                                                                              FILED
                             NOT FOR PUBLICATION                              MAR 28 2012

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



                             FOR THE NINTH CIRCUIT


J.W., by and through K.K.W. Guardian Ad          No. 10-56356
Litem K.K.W. and W.W.; et al.,
                                                 D.C. No. 2:09-cv-02525-ODW-SS
                Plaintiffs-counter-defendants
- Appellants,
                                                 MEMORANDUM*
  v.

GOVERNING BOARD OF EAST
WHITTIER CITY SCHOOL DISTRICT
and EAST WHITTIER CITY SCHOOL
DISTRICT,

                Defendants-counter-claimants
- Appellees.


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

                        Argued and Submitted March 7, 2012
                               Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      J.W. appeals the district court’s affirmance of a California Administrative

Law Judge (“ALJ”) decision regarding his complaint under the Individuals with

Disabilities Education Act (“IDEA,” or “the Act”), 20 U.S.C. § 1400, et seq. We

have jurisdiction under 28 U.S.C. 1291 and we affirm. Because the parties are

familiar with the factual and legal history of the case, we need not recount it here.

                                           I

      The district court did not abuse its discretion in affirming the ALJ’s witness

credibility and weight determinations. As the trier of fact, the ALJ is in the best

position to assess witness credibility and the appropriate weight of testimony.

Therefore, “a finder of fact’s determination of credibility receives deference on

appeal, because access to live testimony is important to the credibility finding.”

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superseded on other grounds by 20 U.S.C. § 1414(d)(1)(B). “[C]redibility-based

findings [of the ALJ] deserve deference unless non-testimonial, extrinsic evidence

in the record would justify a contrary conclusion or unless the record read in its

entirety would compel a contrary conclusion.” Amanda J. ex rel. Annette J. v.

Clark Cnty. Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001) (quoting and then

adopting the Third Circuit’s reasoning).




                                           2
      The record does not compel the conclusion that the ALJ erred. In fact, the

ALJ analyzed credibility and weighed the evidence in a lengthy and thoughtful

decision. There is sufficient evidence in the record to support the ALJ’s

conclusions. Given the deferential standard of review, the district court did not err

in affirming the ALJ.

                                          II

      The district court properly concluded that the school district did not commit

a procedural IDEA violation that deprived J.W. of a Free and Appropriate Public

Education (“FAFE”). A procedural violation constitutes a denial of FAPE if the

inadequacy (1) resulted in the student losing educational opportunity; (2)

significantly impeded the parents’ opportunity to participate in the decision making

process; or (3) caused a deprivation of educational benefits. 20 U.S.C. §

1415(f)(3)(E)(ii); W.G. v. Bd. of Trustees, 960 F.2d 1479, 1383-84 (9th Cir. 1992).

      J.W. claims that he was denied a FAPE when the District’s Director of

Special Education conversed with a third-party speech provider after J.W.’s

individualized education program (“IEP”) team meeting. The District had to make

a written IEP offer after J.W.’s parents and the District staff disagreed at the IEP

meeting. In preparing this offer, the Director sought clarification from the speech

provider regarding one speech goal on which there had been discussion, but no


                                           3
agreement, at the meeting. The ALJ found that “the District’s modification of [the

goal] arose directly out of the IEP meeting, and another IEP meeting was not

required.” She also found that the goal alteration was “minor.” Thus, the ALJ

found that the conversation at issue did not “significantly deprive [J.W.’s] [p]arents

of meaningful participation in the IEP process . . . .” The record supports this

conclusion, and the district court did not err in declining to grant relief.

                                           III

      The district did not err in concluding that the school district had complied

with the substantive requirements of the IDEA. The record supports the

conclusion that the school district provided an IEP that is “developed through the

Act’s procedures [and] reasonably calculated to enable the child to receive

educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982); see also

20 U.S.C. §§ 1401(9), 1401(14), 1414(d); Seattle School District, No.1 v. B.S., 82

F.3d 1493, 1498-99 (9th Cir. 1996)).

      The IDEA does not require that a district “maximize the potential of each

handicapped child commensurate with the opportunity provided nonhandicapped

children.” Rowley, 458 U.S. at 200. Rather, the Act requires that districts offer “a

basic floor of opportunity, [that is,] access to specialized instruction and related

services which are individually designed to provide educational benefit to the


                                            4
handicapped child.” Id. at 201. Additionally, the IDEA requires that school

districts offer placements in the “least restrictive environment” available to meet a

student’s unique needs. See 20 U.S.C. § 1412(a)(5)(A); see also Sacramento City

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

test to determine appropriate level of “mainstreaming”). The district court did not

err in determining that the IEP satisfied these requirements. J.W.’s IEP contained

an adequate statement of his present levels of academic achievement and functional

performance, articulated measurable goals, and was reasonably calculated to

provide an educational benefit in the least restrictive environment.



      AFFIRMED.




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