires a statement of quantifiable

baselines. Rather, the IDEA requires baselines to contain “a statement of the

child’s present levels of academic achievement and functional performance.” Id.

§ 1414(d)(1)(A)(i)(I). Because A.G. has not demonstrated that the statements of his

baseline achievement and performance levels were inaccurate, he has not carried

his burden to demonstrate that the school district denied him a FAPE.

      AFFIRMED.




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