                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             FEB 14 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
B. E. L., individually and on behalf of his      No. 14-17316
minor child, B.E.L.,
                                                 D.C. No. 1:14-cv-00066-SOM-BMK
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

STATE OF HAWAII DEPARTMENT
OF EDUCATION and KATHRYN
MATAYOSHI, in her official capacity
as Superintendent of the Hawaii Public
Schools,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Susan O. Mollway, District Judge, Presiding

                          Submitted February 12, 2018**
                               Honolulu, Hawaii

Before: O’SCANNLAIN, CLIFTON, 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 district court affirmed the Administrative Hearing Officer’s conclusion

that the State of Hawaii Department of Education did not violate the Individuals

with Disabilities Education Improvement Act of 2004 (“IDEA”), 20 U.S.C. § 1400

et seq. We affirm.

      B.L. (“Parent”), individually and on behalf of his minor son (“Student”),

argues that the district court erred in refusing to address the alleged procedural

violations in Student’s 2013 Individualized Education Plan (“2013 IEP”). The

district court explained that Parent waived those arguments by failing to raise them

in his request for a due process hearing. Parent does not address any of the district

court’s explanations but instead repeats the same arguments he made

unsuccessfully to that court. Therefore, the arguments have been waived.

Robinson v. Jewell, 790 F.3d 910, 915 (9th Cir. 2015).

      Moreover, under the IDEA, “[t]he party requesting the due process hearing

shall not be allowed to raise issues at the due process hearing that were not raised

in the notice filed under subsection (b)(7), unless the other party agrees otherwise.”

20 U.S.C. § 1415(f)(3)(B). The notice only argued that the 2013 IEP denied

Student a Free Appropriate Public Education (“FAPE”) because it was overly

restrictive. The DOE did not agree to the addition of other arguments, and it raised

Parent’s failure to exhaust the other issues as an affirmative defense. We agree


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with the district court that the additional procedural arguments may not be

considered.

      Nor did the 2013 IEP deny student a FAPE. To determine if a placement is

overly restrictive, this Court balances: “(1) the educational benefits of placement

full-time in a regular class; (2) the non-academic benefits of such placement;

(3) the effect [the student] had on the teacher and children in the regular class; and

(4) the costs of mainstreaming [the student].” Sacramento City Unified Sch. Dist.

v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994).

       We review the district court’s findings of fact for clear error and its

conclusions of law de novo. L.J. v. Pittsburg Unified Sch. Dist., 850 F.3d 996,

1002 (9th Cir. 2017). Moreover, we must give “due weight” to the Administrative

Hearing Officer’s decision, which “requires this court to refrain from substituting

its own notions of educational policy for those of the school authority it reviews.”

Id. at 1002-03.

      Parent states a general disagreement with the district court’s application of

the Rachel H. factors but does not offer any specific challenges. The district court

concluded correctly that Student’s placement was appropriate. The record showed

that Student was far behind his peers in reading and math, and that he had already

received accommodations in the general education classroom that did not help.


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Parent presented no reason why Student could not obtain non-academic benefits of

general education classroom placement during the larger part of the day when he

was placed in such a classroom. Student’s special education teacher testified that

his confidence improved in her classroom. Student’s general education teacher

testified that it would be difficult to teach multiple grade levels in her classroom.

      Parent’s arguments to the contrary are unavailing. Parent argues that the

2013 IEP shows that Student was on par with his grade level for language arts, but

the same document noted the many areas in which Student needed to improve, and

his special education teacher testified that he could not succeed in a second grade

setting. The evaluation cited by Parent that shows that Student was on par with his

general education peers and that Student’s reading and math skills were “low

average” does not outweigh other evidence in the record. The private school in

which Student was enrolled when Parent removed him from his home school

specialized in educating gifted students with dyslexia, and his classroom placement

there had limited relevance to his placement under the 2013 IEP. Any admission

by Student’s teachers about their ability to implement the 2013 IEP in a general

education classroom or the legality of teaching below grade level in a general

education classroom did not detract from the balancing required by the Rachel H.

factors. General statements about the placement of non-native English speakers


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and students who may have greater learning disabilities than Student, without

more, were immaterial.

      AFFIRMED.




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