D.B. Ex Rel. Roberts v. Santa Monica-Malibu Unified School District

606 F. App'x 359

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2015
• Docket: 13-55665
• Status: Unpublished

Opinion

MEMORANDUM *

Santa Monica-Malibu Unified School District appeals the district court’s final order awarding D.B. reimbursement for the cost of tuition at the Westview School for the 2010-11 school year, related educational expenses and attorney’s fees and costs. We have jurisdiction under 28 U.S.C. § 1291, and we áffirm.

1. The District argues D.B. did not allege in her administrative complaint that the District’s failure to include D.B.’s parents at the June 8, 2010 meeting was a procedural violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. The District has waived this argument by failing to raise it in the district court. See in re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir.2010).

2 The district court properly concluded the District’s failure to include D.B.’s parents at the June 8 meeting was a procedural violation of the IDEA. The IDEA’S implementing regulations require that parents participate in meetings concerning the formulation of an Individualized Education Program (IEP) and the educational placement of their child. See 34 C.F.R. ■§ 800.501(b). An agency can make a decision without the parents only if it is unable to obtain their participation, which was not the case here. See id. § 300.501(c)(4); Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 317 F.3d 1072, 1078 (9th Cir.2003) superseded on other grounds by 20 U.S.C. § 1414(d)(1)(B).

The District has not shown that it was required to meet before the end of the 2009-10 school year to formulate an IEP for the 2010-11 school year. Therefore, it was not faced with “the situation of complying with one procedural requirement of the IDEA or another.” Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1046 (9th Cir.2013).

3. The district court properly concluded the procedural violation denied D.B. a free appropriate public education in the 2010-11 school year. See Doug C., 720 F.3d at 1044-47; Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 892 (9th- Cir.2001). “Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA.” Amanda J., 267 F.3d at 892. Proceeding without the child’s parents cannot be justified by the scheduling unavailability of District employees; the attendance of parents at IEP Team meetings “must take priority over other members’ attendance.” Doug C., 720 F.3d at 1045; see also Shapiro, 317 F.3d at 1078 (holding a school district may not “simply prioritize! ] its representatives’ schedules over that of [the] parents”). Furthermore, even if D.B.’s parents already had decided to enroll D.B. at the Westview School, their exclusion was not permissible. See Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1055 (9th Cir.2012) (“[T]he IDEA, its implementing regulations, and our case law all emphasize the importance of parental involvement and advocacy, even when the parents’ preferences do not align with those of the educational agency.”).

AFFIRMED.

* This disposition is not appropriate for publication ánd is not precedent except as provided by 9th Cir. R. 36-3.