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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Madeline P. and Rex P., on behalf of their minor son, Manuel P. v. Anchorage School District (12/9/2011) sp-6623

Madeline P. and Rex P., on behalf of their minor son, Manuel P. v. Anchorage School District (12/9/2011) sp-6623

        Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 
        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

MADELINE P. and REX P.,                          ) 
on behalf of their minor son,                    )   Supreme Court Nos. S-13542/13561 
MANUEL P.,                                       ) 
                                                 )   Superior Court No. 3AN-08-05037 CI 
                       Appellants and            ) 
                       Cross-Appellees,          ) 
                                                 )   O P I N I O N 
        v.                                       ) 
                                                 )   No. 6623 - December 9, 2011 
ANCHORAGE SCHOOL DISTRICT,                       ) 
                                                 ) 
                       Appellee and              ) 
                       Cross-Appellant.           ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Anchorage, Jack Smith, Judge. 

               Appearances:     Sonja D. Kerr, Public Interest Law Center of 
               Philadelphia, Philadelphia, Pennsylvania, for Appellants and 
               Cross-Appellees.      Bradley D. Owens and Cheryl Mandala, 
               Jermain, Dunnagan & Owens, P.C., Anchorage, for Appellee 
               and Cross-Appellant. 

               Before:    Carpeneti,   Chief   Justice,   Winfree,   Christen,   and 
               Stowers, Justices.    [Fabe, Justice, not participating.] 

               PER CURIAM. 

I.       INTRODUCTION 

               Parents    challenged    a  school   district's  actions  regarding    their  child's 

educational program under the Individuals with Disabilities Education Act (IDEA).                A 

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hearing   officer   found   an   IDEA   violation   but   awarded   less   compensatory   education 

services for the child than the parents requested.   On appeal, the superior court affirmed 

the IDEA violation finding and the compensatory education award.  The parents appeal, 

arguing   that   more   compensatory   education   services   should   have   been   awarded;   the 

school district cross-appeals, arguing that no compensatory education services should 

have   been   awarded.      We   affirm   the   superior   court's   findings   regarding   the   school 

district's   violation   of   the   IDEA's   procedural   and   substantive   requirements   and   the 

compensatory education award. 

II.     BACKGROUND 

        A.      Overview Of The IDEA 

                Under the IDEA federal funding is available to states providing children 

with    disabilities  a  "free  appropriate    public   education."1    The    IDEA    defines   "free 

appropriate public education" as publicly funded "special education and related services" 

meeting     the   state's  educational    standards    and   "provided    in  conformity     with   the 

individualized education program."2          An individualized education program (IEP) is a 

written statement documenting a child's present functioning, special education needs, 

annual   goals,   program   modifications,   and   other   matters.3    An   IEP   team,   which   can 

include the child's parents, teachers, school district representatives, appropriate experts, 

and the child, should meet "not less frequently than annually" to develop, review, and 

        1       20 U.S.C.  1412(a) (2006); see Bickford v. State, Dep't of Educ. & Early 

Dev., 155 P.3d 302, 304 (Alaska 2007) (Bickford). 

        2       20 U.S.C.  1401(9) (2006); see Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 

187-89 (1982) (discussing "free appropriate public education" as defined in Education 
of the Handicapped Act, 20 U.S.C.  1401 (1976), IDEA's precursor). 

        3       20 U.S.C  1414(d)(1)(A)(i) (2006). 

                                                  -2-                                           6623
 

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revise    an   IEP.4   The    IDEA     also   requires    schools   to  provide     the  least  restrictive 

environment by ensuring "to the maximum extent appropriate, children with disabilities 

. . . are educated with children who are not disabled."5 

                 The IDEA requires participating states and their local educational agencies 

to   comply     with   both    its  procedural    and   substantive     provisions.6     One    procedural 

component requires an educational agency to provide parents "[w]ritten prior notice" 

whenever it proposes or refuses to initiate or change "the provision of a free appropriate 

public education to the child."7        But a procedural failure violates the IDEA "only when 

. . . [it] 'result[s] in the loss of educational opportunity or seriously infringe[s] the parents' 

opportunity      to  participate    in  the  IEP   formation     process.'    "8  Substantively,      a  free 

        4        Id.  1414(d)(1)(A)(i), (d)(1)(B), (d)(4)(A)(i). 

        5        20 U.S.C.  1412(a)(5). 

        6        20 U.S.C.  1412, 1414; Rowley, 458 U.S. at 206-07; Seattle Sch. Dist., 

No. 1 v. B.S., 82 F.3d 1493, 1498-99 (9th Cir. 1996). 

        7        20 U.S.C.  1415(b)(3) (2006); accord 34 C.F.R.  300.503 (2008).  The 

prior   written   notice   must   include,   among   other   things   a   description   of   the   agency's 
proposed or refused action; an explanation of why the agency proposed or refused the 
action; "a description of each evaluation procedure, assessment, record, or report" on 
which   the   proposal   or   refusal   is   based;   notice   that   the   IDEA   provides   parents   with 
procedural   safeguards   and        advice   on   how    to  learn   more   about   the   IDEA     and   its 
safeguards; "a description of other options considered by the IEP [t]eam and the reason 
why   those   options   were   rejected";   and   a   description   of   the   factors   relevant   to   the 
proposal or refusal.      20 U.S.C.  1415(c)(1). 

        8        R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th 

Cir. 2007) (quoting W.G. v. Bd. of Trs. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 
1484 (9th Cir. 1992)); see also Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 589 (9th 
Cir.    1992)    ("Of   course,    not   every   procedural     flaw    will  give   rise  to   a  right  of 
reimbursement."); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990) 
                                                                                            (continued...) 

                                                    -3-                                               6623
 

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appropriate   public   education   is   provided   under   the   IDEA   if   the   educational   agency: 

"(1) addresses the child's unique needs; (2) provides adequate support services so the 

child can take advantage of the educational opportunities"; and (3) follows the IEP.9                But 

failure to follow an IEP does not violate the IDEA unless the failure is material, meaning 

"there is more than a minor discrepancy between the services provided to a disabled child 

and those required by the IEP."10 

                Parents may challenge "any matter relating to . . . the provision of a free 

appropriate public education" for their child, whether procedural or substantive.11  Unless 

the educational agency and the parents agree otherwise, the child "remain[s] in the then- 

current educational placement" (a "stay put") during the pendency of the challenge.12  The 

IDEA      allows   states  to  develop    specific   procedures    for   challenges,    but  provides    a 

framework of procedural safeguards.13 

        8       (...continued) 

("Before an IEP is set aside, there must be some rational basis to believe that procedural 
inadequacies   compromised   the   pupil's   right   to   an   appropriate   education,   seriously 
hampered the parents' opportunity to participate in the formulation process, or caused 
a deprivation of educational benefits."). 

        9       Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 893 (9th Cir. 

1995) (citing Rowley, 458 U.S. at 188-89). 

        10      Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 815 (9th 

Cir. 2007). 

        11      20 U.S.C.  1415(b)(6)(A). 

        12      Id.  1415(j). 

        13      Id.      1415(a)-(o);  see   AS   14.30.193   (allowing   parents   to   request   due 

process    hearing    and   appeal   result   pursuant   to  AS   44.62.560);   AS        14.30.272-.278 
(providing procedural safeguards and directing school districts to ensure identification 
                                                                                         (continued...) 

                                                  -4-                                             6623
 

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                In Bickford v. State, Department of Education & Early Development, we 

described two distinct methods for alleging an IDEA violation.14                First, any interested 

person or group may "initiate investigations of compliance with the IDEA by submitting 

an informal complaint" to the State of Alaska, Department of Education (Department).15 

Upon      receiving    a  complaint,     the   Department      conducts    an   independent      on-site 

investigation, reviews additional information submitted by the complainant, and issues 

a written decision within 60 days, supported by factual findings and conclusions of law, 

determining whether an IDEA violation occurred.16              Second, parents can request a due 

process  hearing.17    These hearings are intended to be expedited "formal adjudicatory 

proceedings in which parents and children have the rights to counsel, to present evidence, 

and to call, confront, and compel the attendance of witnesses."18             Due process hearings 

"are   designed   to   focus   on   disputes   concerning   discrete   decisions   involving   specific 

children and the children's parents."19 

        13      (...continued) 

of children with disabilities, least restrictive environments, and individualized education 
programs, respectively). 

        14      155 P.3d 302, 304 (Alaska 2007). 

        15      Id. at 305 (citing 34 C.F.R.  300.660-.662 (1998)) (current version at 34 

C.F.R.  300.151-.153 (2010))). 

        16      Id. 

        17      Id. at 304-05. 

        18      Id. at 304.  But see J.P. v. Anchorage Sch. Dist., 260 P.3d 285, 288 (Alaska 

2011) ("The due process hearing began on February 5, 2008, but it was not completed 
until July 18, 2008 - after P.P. completed second grade."). 

        19      Bickford, 155 P.3d at 304. 

                                                  -5-                                            6623
 

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                 A parent may challenge a hearing officer's due process hearing decision by 

filing a civil suit in federal or state trial court.20 

                 Unlike   typical   administrative   appeals,   in   an   appeal   from   a   due   process 

hearing the IDEA directs the court to review the evidence independently, applying a 

"modified de novo" standard to questions of fact and a de novo standard to questions of 

law.21    The   Ninth   Circuit   has   observed   that   "judicial   review   in   IDEA   cases   differs 

substantially from judicial review of other agency actions, in which courts generally are 

confined to the administrative record and are held to a highly deferential standard of 

review."22 

        20       AS     14.30.193(f)      ("A   hearing     officer's    decision    under    this   section 

[governing due process hearings for children with disabilities] is a final administrative 
order, subject to appeal to the superior court for review . . . ."). 

        21       20 U.S.C  1415(i)(2)(C)(i)-(iii) ("In any [civil] action brought under this 

paragraph, the court (i) shall receive the records of the administrative proceedings; (ii) 
shall hear additional evidence at the request of a party; and (iii) basing its decision on the 
preponderance        of  the   evidence,    shall   grant   such   relief  as  the   court  determines      is 
appropriate."); see Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 
887-88 (9th Cir. 2001) ("We review de novo the question of whether a school district's 
proposed       individualized      education     program      provided     a   free   appropriate     public 
education   .   .   .   .   Complete   de   novo   review,   however,   is   inappropriate.   .   .   .   Because 
Congress intended states to have primary responsibility of formulating each individual 
child's education, we must defer to their "specialized knowledge and experience" by 
giving   "due   weight"   to   the   decisions   of   the   state's   administrative   bodies."   (quoting 
Rowley, 458 U.S. at 206-08)); P.N. v. Greco, 282 F. Supp. 2d 221, 235 (D.N.J. 2003) 
("In reviewing administrative decisions in IDEA cases, a district court applies a de novo 
standard to questions of law.          Administrative findings of fact are subject to a modified 
de novo standard of review . . . ." (internal citations omitted)). 

        22       Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471-72 (9th Cir. 1993); 

see also id. (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988) ("[T]he 
district court's authority under  [1415(i)] to supplement the record below with new 
                                                                                             (continued...) 

                                                     -6-                                               6623
 

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        B.      Facts And Proceedings 
                Manuel   qualifies   for   special   education   services.23    In   late   August   2006 

Manuel's   IEP   team   met   to   update   his   IEP   for   the   upcoming   year   at   a   school   in   the 

Anchorage School District (ASD).           The IEP provided for 27.5 hours of weekly special 

education and related services, including three hours of weekly writing instruction in the 

general    education     classroom.     That    year  Manuel     began    second   grade    in  Mardena 

Williams's general education classroom.  Special education teacher Lisa LoSordo-Santo 

provided Manuel's writing instruction in Williams's classroom.  Manuel's IEP team met 

at least monthly and as part of the team his parents, Madeline and Rex, were entitled to 

attend the meetings. 

                In October ASD learned that Williams would take previously unscheduled 

family leave for much of November.             After an October 24 IEP meeting, but before an 

October 31 IEP   meeting, LoSordo-Santo told Madeline that the rest of the IEP team 

wanted Manuel to receive writing instruction in LoSordo-Santo's resource room, rather 

than     the  general     classroom,     during    Williams's     family    leave.     Madeline      told 

LoSordo- Santo she "wasn't happy" about the move.   Madeline attended the October 31 

        22      (...continued) 

evidence, as well as Congress's call for a decision based on the 'preponderance of the 
evidence,' plainly suggests less deference than is conventional [in the review of agency 
actions.]"); Town of Burlington v. Dep't of Educ., 736 F.2d 773, 791 (1st Cir. 1984) 
("Congress intended courts to make bounded, independent decisions - bounded by the 
administrative record and additional evidence, and independent by virtue of being based 
on a preponderance of the evidence before the court . . . ."), aff'd sub nom. Sch. Comm. 
v. Dep't   of   Educ.,   471   U.S.   359   (1985));  Cnty.   of   San   Diego   v.   Cal.   Special   Educ. 
Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996) ("At bottom, the court itself is free 
to determine independently how much weight to give the administrative findings in light 
of the enumerated facts."). 

        23      We use pseudonyms for all family members. 

                                                  -7-                                             6623
 

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meeting, but "[t]here was no discussion about making the decision" to move Manuel's 

writing instruction - it was her understanding that the decision had already been made. 

                On   November   3,   Debora   Schofield,   the   school's   Department   Chair   for 

Special Education, emailed a summary of the October 31 meeting to Madeline, Rex, and 

the   other   IEP   team   members,   noting   that   "[w]hen   reviewing   the   agenda,   [Madeline] 

requested that the meeting focus on developing a plan to be implemented in [Williams's] 

absence (November 8 to 28, 2006)."  ASD never provided formal "prior written notice" 

about the proposed move of Manuel's writing instruction from the general classroom to 

the resource room. 

                Although     Williams     returned   around    November      28  and   Schofield    had 

understood that "upon [Williams's] return, [Manuel] would go back into the [general 

education] classroom for writing," Manuel's writing instruction continued in the resource 

room.   LoSordo-Santo later testified that Manuel's continued placement in her resource 

room was "on a trial basis." 

                Nine   days   before   a   January   19,   2007   meeting,   Schofield   circulated   an 

agenda suggesting the IEP team discuss Manuel's writing instruction location, specifically 

whether to amend the IEP or return the instruction to the regular classroom as stated in 

the current IEP.     Notes taken during the meeting indicate Madeline participated in the 

discussion and expressed that she wanted an "inclusionary environment" for Manuel.  The 

meeting notes reflect the IEP team amended Manuel's IEP to allow the instruction in 

either   the   general   education   or   resource   room.   After   the   meeting,   LoSordo-Santo 

prepared a "prior written notice" describing the IEP changes. Madeline later testified that 

she did not agree to that amendment. 

                The IEP team subsequently met on February 16, March 9, April 11, and 

April 13, 2007.     During the March meeting the IEP team considered moving Manuel's 

                                                 -8-                                            6623
 

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writing   instruction   exclusively   to   the   general   education   classroom.     LoSordo-Santo 

prepared a "prior written notice" after the March meeting explaining why the IEP was not 

changed.   A "prior written notice" issued on April 17 indicated the IEP team had rejected 

"amending   the   IEP   to   change   the   '[l]ocation'   of   writing   to   the   [general]   classroom 

exclusively." 

                Madeline and Rex requested a due process hearing in April 2007.                   They 

alleged: 

                In the fall of 2006, [ASD] changed the placement of our son 
                from the regular classroom to the resource room without prior 
                written notice.  In January, we disagreed with a [prior written 
                notice] on the grounds that it was not based on [Manuel's] 
                needs.   Rather it was based on available personnel.          The IEP 
                team   continued to try to reach a consensus through March 
                2007.   In March 2007, the principal, Glen Nielsen interfered 
                in   the   IEP   process   and   would   not   allow   the   IEP   team   to 
                complete an amendment[] that had finally met consensus. 

Madeline and Rex later rephrased their allegations.             They focused on the lack of prior 

written notice and proposed a new solution to establish a "stay put, and get [Manuel] back 

in the classroom for writing with the [special education teacher] teaching him in his 

regular education classroom."         ASD responded that it had complied with the IEP, but 

agreed to provide writing instruction with the special education teacher in the general 

education classroom for the remainder of the school year. 

                A due process hearing commenced in June and concluded in November 

2007.  In January 2008 a hearing officer ruled that ASD's only IDEA violation occurred 

when Manuel's instruction continued in the resource room after Willams returned from 

leave.  The hearing officer ruled that ASD's procedural failures to provide prior written 

notice before moving Manuel's writing instruction to the resource room in November 

2006 or amending Manuel's IEP in January 2007 were not IDEA violations because the 

                                                  -9-                                            6623
 

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failures neither caused Manuel to lose educational opportunities nor created a significant 

restriction or infringement on his parents' opportunity to participate in the IEP formation 

          24 
process.      The hearing officer declined to consider a new argument Manuel's parents 

raised at the hearing, that ASD's practice of sending "prior written notice" of IEP changes 

after they had already been implemented violated the IDEA, because they did not raise 

the issue in the due process complaint.          But the hearing officer found that by failing to 

follow Manuel's IEP after Williams returned, ASD denied Manuel a free appropriate 

public education and thus violated the IDEA's substantive requirements during the period 

between Williams's return in late November 2006 and the January 2007 IEP amendment. 

The   hearing   officer   awarded   Manuel   15   hours   of   writing   instruction   in   the   general 

education classroom as compensatory education for the substantive IDEA violation. 

                The     parents    appealed     to   the   superior    court.     The     superior court 

independently found that ASD's procedural failure to provide prior written notice before 

moving Manuel's writing instruction or amending Manuel's IEP did not constitute IDEA 

violations.  The superior court also upheld the hearing officer's ruling that a subsequent 

IDEA violation had occurred and affirmed the hearing officer's compensatory education 

award.     In upholding these rulings, the superior court deferred to the hearing officer's 

"thorough and careful summary" of the evidence and explanation supporting the award. 

The superior court agreed with the hearing officer that ASD's practice of sending "prior 

written notice" after IEP changes had already been implemented was not raised in the due 

process complaint and therefore was not properly before the hearing officer or the court, 

but suggested that if it were, the court "would find this procedure illogical and not in 

        24      See note 8, above, and accompanying text; 20 U.S.C.  1415(f)(3)(E)(ii) 

(describing     limited   circumstances      when    hearing    officer  may    find  free  appropriate 
education denial on procedural grounds). 

                                                  -10-                                             6623 

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compliance with the law."  The superior court also concluded that it could not hear a new 

claim    Manuel's     parents    raised,  that   ASD    had   not   provided    the   least  restrictive 

environment for Manuel, because it was not raised in the due process complaint and the 

hearing officer had not considered it. 

                Manuel's parents appeal, arguing that:  (1) ASD's policy of providing prior 

written notice after an IEP change violates the IDEA; (2) Manuel was not placed in the 

least   restrictive   educational   environment;   (3)   ASD   violated   the   IDEA   by   failing   to 

provide prior written notice before moving Manuel's writing instruction to the special 

education classroom; (4) ASD violated the IDEA by failing to provide prior written notice 

before amending Manuel's IEP in January 2007; and (5) Manuel deserved compensatory 

education for the entire time he received instruction in the resource room.               ASD cross- 

appeals, arguing it did not violate the IDEA and Manuel should not have been awarded 

any compensatory education. 

III.    DISCUSSION 

        A.      Standard Of Review 

                Our review of administrative proceedings generally follows the rule stated 

in Bickford : 

                        When the superior court acts as an intermediate court 
                of   appeal   in  an   administrative    matter,   we   independently 
                review     the  decision    of  the  administrative     agency.      For 
                questions of fact, we apply a "substantial evidence" standard, 
                asking whether an agency's findings are supported by such 
                relevant    evidence    as  a  reasonable    mind    might    accept   to 
                support a conclusion.  For issues of law not involving agency 
                expertise, such as statutory interpretation and constitutional 
                issues, we utilize a "substitution of judgment" or "independent 

                                                 -11-                                            6623
 

----------------------- Page 12-----------------------

                judgment" standard. [25] 

Manuel's parents argue the Bickford standard of review applies to   our review of the 

superior court's decision.       We disagree. 

                Bickford      concerned     an  administrative      agency's    rejection    of  an  IDEA 

complaint sent by a parent to the Department and the school district.26              The school district 

appointed   a   hearing   officer,   while   the   Department   turned   the   complaint   over   to   the 

attorney general's office, which requested clarification.27             The parent's response to the 

attorney general's office invoked 34 C.F.R.  300.660-.662 (1998), the regulation setting 

forth how a complaint requesting an investigation is made.28                But the parent then stated 

in her response that she would pursue her claim in federal district court.                    The United 

States District Court for the District of Alaska dismissed that case, and the Ninth Circuit 

Court of Appeals ultimately affirmed.29           Meanwhile, the parent filed a second complaint 

with the Department, alleging its handling of her initial complaint violated the IDEA.30 

The   parent   "abandoned   her   request   for   a   due   process   hearing"   during   a   settlement 

conference and none was held.31          An investigator recommended dismissing the parent's 

        25       155 P.3d at 309 (citations and quotation marks omitted). 

        26      Id.   at   304-05.   The   school   district   in  Bickford   was   unsure   whether   the 

complaint was a request for a due process hearing, a request to initiate an investigation, 
or a draft civil complaint.  Id. at 305-06 & n.16. 

        27      Id. at 306. 

        28      Id. at 306-07 & n.17. 

        29      Id. at 307. 

        30      Id. 

        31      Id. at 308. 

                                                   -12-                                              6623
 

----------------------- Page 13-----------------------

complaint   and      requested   that   it   be   resubmitted  in   a   "less   confusing   form."32  The 

Commissioner of Education adopted that recommendation.33                     On appeal, the superior 

court applied the ordinary standard of review for administrative appeals and affirmed the 

dismissal.34    The   parent   appealed,   and   we   applied   the   standard   of   review   discussed 

above.35 

                Bickford 's procedural posture is substantially different from this case.  In 

Bickford, the superior court reviewed an administrative decision to dismiss the parent's 

case on purely procedural grounds.36            Because there was no due process hearing and, 

therefore, no factual findings to review, the IDEA's modified de novo standard of review 

did not apply to the superior court.37          Here the superior court reviewed a due process 

hearing and applied the modified de novo standard of review. 

                We agree with the Ninth Circuit's formulation of this modified de novo 

standard of review:   in an appeal from a due process hearing, we will review the superior 

court's    findings    of  fact  "for   clear  error,  even    if  those  findings    are  based    on  the 

administrative record";38 we will review questions of law de novo;39 and we will review 

        32      Id. 

        33      Id.
 

        34      Bickford v. State, Dep't of Educ., No. 3AN-99-3470 CI (Alaska Super., Oct.
 

4, 2004). 

        35      Bickford, 155 P.3d at 309. 

        36      Id. 

        37      See note 21, above, and accompanying text (discussing modified de novo 

standard). 

        38      Napa Valley, 496 F.3d at 937 (citing Amanda J., 267 F.3d at 887); see Van 

                                                                                          (continued...) 

                                                  -13-                                              6623
 

----------------------- Page 14-----------------------

mixed questions of law and fact de novo, unless factual questions predominate.40                     The 

determination of whether a school   district provided a student free appropriate public 

education is a mixed question of law and fact.41 

        B.      Issues Not Properly Raised 

                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 . . . 

unless the other party agrees otherwise."42            Neither the parents' original due process 

hearing request nor their rephrased request challenged ASD's general practice regarding 

prior   written   notice   or   ASD's   alleged   failure   to   place   Manuel   in   the   least   restrictive 

        38      (...continued) 

Duyn, 502 F.3d at 817; Wartenberg, 59 F.3d at 891 (citing Ash , 980 F.2d at 588); Oberti 
v. Bd. of Educ., 995 F.2d 1204, 1220 (3d Cir. 1993) ("[W]e review the district court's 
decisions regarding whether to adopt the agency fact findings under   the deferential, 
clearly erroneous standard."). 

        39       Van Duyn, 502 F.3d at 817 ("The district court's legal conclusions are 

reviewed de novo."); Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 
82 (2d Cir. 2005) (" '[S]tate hearing officers are not more experienced or expert than 
courts    in  interpreting    federal   statutes   or  the  federal   constitution,'    and,  therefore, 
'deference is not warranted.' "); Wartenberg, 59 F.3d at 891 (citing Union Sch. Dist. v. 
Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)). 

        40      Napa Valley, 496 F.3d at 937 (citing Amanda J., 267 F.3d at 887); Hood 

v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 n.4 (9th Cir. 2007). 

        41      See P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 118 

(2d Cir. 2008) ("Whether the district court correctly applied the IDEA's statutory and 
regulatory provisions to the facts of a particular case is a mixed question of law and fact, 
which we also review de novo."); Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 611 
(8th    Cir.  1997)   ("Whether      a  school   district  has  offered   a  free  appropriate    public 
education      is  a  mixed   question    of  fact   and   law   and   the  district  court's   ultimate 
determination is reviewed de novo."). 

        42      20 U.S.C.  1415(f)(3)(B). 

                                                  -14-                                             6623
 

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environment.43     We, like the superior court, therefore decline to address the issues as not 

preserved below: ASD's practice regarding prior written notice and whether Manuel was 

in the least restrictive environment.44 

        C.	     We Affirm The Superior Court's Findings And Conclusions Regarding 
                The Alleged Violations Of The IDEA's Procedural Requirements. 

                1.	     The temporary move during Williams's absence 

                Manuel's parents allege ASD's failure to provide prior written notice before 

moving   Manuel's   writing   instruction   to   the   special   education   classroom   violated   the 

IDEA.45	  ASD failed procedurally by not providing prior written notice.46               But Manuel's 

        43      Manuel's parents claim their original due process complaint addressed the 

least restrictive environment issue. They state that they "mentioned on several occasions 
that part of [Madeline's] objection to [Manuel] being placed in the special education 
room was that he was not being educated with his peers."   But the complaint's language 
indicates only an objection to the lack of prior written notice.  In a follow-up email to the 
hearing   officer   rephrasing   the   request,   Madeline   discussed   the   lack   of   prior   written 
notice, and concluded "I believe the original complaint stated the same, but maybe using 
different   wording."      She   further   stated   "[s]ince   the   district   changed   the   location   of 
[Manuel's] services without PWN [prior written notice] he is entitled to Due Process." 
(Emphasis       added.)     Neither    the  original   complaint     nor  the  rephrased     allegations 
suggested a claim relating to the least restrictive environment. 

        44      We echo the hearing officer's and superior court's concerns that immediate 

implementation of IEP amendments before issuance of a prior written notice seems to 
negate the "prior" in prior written notice. 

        45      Although free appropriate public education analysis is generally a mixed 

question of law and fact, factual questions predominate in the determination of whether 
a student lost educational opportunity or whether   the   parents lost the opportunity to 
participate.   Therefore we apply the clear error standard of review.  Cf. Napa Valley, 496 
F.3d at 937 & n.1 (describing standard of review for mixed questions of law and fact 
(citing Amanda J., 267 F.3d at 887)). 

        46      See Robb v. Bethel Sch. Dist. No. 403, 308 F.3d 1047, 1049 (9th Cir. 2002) 

                                                                                          (continued...) 

                                                  -15-	                                            6623
 

----------------------- Page 16-----------------------

"IEP progress reports for the second quarter (Oct. - Dec. 2006) show he made some 

progress on his writing goals."       LoSordo-Santo testified that Manuel's entire IEP team 

except Madeline agreed "[t]he environment [in the resource room] was more beneficial" 

to Manuel and that Manuel had difficulty focusing on the writing lessons in the general 

education     classroom.     Although      Madeline     disagreed,    she  acknowledged       that  she 

"respect[ed] all of [the IEP team's] opinions very much" and was "certain [the team was] 

looking after [Manuel's] best interests."         Considering all of the evidence, the superior 

court did not clearly err in finding that Manuel lost no educational opportunity due to his 

temporary placement in the resource room. 

                Nor did the superior court clearly err in finding Manuel's parents maintained 

their opportunity to participate in his education planning during Williams's absence. 

Madeline   "was   fully   informed"   about   the   suggested   move   before   it   occurred.   After 

receiving   oral   notification,   Madeline   attended   and   participated   in   IEP   meetings   on 

October 31 and November 17, 2006.              Even if the team did not ultimately   agree with 

Madeline, she nevertheless had the opportunity to participate in the process. 

                Because   Manuel   lost   no   educational   opportunity   and   Manuel's   parents 

maintained their opportunity to participate in planning his education, ASD's failure to 

provide prior written notice before temporarily moving Manuel's writing instruction to 

the resource room did not violate the IDEA. 

                2.      The January 2007 IEP amendment 

                When     Williams     returned   from   family    leave   in  late  November     2006, 

Manuel's IEP still stated that his writing instruction was to occur in the general education 

        46      (...continued) 

(referring to prior written notice as procedural safeguard); Frazier v. Fairhaven Sch. 
Comm., 276 F.3d 52, 58 (1st Cir. 2002) (same); Birmingham v. Omaha Sch. Dist., 220 
F.3d 850, 853 (8th Cir. 2000) (same). 

                                                 -16-                                           6623 

----------------------- Page 17-----------------------

classroom.     The IEP team did not amend Manuel's IEP to allow writing instruction in 

either the resource room or the general classroom until January 19, 2007. 

                 Manuel's parents implicitly argue that ASD's provision of "prior written 

notice"   on   January   19   after   the   IEP   had   just   been   amended   constituted   a   procedural 

violation of the IDEA.         But Manuel's parents were not deprived of the opportunity to 

participate in Manuel's education planning as a result of the untimely prior written notice. 

First,   Madeline   knew   amending   Manuel's   IEP   to   reflect   the   new   writing   instruction 

location would be discussed because Schofield listed it on an agenda that was sent nine 

days prior to the meeting.  Second, Madeline attended the January 19 meeting when the 

IEP was amended and participated in the discussion.                Even though Madeline ultimately 

did    not  agree   with   the   IEP   team's    conclusion     to  amend    the   IEP,   she  had   ample 

opportunity to prepare for the discussion and express her position. 

                 There    is  no  evidence     in  the  record   that   Manuel     lost  any  educational 

opportunity because of ASD's failure to issue prior written notice.  Manuel's parents do 

not   point   to   any   facts   suggesting   the   IEP   would   have   been   different,   thus   changing 

Manuel's   educational   opportunities,   had   ASD   issued   prior   written   notice   before   the 

meeting. 

                 Therefore   the   superior   court   did   not   clearly   err   in   finding   that   ASD's 

procedural failure to provide prior written notice before changing Manuel's IEP did not 

violate the IDEA. 

        D.	     We Affirm The Superior Court's Findings And Conclusions Regarding 
                 The Alleged Violations Of The IDEA's Substantive Requirements And 
                 Compensatory Education Award. 

                 The superior court upheld the hearing officer's determination that failing to 

return Manuel to the general education classroom after Williams returned was a denial of 

free   appropriate     public   education     and   the  hearing    officer's   award    of  15   hours   of 

                                                   -17-	                                             6623
 

----------------------- Page 18-----------------------

compensatory   writing   instruction   in   the   general   education   classroom.           Both   parties 

challenge these rulings. 

                 1.      The superior court's standard of review 

                 As   a   threshold   matter,   in   upholding   the   hearing   officer's   decision   the 

superior court stated that it "reviews the hearing officer's order for abuse of discretion." 

However, it is clear from the context of the superior court's entire ruling that the court 

properly applied the modified de novo standard.               The superior court initially described 

the proper standard of review as a modified de novo standard requiring an independent 

review of the evidence while according some deference to the expertise of the hearing 

officer: 

                         The standard of judicial review under the IDEA is as 
                 follows.    The court's decision is based on the preponderance 
                 of the evidence. The standard for review of a hearing officer's 
                 decision under the IDEA is much different from the standard 
                 used in other administrative reviews. Judicial review in IDEA 
                 cases differs substantially from judicial review of other agency 
                 actions     in  which     courts    generally    are   confined     to   the 
                 administrative   record   and   are   held   to   a   highly   deferential 
                 standard of review. . . . 

                         However,   complete   de   novo   review   is   inappropriate 
                 because      Congress     intended     states   to   have    the  primary 
                 responsibility       of   formulating       each    individual      child's 
                 education, and we must defer to their specialized knowledge 
                 and experience by giving due weight to the decisions of the 
                 states'   administrative   bodies.      Congress   requires   courts   to 
                 apply a modified de novo standard when reviewing agency 
                 disposition under the IDEA.  This modified de novo standard 
                 requires that a court must make an independent review of the 
                 evidence,   but   in   so   doing,   it   must   give   due   weight   to   the 
                 administrative proceedings and afford some deference to the 
                 expertise     of    the   hearing     officer    and    school    officials 
                 responsible for the child's education. 

                                                   -18-                                               6623
 

----------------------- Page 19-----------------------

The   superior   court   then   discussed   case   law   describing   the   relationship   between   the 

modified de novo standard and deference to administrative expertise: 

                         The Ninth Circuit Court of Appeals has stated, ["T]he 
                court   in   recognition   of   the   expertise   of   the   administrative 
                agency must consider the findings carefully and endeavor to 
                respond to the hearing officer's resolution of each material 
                issue.  After such consideration, the court is free to accept or 
                reject the findings in part or in whole.["]  [Citing Parents of 
                Student W. v. Puyallup School District47]. 

                         Deference is particularly appropriate where the hearing 
                officer's review has been thorough and careful.  [Citing Park 
                ex    rel.  Park   v.  Anaheim     Union    High    School    District48]. 

                Finding the hearing officer's determinations were thorough 
                and careful, where the hearing lasted over eight days, and the 
                officer    was    engaged     in  the  hearing    and   questioned     the 
                witness[es]       to  ensure     the   record    contained     complete 
                information and that he understood the testimony, the [N]inth 
                 [C]ircuit [held] that deference should be given to that hearing 
                officer's review. 

                         And   again   in   [Matrejek   v.   Brewster   Central   School 
                District49] the [District Court for the Southern District of New 

                York] stated, the officer's decision is thorough and careful 
                and therefore owed deference where it explores the evidence 
                thoroughly, makes detailed factual findings that are supported 
                by the evidence, and cogently explains the reasons for the 
                conclusions reached, and is well supported by citations to the 
                record. 

                Finally, the superior court took care to use the same language approved of 

in  these cases in upholding the hearing officer's finding of a substantive IDEA violation 

        47      31 F.3d 1489, 1494 (9th Cir. 1994) (quoting Gregory K. v. Longview Sch. 

Dist. No. 3, 811 F.2d 1307, 1311 (9th Cir. 1987)). 

        48      464 F.3d 1025, 1031 (9th Cir. 2006). 

        49      471 F. Supp. 2d 415, 418 (S.D.N.Y. 2007). 

                                                   -19-                                             6623 

----------------------- Page 20-----------------------

and award of compensatory education.  The court first summarized the hearing officer's 

ruling: the hearing officer determined (1) the failure to return Manuel to the regular 
education classroom after Williams returned to school was a violation of his IEP;50 (2) 

the violation constituted a denial of free appropriate public education because Manuel's 

IEP included several behavioral goals that were predicated on his inclusion in the regular 

education room, and by denying him access to the regular classroom for three hours per 

week Manuel was denied an educational opportunity to improve on these goals; (3) the 

violation lasted from Williams's return from family leave in November 2006 until the 

IEP amendment in January 2007, a period of approximately six weeks; and (4) based on 

this violation, Manuel was entitled to 15 hours of compensatory education based on his 

removal from the regular   classroom for three hours per week for approximately six 

weeks.    The superior court then ruled: 

                         The    hearing    officer's   decision    here   is  entitled  to 
                deference.      It   was   not   an   abuse   of   discretion   because   the 
                award  accorded   with   the   purposes   of   the   IDEA   and   was 
                adequately explained and supported by the record. 

                         The   hearing   officer's   [findings]   of   fact,   which   are 
                approximately        15  pages    long,   are  entitled   to  deference, 
                because      they   are  a   thorough     and    careful   summary      of 
                approximately        14  days   of  hearings    and   2500    [pages]   of 
                exhibits.    The   hearing   officer   explained   why   he   chose   15 
                hours and why the award was necessary in light of the ASD's 
                failure to provide FAPE [free appropriate public education] 
                to [Manuel].     (Emphasis added). 

                In short, the superior court correctly identified the unusual standard of 

review that it was required to apply in reviewing the hearing officer's decision and cited 

        50      The     hearing   officer   ruled   that   ASD   was   not   out   of   compliance    with 

Manuel's IEP until Williams's return because the initial move of his writing instruction 
to the resource room was "intended as a temporary measure, implemented on short notice 
due to Ms. Williams' family emergency." 
                                                   -20-                                               6623 

----------------------- Page 21-----------------------

persuasive authority as to the proper level of deference to apply when confronted with 
a   "thorough   and   careful"51    decision   that   contains   "detailed   factual   findings   that   are 

supported by the evidence"52         and "cogently explains the reasons for the conclusions 

reached."53     The   court   then   found   that   the   hearing  officer's   decision   shared   these 

attributes and affirmed.       We therefore conclude the superior court's opening statement 

that it was reviewing the hearing officer's decision for an abuse of discretion was an 

unfortunate but immaterial misstatement. 

                2.      Material failure to comply with IEP 

                ASD argues that Manuel should not receive any compensatory education 

because moving Manuel's writing instruction to the resource room did not constitute a 

material failure to comply with his IEP. "A material failure occurs when there is more 

than a minor discrepancy between the services a school provides to a disabled child and 
the services required by the child's IEP."54        "[T]he materiality standard does not require 

that the child suffer demonstrable educational harm in order to prevail."55 

        The hearing officer rejected ASD's argument that its failure to return Manuel to 

the general education classroom for writing instruction was not material, reasoning: 

                the   process   during   this   interim   period   was   tainted   by   the 
                manner in which the team first characterized the change of 
                location as a temporary measure, based entirely on the need 
                to adjust for   Ms. Williams' absence, and then appeared to 
                shift to other justifications for the change after her return to 
                school. 

        51      Park, 464 F.3d at 1031. 

        52      Matrejek, 471 F. Supp. 2d at 418. 

        53      Id. 

        54       Van Duyn, 502 F.3d at 822. 

        55      Id. 

                                                  -21-                                               6623 

----------------------- Page 22-----------------------

We agree.     ASD agreed to provide Manuel writing instruction among his peers in the 

general education classroom, temporarily moved him to the resource room due to staffing 

issues,   and   then   unilaterally   decided   to   prolong   the   temporary   adjustment   without 

amending his IEP.  Under these circumstances, this failure to comply with Manuel's IEP 

was more than a "minor discrepancy." 

               Accordingly, we affirm the superior court's ruling that ASD's failure to 

return Manuel to the general education classroom after Williams returned to school in 

violation of his IEP was a denial of free appropriate public education. 

               3.      Compensatory education award 

               Manuel's      parents   argue    that  Manuel     should   receive    78  hours    of 

compensatory education for the entire time he received writing instruction in the resource 

classroom, even after the January 2007 IEP amendment.              They argue that if ASD had 

complied with the prior written notice requirement, Manuel would have been in the 

general education classroom for those 78 hours.  Because we have affirmed the superior 

court's ruling that ASD's only IDEA violation was its failure to comply with Manuel's 

IEP during the six-week period after Williams returned from family leave in November 

2006 until his IEP was amended in January 2007, we also affirm the superior court's 

ruling that the compensatory education award was properly limited to this time period. 

IV.     CONCLUSION 

               We AFFIRM the superior court's ruling that ASD did not violate the IDEA 

by failing to provide prior written notice before moving Manuel's writing instruction or 

amending his IEP.  We also AFFIRM the superior court's ruling that ASD violated the 

IDEA by failing to comply with Manuel's IEP from November 2006 until the January 

2007 amendment and AFFIRM the award of 15 hours of compensatory education. 

                                               -22-                                           6623
 
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