                                                                            FILED
                               NOT FOR PUBLICATION                           APR 11 2011

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




                               FOR THE NINTH CIRCUIT



K. S.; et al.,                                    No. 10-15099

                 Plaintiffs - Appellants,         D.C. No. 3:06-cv-07218-SI

  v.
                                                  MEMORANDUM *
FREMONT UNIFIED SCHOOL
DISTRICT,

                 Defendant - Appellee.



                      Appeal from the United States District Court
                        for the Northern District of California
                        Susan Illston, District Judge, Presiding

                         Argued and Submitted March 14, 2011
                               San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

       In this Individuals with Disabilities Education Act (“IDEA”) lawsuit, K.S.

appeals the district court’s grant of summary judgment in favor of the defendant

Fremont Unified School District (the “District”).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      To be eligible for federal education funding, the IDEA requires a state to

have policies and procedures in place to ensure that “[a] free appropriate public

education is available to all children with disabilities residing in the State.” 20

U.S.C. § 1412(a)(1)(A). The IDEA does not require that the state adhere to any

particular educational approach. See Adams v. Oregon, 195 F.3d 1141, 1145 (9th

Cir. 1999). Rather, the IDEA requires that the state’s program provide specialized

instruction “supported by such services as are necessary to permit the child ‘to

benefit’ from the instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 189 (1982).

1.    K.S. first contends that the district court erred in giving deference to the

ALJ’s 40-page original decision and subsequent 29-page remand decision.

Specifically, K.S. alleges that the district court acted as a “rubber stamp” with

regard to the administrative law judge’s (“ALJ”) credibility determinations and

findings that K.S. made meaningful progress in achieving the educational and

occupational goals established in K.S.’s individualized education plans (“IEPs”)

for the years in question. We conclude, however, that the district court did not

abuse its discretion by giving due weight to the detailed decisions of the ALJ. See

Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891–92 (9th Cir. 1995).

Here, the ALJ found that the District’s IEPs were consistent with IDEA’s

objectives because they were effectively tailored to K.S.’s unique needs, and were


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based upon accepted teaching principles in the field of autism education. These

findings are consistent with the opinions of several of the experts who testified at

the administrative hearings that K.S.’s IEPs were appropriate and resulted in

meaningful benefit for K.S. given her cognitive impairment. See, e.g., Testimony

of Dr. Bryna Siegel Admin. R. at 4271–72.

2.    Next, K.S. argues that K.S.’s IEPs failed to provide a “meaningful” benefit

as required by the IDEA. See J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951

(9th Cir. 2010) (“The proper standard to determine whether a disabled child has

received a free appropriate education is the ‘educational benefit’ standard set forth

by the Supreme Court in Rowley.”). In light of all the record evidence, the district

court’s findings are sufficient to support its conclusion that the District’s IEPs

provided “some educational benefit” for K.S. given her severe cognitive

impairment. Rowley, 458 U.S. at 200–01; see also Adams, 195 F.3d 1149–50.

Stated differently, the record evidence supports the district court’s conclusion that

K.S.’s IEPs addressed her unique educational needs and provided appropriate goals

to achieve some educational benefit. See 20 U.S.C. § 1414(d).

3.    K.S. also contends that the district court overlooked the District’s failure to

assess her cognitive capacity. This argument lacks merit, as the record evidence

demonstrates that the District attempted to assess K.S.’s cognitive ability but was


                                           3
unable to do so because of her distractibility and her limited ability to maintain

social interaction. Contrary to K.S.’s argument, the evidence shows that the IEP

teams were aware of K.S.’s cognitive impairment, and properly accounted for her

limited cognitive abilities in developing her IEPs.

4.    K.S. contends an IQ score is a “legal prerequisite” to a determination that a

student is cognitively impaired. Thus, K.S. argues that because neither the district

nor her private testers were able to obtain an IQ score for her, the ALJ’s

determination that K.S. was cognitively impaired and could not make greater

progress towards her IEP goals was legal error. This contention is without legal

basis. The ALJ’s determination that K.S. had a cognitive disability was valid

based on expert testimony, her results on alternative cognitive tests, her IEPs, and

her progress reports from school. See 20 U.S.C. § 1414(b)(2)(B) (local education

agency “shall not use any single measure or assessment as the sole criterion for

determining whether a child is a child with a disability or determining an

appropriate educational program for the child”).

5.    K.S. argues that the District’s educational program, as reflected in the IEPs,

violated the IDEA because it was not based on Applied Behavior Analysis therapy

techniques. In Adams, we found that an eclectic approach similar to the one used

by the District here met the IDEA’s substantive requirements. See Adams, 195


                                           4
F.3d at 1145. We need not decide whether the District made the best decision or a

correct decision; we need only decide whether its decision satisfied the

requirements of the IDEA. In doing so, we “must be careful to avoid imposing

[the court’s] view of preferable education methods upon the State.” Rowley, 458

U.S. at 207. Given the deference we must extend to school officials to tailor an

educational program to the needs of the child, we conclude that the District’s IEPs

met the IDEA’s substantive requirements. See J.W. ex rel. J.E.W. v. Fresno

Unified Sch. Dist., 626 F.3d 431, 450 (9th Cir. 2010).

6.    K.S. argues that the district court’s remand order was legal error because it

contravened the “snapshot rule” recognized in Adams. Specifically, K.S. contends

that the remand order allowed the ALJ to use findings from the 2009 hearing to

conclude that, during the relevant years at issue, K.S. had a cognitive impairment.

We disagree. In Adams, we considered whether the district court erred in using a

student’s subsequent progress as a measure of an IEP’s adequacy. 195 F.3d at

1149. Here, neither the district court nor the ALJ relied upon any subsequent

progress by K.S. to determine whether K.S.’s IEPs were appropriate. Rather, the

court’s and the ALJ’s findings regarding K.S.’s cognitive capacity were based on

the documentary and testimonial evidence from the school years at issue.




                                          5
Accordingly, we conclude that the district court did not err in remanding K.S.’s

case to the ALJ for further proceedings.

7.    Finally K.S. contends that the ALJ was biased. As support for this

argument, K.S. relies on the handwritten notes the ALJ took during the hearings.

Contrary to K.S.’s assertion, there is nothing in the ALJ’s notes to show that he

exhibited bias toward K.S. or reached a final decision before the conclusion of the

case. Rather, the ALJ’s notes simply detail his impressions during the hearings.

Moreover, the ALJ’s two detailed decisions demonstrate that his review of this

case was thorough, well-reasoned, and supported by a preponderance of the record

evidence.

AFFIRMED.




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