Miguel Avila v. Spokane School District 81

FILED
NOT FOR PUBLICATION
MAR 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA AVILA and MIGUEL No. 14-35965
AVILA,
D.C. No. 2:10-cv-00408-EFS
Plaintiffs-Appellants,

v. MEMORANDUM*

SPOKANE SCHOOL DISTRICT 81,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding

Argued and Submitted December 5, 2016
Seattle, Washington

Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.

The Avilas, parents of a student in Spokane School District 81, appeal the

district court’s order dismissing their claims that the District violated the

Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1400 et seq.

The Avilas argue that the District violated the IDEA by failing to assess their child,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
G.A., for dyslexia and dysgraphia in a 2010 reevaluation of G.A.’s special

education needs.1 The district court concluded that the District’s 2010 reevaluation

of G.A. was appropriate and did not merit an independent educational evaluation at

the District’s expense. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

“[I]f the local educational agency determines that the educational or related

services needs, including improved academic achievement and functional

performance, of the child warrant a reevaluation,” a local educational agency must

conduct a reevaluation to “determine whether the child is a child with a disability .

. . and the educational needs of the child.” 20 U.S.C. § 1414(a)(2)(A)(i),

(c)(1)(B)(i). Washington law requires that students be reevaluated “in all areas

related to the suspected disability, including, if appropriate, health, vision, hearing,

social and emotional status, general intelligence, academic performance,

communicative status, and motor abilities.” Wash. Admin. Code

§ 392-172A-03020(3)(e); see also 34 C.F.R. § 300.304(c)(4) (same). If a “school

district fail[s] to conduct the statutorily mandated assessment of ‘all areas of

1
We address the Avilas’ claim that the district court erred in its
application of the IDEA’s statute of limitations to their pre-April 2008 claims in a
published opinion filed concurrently with this memorandum disposition.

2
suspected disability[,]’ it necessarily deprive[s] [the child] of a free appropriate

public education” as required by the IDEA. Timothy O. v. Paso Robles Unified

Sch. Dist., 822 F.3d 1105, 1126 (9th Cir. 2016), petition for cert. filed, No. 16-672

(U.S. Oct. 31, 2016).

Here, we conclude the District assessed G.A. “in all areas related to [his]

suspected disability” when it tested him for reading and writing inefficiencies. See

Wash. Admin. Code § 392-172A-03020. The District does not refer to specific

reading and writing disorders as dyslexia or dysgraphia, but it evaluates students

for “Specific Learning Disabilit[ies] as defined under 34 CFR 300.8(10)(i),” which

includes reading disorders such as dyslexia and writing disabilities. See 34 C.F.R.

§ 300.8(10)(i). The District reevaluated G.A. by administering a battery of tests,

including many of the same tests used by the Avilas’ private evaluator in G.A.’s

2012 assessment. At oral argument, the Avilas claimed the District should have

used subtests from the WIAT-II test for dyslexia and dysgraphia, but the District

assessed G.A. using the updated WIAT-III test. The Avilas do not identify any

other tests that should have been performed by the District. Unlike in our recent

decision in Timothy O. v. Paso Robles Unified School District, where the school

district failed to assess the child not just for autism specifically, but also for

“autistic-like behavior,” here, the District broadly assessed G.A. for reading

3
fluency and fine motor skills aimed at detecting writing inefficiencies. See Paso

Robles, 822 F.3d at 1120 (concluding the school district failed to assess in all areas

of suspected disabilities because it “did not include any of the standard assessments

for autism” or an “assessment for social/adaptive behavior”). The District did

assess G.A. “in all areas related to [his] suspected disability” and did not violate

the IDEA in its 2010 reevaluation.

Each party shall bear its own costs.

AFFIRMED.