PAGE 1 - OPINION AND ORDER IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGONFOREST GROVE SCHOOL DISTRICT, No. CV 04-331-MOPlaintiff-Appellee,OPINION AND ORDER v.T.A.,Defendant-Appellant.

MOSMAN, J.,

Plaintiff-Appellee Forest Grove School District ("District") brought this suit seeking toreverse the ruling of the hearing officer that the District was liable for the costs incurred insending T.A. to Mt. Bachelor Academy ("MBA") under the Individuals with DisabilitiesEducation Act ("IDEA"), 20 U.S.C. § 1400

et seq.

Upon initial consideration, this Court orderedthat the decision of the hearing officer be reversed because 20 U.S.C. § 1412(a)(10)(C) limitedthe right to reimbursement under the IDEA, (Op. & Order (#26) 18-21), and T.A. was ineligibleto receive reimbursement under general principles of equity because this was not an "extreme"case where the "need for special education was obvious to school authorities and the parents wereuninformed or unable to request services," (

Id.

at 25 (citing

Greenland Sch. Dist. v. Amy N.

, 358F.3d 150, 160 n.8 (1st Cir. 2004))).The Ninth Circuit reversed and remanded because § 1412(a)(10)(C) does not apply tostudents who have never received special education and I improperly considered the standards of

Case 3:04-cv-00331-MO Document 73 Filed 12/08/2009 Page 1 of 8

PAGE 2 - OPINION AND ORDER § 1412(a)(10)(C) and applied the wrong legal standard in determining whether reimbursementwas proper under general principles of equity pursuant to § 1415(i)(2)(C).

Forest Grove Sch. Dist. v. T.A.

(Forest Grove II)

, 523 F.3d 1078, 1087-88 (9th Cir. 2008). The United StatesSupreme Court agreed, holding that § 1412(a)(10)(C) does not provide a categorical bar toreimbursement for students who have not "previously received special education and relatedservices under the authority of a public agency."

Forest Grove Sch. Dist. v. T.A. (Forest Grove III)

, 129 S. Ct. 2484, 2488 (2009) (quoting 20 U.S.C. § 1412(a)(10)(C)(ii)).When a court or hearing officer concludes that a school district failed to provide a[free and appropriate public education] and the private placement was suitable, itmust consider all relevant factors, including the notice provided by the parents andthe school district's opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child's private education iswarranted.

Id.

at 2496.On remand, I hold that the equities do not support reimbursement in this case andtherefore REVERSE the decision of the hearing officer.

BACKGROUND

There is no need to include a recitation of the facts because this Court laid out the factsof this case in great detail in the previous Opinion and Order. (

See

Op. & Order (#26) 2-14.)Both the Ninth Circuit and the Supreme Court have also examined the facts extensively.

See Forest Grove III

, 129 S. Ct. at 2488-89;

Forest Grove II

, 523 F.3d at 1081-83. Facts relevant tothe weighing of the equities will be cited as needed below.////

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PAGE 3 - OPINION AND ORDER

STANDARD OF REVIEW

T.A. argues that I must defer to the decision of the hearing officer unless she abused her discretion. However, the Ninth Circuit has clearly stated that such deference to the hearingofficer is improper in cases brought under the IDEA.

See Forest Grove II

, 523 F.3d at 1084-85(stating "no case supports T.A.'s contention that we review

the hearing officer's decision

for abuse of discretion"). "The traditional test of findings being binding on the court if supported bysubstantial evidence, or even a preponderance of the evidence, does not apply."

Ash v. LakeOswego Sch. Dist., No. 7J

(Ash II)

, 980 F.2d 585, 587 (9th Cir. 1992). The district court "mustconsider the findings carefully . . . [but a]fter such consideration, the court is free to accept or reject the findings in part or in whole."

Id.

at 587-88.As in my previous Opinion and Order, I accept the facts as found by the hearing officer and give the legal conclusions of the hearing officer substantial deference. However, I exercisemy independent judgment based on a preponderance of the evidence as to whether the legalconclusions reached by the hearing officer are supported by the facts.

See Capistrano Unified Sch. Dist. v. Wartenberg

, 59 F.3d 884, 892 (9th Cir. 1995).

DISCUSSION

The IDEA provides that a district court, "basing its decision on the preponderance of theevidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. §1415(i)(2)(C)(iii). A district court must use general principles of equity and "consider allrelevant factors in determining whether to grant reimbursement and the amount of reimbursement" pursuant to § 1415(i)(2)(C).

Forest Grove II

, 523 F.3d at 1088-89;