1 -- DISTRICT’S OPENING BRIEF Confidential/Filed Under Seal

Richard G. Cohn-Lee, OSB No. 952331

E-mail: Rich@hungerfordlaw.com

Joel E. Hungerford, OSB No. 140940

E-mail: Joel@hungerfordlaw.com

THE HUNGERFORD LAW FIRM

PO Box 3010

Oregon City, Oregon 97045

Telephone: (503) 706-7956

Facsimile: (503) 655-1429

Attorneys for Plaintiff–Appellant

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MEDFORD DIVISION

GRANTS PASS SCHOOL DISTRICT,

Plaintiff-Appellant,

v.

STUDENT,

Defendant-Appellee.

Civil No. 1:14-cv-01115-PA

DISTRICT’S OPENING BRIEF

Individuals with Disabilities Education Act 

(“IDEA”)

 

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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................7

A. Overview and IDEIA Generally............................................................................. 7

B. Procedural and Factual Background....................................................................... 8

II. BURDEN OF PROOF...................................................................................................... 10

III. STANDARD OF REVIEW...............................................................................................11

IV. ANALYSIS....................................................................................................................... 12

A. The ALJ’s Findings Of Fact Are Not Entitled To Deference Because (1) Many Of

The Findings Of Fact Were Nothing More Than Word-For-Word Recitations Of 

The Exhibits Found In The Record, and (2) She Failed To Summarize Or Make 

Any Significant Reference To The Testimony Of Key Witnesses Whose 

Testimony Was On Point With Issues To Be Decided In This Case, and (3) The 

ALJ Disregarded Approximately Half Of The Data Collected By The 

District................................................................................................................... 12

B. The ALJ’s Conclusions Of Law Are Not Entitled To Deference Because (1) She 

Failed To Address On Point Legal Arguments And Case Law Establishing That 

Questions Of Educational Methodology Such As Data Collection Are Left To The 

Discretion Of The School Districts, (2) She Failed To Address On Point Case 

Law and Testimony In Regards To Matters Of Witness Deference, And (3) She 

Failed To Address On Point Case Law Regarding What The District Is Required 

To Consider During ESY Determinations............................................................ 19

1. The ALJ ignored overwhelming case law establishing that (1) data 

collection is a question of educational methodology, and (2) questions of 

educational methodology are reserved to the discretion of the school 

district. .................................................................................................. 21

2. The ALJ ignored on point case law and testimony concerning the 

amount of weight that should be given to all of the expert witnesses who 

testified.................................................................................................. 26

3. The ALJ held the District to standards concerning the use of 

regression/recoupment data that is inconsistent with federal law and her 

own prior rulings................................................................................... 30

4. The ALJ’s Order requires Student to work on goals and objectives that 

everyone, including the Parent, have agreed are no longer appropriate 

for Student............................................................................................. 33

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V. CONCLUSIONS.............................................................................................................. 35

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TABLE OF AUTHORITIES

Aetna Casualty v. Robinson, 115 Or App 154, 158, 836 P2d 1362 (1992) ................................. 27

A.I. ex rel. Iapalucci v. District of Columbia, 402 F Supp 2d 152 (D DC 2005) .......................... 7

Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 557 IDELR 315 (5th Cir. 1986) ............ 31

Board of Educ. of Hendrick Hudson Central School Dist., Westchester County v. Rowley 

(“Rowley”), 458 US 176, 198, 102 S Ct 3034, 73 L Ed 2d 690 (1982) ....................... 7, 22-23

Bridges ex rel. F.B. v. Spartanburg School Dist. Two, 2011 WL 3882850, *6 (D SC Sept 2, 

2011) ...................................................................................................................................... 25

Carlson v. San Diego Unified School Dist., 380 Fed Appx 595, 597 (9th Cir 2010) ............. 23-24

Capistrano Unified Sch. Dist. v. Wartenberg, 49 F.3d 884, 891 (9th Cir. 1995) ........................ 11

C.C. v. Fairfax County Bd. of Educ., 879 F Supp 2d 512, 520-21 (ED Va 2012) ....................... 12

Clyde K. v. Puyallup Sch. Dist., 35 F.3d 1396 (9th Cir. 1994), superseded by statute on other 

grounds, as stated in M.L. v. Federal Way School Dist., 341 F.3d 1052 (9th Cir. 2003) ...... 11

Cordrey v. Euckert, 17 IDELR 104 (6th Cir.1990), cert. denied, 499 U.S. 938, 110 LRP 38027 

(1991) ..................................................................................................................................... 31

E.H. v. New York City Dept. of Educ., 2014 WL 1224417, *5 (SDNY March 21, 2014) ........... 25

Forest Grove School Dist. v. Student, 2014 WL 2592654 (D. Or. 2014) .................. 13, 19-20, 24

Gwinnett County School Dist. v. J.B. ex rel. D.B., 398 F Supp 2d 1245, 1267 (ND Ga 2005) ... 12

James M. ex rel. Sherry M. v. Hawai’i, 803 F. Supp. 2d 1150, 1157, 

1160 (D. Hawai’i 2011) ......................................................................................................... 11

Johnson v. Independent School Dist. No. 4 of Bixby, Tulsa County, Okla., 921 F. 2d 1022 (10 

Cir. 1990) ............................................................................................................................... 30

K.S. v. Fremont Unified School District, 545 F. Supp. 2d 995 (N. D. Cal. 2008) ................. 19, 26

Lachman v. Illinois St. Bd. of Educ., 852 F.2d 290, 297 (7th Cir 1988) ....................................... 24

Manteca Unified School District, 50 IDELR 298 at 3-4 (SEA Ca June 27, 2008) ..................... 27

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McQueen v. Colorado Springs Sch. Dist. No. 11, 419 F. Supp. 2d 1303, 207 Educ. L. R. 956 (D. 

Colo. 2006), rev’d, 488 F.3d 868, 221 Educ. L. R. 535 (10th Cir. 2007) ............................... 31

Nalu Y. ex rel. Patty Y. v. Department of Educ., Hawaii, 858 F Supp 2d 1127, 1133 (D Hawaii 

2012) ...................................................................................................................................... 12

N.B.v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 236 Educ. L. R. 603 (9th Cir. 2008) ...... 31

Ojai Unified Sch. Dist. et al v. Jackson, 4 F.3d 1467, 1471-72 (9th Cir. 1993), cert. denied, 513 

U.S. 825, 115 S. Ct. 90, 130 L.Ed.2d 41 (1994). ............................................................. 11, 23

Omey v. Senior and Disabled Services Div., 124 Or App 112, 115, 861 P2d 394 (1993) .......... 27

Pachl v. School Board of Independent School District No. 11, 42 IDELR 264, at 18 (D Minn Feb 

23, 2005), aff’d 46 IDELR 1 (8th Cir July 14, 2006) ............................................................. 23

Parenteau v. Prescott Unified School Dist., 2008 WL 5214997, *8-9 (D Ariz Dec 

11, 2008) .......................................................................................................................... 25, 35

P.K. ex rel. S.K. v. New York City Dept. of Educ. (Region 4), 819 F Supp 2d 90, 108-09 (EDNY 

2011) ...................................................................................................................................... 24

Reid ex rel. Reid v. District of Columbia, 401 F3d 516, 521 (DC Cir 2005) ........................ 12, 35

Seattle School Dist., No. 1 v. B.S., 82 F 3d 1493 (9th Cir 1996) ................................................... 8

Shakopee Indep. Sch. Dist., 52 IDELR 210 (SEA MN 2009) ..................................................... 23

Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir.1990) ....................................... 22

Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.), cert. den, 513 U.S. 965, 115 S. Ct. 428, 

130 L.Ed.2d 341 (1994) .............................................................................................. 11, 22-23

Virginia S. ex rel. Rachael M. v. Department of Educ., Hawaii, 2007 WL 80814, * 12 (D Haw 

Jan 8, 2007) ............................................................................................................................ 22

20 USCA §§1400(c)(1) .................................................................................................................. 7

20 USCA §§1400(d)(3) .................................................................................................................. 7

20 USCA §1401(26)(A) ................................................................................................................. 7

OAR 581-015-2065(2) ................................................................................................................. 17

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HAR § 8-60-7 .............................................................................................................................. 17

71 Fed. Reg. 46582 (2006) .......................................................................................................... 30

71 Fed. Reg. 46,665 (2006) ......................................................................................................... 23

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I. INTRODUCTION

A. Overview and IDEIA Generally

This is an appeal of an administrative law judge’s (“ALJ”) decision issued pursuant to the 

Individuals with Disabilities Education Improvement Act 2004 (“IDEIA”), 20 USCA §§1400 et 

seq, which focuses on improving educational results for children with disabilities. As stated in § 

1400(c)(1): “Improving educational results for children with disabilities is an essential element 

of our national policy of ensuring equality of opportunity, full participation, independent living, 

and economic self-sufficiency for individuals with disabilities.” Id.§1400(c)(1) (emphasis 

added). One of the primary purposes of the IDEIA is “to ensure that educators and parents have 

the necessary tools to improve educational results for children with disabilities.” Id. at 

§1400(d)(3). While the Act encompasses “related services,” those services are provided “as may 

be required to assist a child with a disability to benefit from special education.”

20 USCA §1401(26)(A).

The IDEIA guarantees a free, appropriate public education (“FAPE”) for all students with 

disabilities, including the necessary supports so that students can access their education. The 

Individualized Education Plan (“IEP”) is the means by which schools work with parents to 

describe the educational status and needs of the student, then design supports and specialized 

instruction so the particular Student receives an appropriate education.

It is important to note that an “appropriate education” does not amount to providing 

services designed to maximize a student’s potential. Board of Educ. of Hendrick Hudson Central 

School Dist., Westchester County v. Rowley (“Rowley”), 458 US 176, 198, 102 S Ct 3034, 73 L 

Ed 2d 690 (1982). Rather, the appropriate focus is whether the IEP is reasonably calculated to 

provide some meaningful educational benefit. A.I. ex rel. Iapalucci v. District of Columbia, 402 

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F Supp 2d 152, 163 (D DC 2005). In other words, districts are obliged only to provide a “basic 

floor of opportunity” through an IEP designed to provide educational benefit to the disabled 

student. Seattle School Dist., No. 1 v. B.S., 82 F 3d 1493, 1500 (9th Cir 1996).

While it is understandable that all parents, including the parents of disabled students, 

want their children to have a wide variety of educational resources and experiences, the reality is 

that Oregon’s public school funding does not allow the maximizing of potential for any student 

at the current time. See Brillon v. Klein Independent School Dist., 100 Fed Appx 309, 312-313 

(5th Cir 2004) (rejecting parents’ expert witnesses’ contention that school district could have 

provided “better accommodations” where school districts are “not required to ‘provide every 

conceivable supplementary aid or service to assist the child.’” (Citation omitted).

B. Procedural and Factual Background

This appeal concerns the Final Order issued in administrative due process 14-104 (“CP 

II” or “DP 14-104”), which addressed whether the Grants Pass School District No. 7 (“the 

District”) improperly denied extended school year services (“ESY”) to Student over the summer 

of 2014, resulting in a denial of FAPE. DP 14-104 Final Order at 2; DP 14-104 Prehearing 

Report and Order at 3; and Tr. Vol. 3, 7:19- 25. An earlier hearing involving the same parties and 

same ALJ (“DP 14-102” or “CP I”) addressed the issue of whether the District properly 

considered and allowed Parent to participate in discussing ESY during the November 20, 2013 

and March 18, 2014 IEP meetings. DP 14-102 Final Order at 2; DP 14-102 Prehearing Report 

and Order at 1; and Tr. Vol. 1, 6:14-7:11. Essentially, CP I addressed whether the District made 

an ESY determination in a timely manner and allowed the Parent to participate in that decision, 

and CP II addressed whether the District denied Student FAPE by making the substantive 

determination that ESY was not appropriate for Student. 

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The testimony, evidence, and Findings and Conclusions from CP I were submitted into 

the evidence and record of CP II. DP 14-104 Notice of Hearing and Rights at 2.

The Student in this matter is eligible for special education services under the IDEA under 

the category of Autism Spectrum Disorder. Ex. D3 at 1 and Tr. Vol. 1 at 159. Student arrived in 

the District in July 2013, having previously attended school in Hawaii. Ex. S11 and Tr. Vol. 1, 

159:25-160:6. Based on the goals and objectives in Student’s previous out-of-state IEP and its 

determination by that school district that Student required ESY services for the summer of 2013, 

the District provided ESY services to Student during Summer 2013. Tr. Vol. 1, 160:12-21.

On November 20, 2013, the District convened an IEP meeting to review Student’s IEP. 

Ex. D2. Student’s Parent attended and participated in this meeting, which was facilitated by a 

mediator appointed by the Oregon Department of Education (“ODE”) to assist the parties in 

following appropriate procedure for the meeting. Ex. D4 and Tr. Vol. 1, 107:17-108:4. As a 

result of this meeting, Student’s IEP was substantially revised. Ex. D3.

The District began gathering recoupment and regression data after the development of the 

November 20, 2013 IEP, but this IEP was in place for only a very short period before winter 

break. Tr. Vol. 2, 36:10-40:1. Factoring in the Thanksgiving holiday and unanticipated snow 

days, there were only 16.5 days before the start of the winter holiday. Tr. Vol. 2, 35:25-40:1. 

Moreover, Student’s new IEP involved a significant shift in the type of objectives (including a 

shift from academic to more functional goals), methodology, and curriculum compared to what 

Student had received under prior IEPs. Tr. Vol. 2, 40:8-23. Based on the lack of adequate 

baseline data before the winter break, District staff felt that they could not make an ESY 

determination shortly after the winter break. Tr. Vol. 2, 39:20-40:1; Tr. Vol. 2, 63:23- 64:3; Tr. 

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Vol. 2, 40:2-5. However, had the IEP team made a decision at this point in time, it would have 

been that the Student did not qualify for ESY. Ex. D10; Tr. Vol. 2, 63:7-14.

Because the District was not entirely confident in the data collected over winter break, 

the IEP team decided to wait to make an ESY determination after spring break so that the 

District would have another break over which to regression/recoupment gather data. Tr. Vol. 2, 

39:20-40:1; Tr. Vol. 2, 63:23-64:3; and Tr. Vol. 2, 63:7-14.

On March 18, 2014 (before spring break began on March 21, 2014) the District convened 

another IEP meeting to discuss other IEP matters. Ex. D5. The Parent requested that the topic of 

ESY be added to the agenda for this meeting and the District honored the Parent’s request. Ex. 

D5 at 1; Ex. D6. The team discussed the issue of ESY, but District staff explained that as of that 

day, spring break had not yet occurred, so it would not yet be possible to compare the pre- and 

post-spring break recoupment/regression data to make an ESY determination. Ex. D5 at 8; Ex. 

D6; Tr. Vol. 2, 116:24-117:16.

On April 10, 2014, Student’s IEP team met to determine Student’s eligibility for ESY. Tr. 

Vol. 3 at 19 and Ex. D9. Student’s Parent has never taken issue with who was or was not present 

at the meeting. Tr. Vol. 3, 24:21-23. At this meeting the members of the IEP team from the 

District all agreed that Student did not qualify for ESY in any category. Tr. Vol. 3, 25:12-23 and 

Ex. D11. The Parent agreed that Student did not need ESY in the area of writing goals, but 

disagreed about the other areas. Ex. D11.

II. BURDEN OF PROOF

In the proceeding below, the Student bore the burden of proving that the District failed to 

meet the requirements of the IDEIA in various respects, and the ALJ erroneously concluded that 

Student met this burden of proof with regard to the majority of the Student’s allegations. On 

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appeal, the District has the burden of proof with regard to those portions of the ALJ’s order that 

it has appealed. Clyde K. v. Puyallup Sch. Dist., 35 F.3d 1396, 1399 (9th Cir. 1994).

III. STANDARD OF REVIEW

This court reviews the ALJ’s factual determinations for clear error, but reviews de novo

the ALJ’s ultimate determination of the appropriateness of the educational program. Capistrano 

Unified Sch. Dist. v. Wartenberg, 49 F.3d 884, 891 (9th Cir. 1995) [citations omitted]. The court 

must give "due weight" and "accord deference" to the policy decisions of the District, as "courts 

should not substitute their own notions of sound educational policy for those of the school 

authorities which they review." Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.), cert. 

den, 513 U.S. 965, 115 S. Ct. 428, 130 L.Ed.2d 341 (1994) [citations omitted]; Ojai Unified Sch. 

Dist. et al v. Jackson, 4 F.3d 1467, 1471-72 (9th Cir. 1993), cert. denied, 513 U.S. 825, 115 S. 

Ct. 90, 130 L.Ed.2d 41 (1994).

Although the court must consider the ALJ’s findings, the Ninth Circuit has held that it is 

within the court’s discretion to “reject them in part or in whole.” Ojai at 1473-74. Further, the 

amount of deference that the court gives to the hearing officer’s findings is discretionary, and 

increases only “where [the ALJ’s findings] are thorough and careful." Capistrano at 891. As in 

this case, a factor weighing against such deference is where an ALJ fails to cite, recognize or 

even discuss substantial portions of the testimony of relevant witnesses and documents or fails to 

provide a well-reasoned analysis of her findings and conclusions; instead what is required is a 

written decision that “evinces his careful, impartial consideration of all the evidence and 

demonstrates his sensitivity to the complexity of the issues presented.” James M. ex rel. Sherry 

M. v. Hawai’i, 803 F. Supp. 2d 1150, 1157, 1160 (D. Hawai’i 2011) (emphasis added) 

(deference appropriate where ALJ summarized testimony of teachers, administrators, therapists, 

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and consultants involved in the process, and created detailed decision explaining her factual 

findings and legal conclusions); see also Nalu Y. ex rel. Patty Y. v. Department of Educ., Hawaii, 

858 F Supp 2d 1127, 1133 (D Hawaii 2012) (hearings officer’s ruling neither careful nor 

thorough where it completely “ignored critical testimony” and in fact disregarded such testimony 

in favor of weaker, contrary evidence); C.C. v. Fairfax County Bd. of Educ., 879 F Supp 2d 512, 

520-21 (ED Va 2012) (summarizing relevant case law regarding review of hearings officer 

decisions and noting that such cases held that, while hearings officer was not necessarily 

required to present detailed findings regarding credibility or the weight given to one side’s 

witnesses or the other’s, such cases at a minimum involved the hearings officer discussing or 

summarizing both parties’ evidence and witnesses, even if the hearings officer ultimately 

disagreed with or gave less weight to one side’s evidence or witnesses); Gwinnett County School 

Dist. v. J.B. ex rel. D.B., 398 F Supp 2d 1245, 1267 (ND Ga 2005) (federal district court, after 

conducting it’s own review of the transcripts and exhibits, holding that there was insufficient 

evidence to support hearings officer’s conclusion of school district liability and that hearings 

officer’s decision not entitled to deference where “where crucial evidence is missing.”); Reid ex 

rel. Reid v. District of Columbia, 401 F3d 516, 521 (DC Cir 2005) (holding that hearings officer 

decision entitled to “little deference” where it lacked reasoned and specific findings and required 

district court to further explore administrative record for evidence on the issue).

As discussed below, in this case the ALJ’s Findings of Fact and Conclusions of Law lack 

any of the indicia above and are therefore neither careful nor thorough; as a result, the court 

should afford them little deference.

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IV. ANALYSIS

A. The ALJ’s Findings Of Fact Are Not Entitled To Deference Because (1) Many Of 

The Findings Of Fact Were Nothing More Than Word-For-Word Recitations Of 

The Exhibits Found In The Record, (2) She Failed To Summarize Or Make Any 

Significant Reference To The Testimony Of Key Witnesses Whose Testimony Was 

On Point With Issues To Be Decided In This Case, and (3) The ALJ Disregarded 

Approximately Half Of The Data Collected By The District

The ALJ’s Finding of Fact consists largely of word-for-word excerpts from documents in 

the record or statutes or administrative rules. Final Order 3-18. Additionally, the ALJ’s Findings 

of Fact also omit key, on-point testimony that contradicted her conclusions. As noted recently in

Forest Grove School Dist. v. Student, 2014 WL 2592654 (D. Or. 2014), such Findings of Fact 

are not careful and thorough and are, therefore, due little deference. 

In Forest Grove the court specifically found that, 

“Although the ALJ’s sixty-eight page single spaced opinion is lengthy, it is not 

careful and thorough, and the court affords it little deference. The ALJ describes 

in detail many of the exhibits on record. She includes large block quotes of each 

IEP, and describes each IEP meeting as described in the IEP meeting notes. 

However, the ALJ makes little to no mention of witness testimony taken over 

multiple days of administrative hearing. Most importantly, the ALJ does not 

discuss the hearing testimony of the parties experts, which sheds significant light 

on the issues presently before the court and often contradict the ALJ’s conclusions 

of fact and law.” Id. at *12.

Here, like in Forest Grove, the ALJ’s Findings of Fact consist largely of word-for-word 

recitations of the documents found in the exhibits. See, e.g., Finding of Fact 3 (word-for-word 

recitation of the District’s policies and procedures for determining ESY found in Ex. D1) and 

Findings of Fact 26-29 (word-for-word recitation of measurable goals and objectives from

Student’s IEP found in Ex. D9).

Next, just like in Forest Grove the ALJ in this case ignored or disregarded highly relevant 

testimony speaking to the matters at issue. Specifically, although the ALJ quoted the Parent’s 

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expert testimony extensively in her Findings of Fact, she ignored contradictory testimony from 

both the District’s expert witnesses and even the Parent’s expert witnesses themselves. 

For instance, the ALJ relied heavily on the testimony of Dr. Gentry and Dr. Sutton to 

support the finding that the District’s data collection lacked fidelity, and therefore many of the 

Findings of Fact dealt with the testimony of these two witnesses. In fact, approximately three 

single-space pages of the Findings of Fact (i.e., over one dozen Findings of Fact) were devoted 

to the credentials of Dr. Gentry and his testimony concerning the fidelity of the District’s data 

collection process. DP 14-104 Final Order (Findings of Fact 46 and 53-65). However, the ALJ 

made no mention of the testimony from Dr. Gentry himself that it was “almost impossible” for 

him to judge the fidelity of the District’s data collection and without more information available 

he “can’t say whether or not [the] data [the District collected] meets the standards of fidelity or 

not.” Tr. Vol. 3, 24:14-25:8 (“In a case like this where I have only the raw data in front of me, it 

is almost impossible to judge fidelity just because, as a consultant, I would be training and sitting 

in with the data collector to make sure they’re collecting data correctly when they collect it [...] 

So without those things, I can’t say whether or not this data meets the standards of fidelity or 

not.”). The ALJ made no mention of this relevant testimony that went to the central matter of Dr. 

Gentry’s testimony, despite having spent a significant amount of time outlining the testimony of 

this witness. 

Similarly, the ALJ relied greatly on the testimony of Dr. Sutton to establish that Student 

needs ESY for the summer of 2014. As with Dr. Gentry, the ALJ devoted at least one dozen 

Findings of Fact (i.e., approximately two single-space pages) to the qualifications and testimony 

of Dr. Sutton. However, the ALJ made no reference to the fact that when Dr. Sutton was asked 

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directly by the ALJ whether student needed ESY for the summer of 2014 Dr. Sutton testified that 

she was not in a position to make that determination. Tr. Vol. 4.110:3-22.

Not only did the ALJ ignore highly relevant testimony that went to the matter at hand, 

she also dismissed equally relevant documentary evidence, including evidence she had stated 

was relevant in her CP I Order. As a result, the ALJ’s Final Order in CP II contradicts the Final 

Order in CP I, a ruling that neither party appealed.

As established in CP I, the District was reasonable in waiting until after spring break in 

order to gather ESY regression/recoupment data given the District’s concerns about the strength 

of the regression/recoupment data it gathered over winter break. DP 14-102 Final Order at 18. 

Specifically, the ALJ concluded,

“[The] District provided evidence that the decision to defer Student’s ESY 

eligibility determination was appropriate because there was no data for Student 

showing regression/recoupment to support ESY. Based on their education and 

experience in special education and with Student individually, District staff 

opined, at the hearing, that determining ESY eligibility without the required data 

would not have complied with District’s policies and procedures or those of the 

state or of the federal regulations.” DP 14-102 Final Order at 18.

Although the ALJ agreed in CP I that the District needed to wait until after spring break 

to make an ESY determination so that it could supplement the data it collected over winter break, 

the ALJ now dismisses all of the data collected over spring break in a single footnote. DP 14-104 

Final Order at 25 (Footnote 6). In CP II the ALJ stated that because spring break consisted only 

of five school days and because the Parent and the Parent’s witnesses were only concerned about 

breaks in education lasting 10 days or more, the data collected over spring break was not 

“relevant.” Id.1 As noted previously by this court, such a finding runs counter to the ALJ’s Order 

 1 The footnote reads, in its entirety, “Only evidence on data concerning Student’s performance 

before and after the winter break is discussed in the Opinion. Spring break created a break of five 

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in DP 14-102, which found that the District reasonably delayed making a regression/recoupment 

determination precisely so that it could collect the spring break data. Order Granting of 

Remedies at 6.

Not only is this ALJ’s ruling in DP 14-104 contradictory to her ruling in DP 14-102, but 

it is also legally inappropriate. When dismissing the spring break data the ALJ relied heavily on 

the assertion that Student regressed only for breaks of 10 or more school days. DP 14-104 Final 

Order at 13 (Finding of Fact 48), 25 (Footnote 6), and 27. However, this conclusion was arrived 

at because these were the breaks when ESY was provided to Student on previous IEPs. Tr. Vol. 4 

at 130-132; DP 14-104 Final Order at 18 (Finding of Fact 78). Despite numerous attempts by the 

District to obtain actual data supporting this conclusion from the Student’s prior Hawaii School 

District, the Hawaii Department of Education and even the Parent himself, the District has never

received that information. Tr. Vol. 2, 239:25-240:3. In fact, the District even asked Dr. Sutton 

from Student’s previous district on the record during the hearing, to provide that data to the 

District. Tr. Vol. 4, 133:4-135:8. Again, however, to his day (even after asking Dr. Sutton for it 

at hearing) this data has never been shared with the District. The only documentation that the 

District has received about Student’s ESY in Hawaii is the Hawaii IEP itself, which states that 

Student is to receive ESY, but does not include any information or reasoning to explain why. Ex. 

S11 and Tr. Vol. 2, 191:19-23 (Parent admitting IEP from Hawaii includes no information as to 

why Student was provided ESY in Hawaii).

Moreover, even if the District did have the underlying data from those previous ESY 

determinations that still would not be determinative: The District would still be required to 

conduct a full ESY determination based on the current abilities and needs of a student, not 

 

recoupment problems after a break of 10 days or more. Data collected for Spring break, which 

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simply historical assertions about ESY eligibility, especially in the absence of supporting data. 

As noted by the ALJ herself in DP 14-102, “determining a student’s ESY eligibility based solely 

on past eligibility is in direct contradiction of the requirement that “ESY must be provided only 

if the child's IEP team determines, on an individual basis, that the services are necessary for the 

provision of free appropriate public education to the child.” OAR 581-015-2065(2).” DP 14-102 

Final Order at 18-19. Relatedly, the evidence at hearing was that the Student’s Oregon IEP was 

substantially different from his previous IEPs, including those from Hawaii. Tr. Vol. 2, 39:3-20 

and Tr. Vol. 1, 153:11-13. Therefore, the District would still need to consider how the Student 

was doing in his current setting, working on his current IEP goals and short-term objectives.

Also, as noted in the District’s Posthearing Brief in DP 14-102, the Hawaii regulations2

regarding ESY are different from those in Oregon. DP 14-102 District’s Posthearing Brief at 24. 

For instance, the notes and guidance accompanying the Hawaii regulations have Hawaii schools 

consider factors in making ESY determinations that schools in Oregon do not consider. See, 

generally, HAR § 8-60-7.

Additionally, the testimony relied on by the ALJ (i.e., that of Dr. Sutton’s) regarding the 

length of breaks for when ESY was appropriate was that the length of break varied over time –

that is, Student had received ESY for breaks other than just those of 10 or more days in length. 

Tr. Vol. 4 at 130:24-132:6. In fact, Sutton testified, “And every time we had more data after a 

break, we revisited it [the ESY determination]. So I believe it [ESY] got reduced to 10 [day 

breaks] versus the other way around.” Id. (brackets added). This was precisely what the District 

was trying to do with the spring break data – revisit the issue of ESY once it had more data to 

 

consists of only five school days, is not relevant to that issue.” 2 Student entered the District from a district in Hawaii and, thus, the IEP before the District’s 

November 2013 IEP was created in Hawaii.

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determine when Student may or may not need ESY for a period of time different from what he 

had displayed in the past.

Further, the District would be in violation of state and federal law if it were to adopt the 

strategy set forth by the ALJ (i.e., disregarding the spring break data). If the District collected 

and analyzed only regression/recoupment data that aligned with what a student received in the 

past, the Student would never be able to qualify for ESY for a shorter break. For example, if the 

District never considered regression/recoupment for breaks of five days (like it attempted to do

here) because that was (1) not what the Student had qualified for in the past, and (2) not what the 

Parent contended Student needed, then Student would never be able to get ESY for breaks of that

length, even if he actually needed it. But that is the precise result of the ALJ’s Order in CP II. 

Instead of following the applicable regulations and her own analytical framework established in 

CP I, the ALJ instead relied solely on the assertion of the Parent that ESY data collected for 

spring break should be disregarded.

In contrast, the evidence at hearing was unanimous and uncontested that the spring break 

data did not support a finding of ESY. Ex. D10 at 1-5 and Tr. Vol. 3, 116:4-125:21. The Parent

did not once challenge the validity of the collection process or conclusions of that spring break 

data at any point in time. Id. 

However, even though the spring break data was collected for the sole purpose of 

assisting the IEP team in making an ESY determination, and even though the District gathered it

because the District shared the Parent’s concerns about the data collected over winter break, the 

ALJ dismissed all of the data collected over spring break as irrelevant. DP 14-104 Final Order at 

25 (Footnote 6). Essentially, the ALJ penalized the District for what she perceived as flaws in the 

District’s winter break data, but when the District shared the same concerns and took action to 

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supplement the winter break data with data collected over spring break, she dismissed any 

additional data as irrelevant.

Because the ALJ’s Findings of Fact were overly selective, and because many of her 

Findings of Fact were simply recitations of the exhibits found in the record, her Findings of Fact 

are due little deference. 

B. The ALJ’s Conclusions Of Law Are Not Entitled To Deference Because (1) She 

Failed To Address On Point Legal Arguments And Case Law Establishing That 

Questions Of Educational Methodology Such As Data Collection Are Left To The 

Discretion Of The School Districts, (2) She Failed To Address On Point Case Law 

And Testimony In Regards To Matters of Witness Deference, And (3) She Failed To 

Address On Point Case Law Regarding What The District Is Required To Consider 

During ESY Determinations

Not only did the ALJ ignore contrary testimony and evidence, she also ignored relevant 

case law and even entire lines of legal argument without any explanation or analysis. When an 

ALJ does not support her Conclusions of Law with adequate case law those conclusions are 

afforded little deference. Forest Grove School Dist, 2014 WL 2592654 at *12. The court in 

Forest Grove, found that 

“The ALJ’s conclusions of law are also entitled to little deference. In her analysis 

of the issues, the ALJ fails to adequately support her conclusions with caselaw

[sic]. Instead, she applies an arbitrarily high standard which bears little 

resemblance to the legal standards established by decades of court interpretation 

of the IDEA [...] Because the ALJ’s opinion is factually selective to the detriment 

of an accurate factual record and inadequately develops the applicable legal 

standards, the court affords the ALJ’s opinion little deference.” Id.

When the ALJ did cite case law to support her conclusions it was minimal. For example,

the ALJ cited K.S. v. Fremont Unified School District, 545 F. Supp. 2d 995 (N. D. Cal. 2008) to 

establish that deference should be granted to ALJ’s in allocating weight given to expert opinions. 

DP 14-104 Final Order at 24. She then gave greater weight to the Parent’s expert witnesses, 

concluding that, “their [the Parent’s witnesses’] observations regarding the flaws in District’s 

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data collection established that the District’s decision was not based upon valid criteria.” Id. at 

26. However, the ALJ did not provide any case law establishing that the standards set forth by 

the Parent’s witnesses align the requirements required as a matter of law. In fact, the testimony 

from the Parent’s witnesses was often concerning what they would “prefer” to see or what they 

thought was “best”. See, e.g, Tr. Vol. 4, 38:23-39:7 (Gentry testifying that 10 or more trials is 

“preferable”); Tr. Vol. 4, 49:25-50:11 (Gentry testifying that more data points create “a better 

average.”); Tr. Vol. 4, 31:6-11 (Gentry testifying that “the more data points you can use to create 

an average the better * * *”); and Tr. Vol. 4, 58:21-22 (Gentry testifying to what he thinks would 

provide “a better baseline”.). The ALJ echoed this testimony in her Conclusions of Law, such as 

when she noted that Dr. Gentry opined that the District should have collected 

regression/recoupment data on consecutive days. DP 14-104 Final Order at 26. However, the 

ALJ cited no legal authority via case law or statute/regulation that the District is required to meet 

this type of standard (i.e., there is no legal requirement that school districts collect ESY data on 

consecutive days). This is precisely the type of “arbitrarily high standard” mentioned by the 

court in Forest Grove.

In fact not only did the ALJ not cite any legal authority requiring the District to meet the 

standards set forth by the Parent’s witnesses, she did not address or even attempt to distinguish 

the substantial case law cited by the District that establishes that districts are not required to use 

the “best” methodology available, including methodology relating to data collection. See, e.g., 

Forest Grove School District v. Student, 2014 WL 2592654 at *25 (finding no legal support for 

argument that school district staff must use educational methodology “which works best for that 

student.”).

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Although the testimony of the Parent’s witnesses may establish that the District did not 

follow what the Parent’s witnesses believed were best practice, neither they nor the ALJ 

provided any legal citation that the District’s data collection fell below the standards set forth by 

federal law, state law, or even the District’s own policies and procedures. Basically, the ALJ held 

the District to the standards of the Parent and his witnesses, not the standards of the law.

1. The ALJ ignored overwhelming case law establishing that (1) data collection 

is a question of educational methodology, and (2) questions of educational 

methodology are reserved to the discretion of the school district

The District’s Posthearing Brief cited and analyzed substantial case law that established 

(1) the collection of data for determining ESY is a question of educational methodology, and (2) 

questions of educational methodology are outside the scope of what courts should second-guess 

and are, therefore, left to the discretion of school districts. However, the ALJ made no reference 

at all to this argument in her Final Order: She did not state that she disagreed with this argument, 

she did not state that the current case was distinguishable from the cases cited in briefing, nor did 

she cite contrary case law establishing that such an argument was not appropriate. Instead, the 

ALJ merely ignored that argument and legal standard altogether, making no reference to it at all 

in the CP II Final Order. 

The evidence at hearing was that Parent disagreed with the method the District used to 

collect data to determined ESY. See, for example, Ex. D11 at 4 (April 10 meeting notes reading, 

“To summarize the discussion [Kirk Kolb] explained that the way [Parent] came up with the data 

and the way the district came up with the data are two different methods, so the data will not 

match. [Parent] indicated he understood that now.” See also Ex. D11 at 7 (“[Parent’s] data 

explanation involved his methodology for determining ESY, which included a longer period of 

time to determine the averages using highest scores for both pre- and post-break data. Discussion 

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was held regarding both methods of determining the data to use for determining ESY.”).

However, courts have routinely rejected attempts to second-guess the methodological choices 

and professional judgment of educators, including in the area of progress reporting and data 

collection. 

The Supreme Court has cautioned that “[i]n assuring that the requirements of the Act 

have been met, courts must be careful to avoid imposing their view of preferable educational 

methods upon the States. The primary responsibility for formulating the education to be accorded 

a handicapped child, and for choosing the educational method most suitable to the child's needs, 

was left by the Act to state and local educational agencies in cooperation with the parents or 

guardian of the child.” Rowley, 458 U.S. at 207 (footnote omitted). “The ‘preponderance of the 

evidence’ language in the [IDEA] ‘is by no means an invitation to the courts to substitute their 

own notions of sound educational policy for those of the school authorities which they review.’” 

Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir.1990) (quoting Rowley, 458 U.S. 

at 206).

In particular, federal case law from within the Ninth Circuit has held that questions of 

ESY eligibility criteria and methodology are “classic examples of technical questions of 

educational policy.” Virginia S. ex rel. Rachael M. v. Department of Educ., Hawaii, 2007 WL 

80814, * 12 (D Haw Jan 8, 2007) (noting that reviewing courts lack the expertise necessary to 

resolve persistent and difficult questions of educational policy and that they should likewise not 

“second-guess” conclusions regarding ESY determinations absent contrary evidence) (citations 

omitted).

The court must give "due weight" and "accord deference" to the policy decisions of the 

District, as "courts should not substitute their own notions of sound educational policy for those 

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of the school authorities which they review." Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th 

Cir.), cert. den, 513 U.S. 965, 115 S. Ct. 428, 130 L.Ed.2d 341 (1994) [citations omitted]; Ojai 

Unified Sch. Dist. et al v. Jackson, 4 F.3d 1467, 1471-72 (9th Cir. 1993), cert. denied, 513 U.S. 

825, 115 S. Ct. 90, 130 L.Ed.2d 41 (1994); Pachl v. School Board of Independent School District 

No. 11, 2005 WL 428587, *20 (D Minn Feb 23, 2005), aff’d 46 IDELR 1 (8th Cir July 14, 2006) 

(rejecting distinction by parents between ESY and other areas of IEP and placement 

development where school district personnel are afforded deference based on their educational 

expertise).

The Parent presented two expert witnesses to argue that the District’s “raw data” sheets 

lacked fidelity or that different methodologies should have been employed in analyzing that data. 

For example, Dr. Gentry asserted that the District should have used three data points instead of 

two data points when collecting pre- and post-break data averages. Tr. Vol. 4, 31:1-11.

However, the IDEA does not require that the IEP identify the specific methodology that 

the district will use. The U.S. Department of Education has specifically addressed this issue, 

stating, "there is nothing in the [IDEA] that requires an IEP to include specific instructional 

methodologies." 71 Fed. Reg. 46,665 (2006) (bracketed language added). See also 34 CFR § 

300.320(d)(1); Shakopee Indep. Sch. Dist., 52 IDELR 210 (SEA MN 2009) (finding that neither 

the IDEIA nor its implementing regulations require an IEP to include a specific methodology or 

one that would maximize the student's abilities); See also Board of Educ. of Hendrick Hudson 

Central School Dist., Westchester County v. Rowley, 458 US 176, 178, 102 S Ct 3034, 73 L Ed 

2d 690 (1982) (holding that once it has been determined that the general requirements of IDEA 

have been met, “questions of methodology are for resolution by the States.”); Carlson v. San 

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Diego Unified School Dist., 380 Fed Appx 595, 597 (9th Cir 2010) (unpublished opinion) 

(holding same).

In the recent decision of Forest Grove School District, 2014 WL 2592654 at *25, in 

substantially reversing an Oregon ALJ, the Oregon federal district court reiterated that “’parents, 

no matter how well-motivated, do not have the right under the [IDEA] to compel a school district 

to provide a specific program or employ a specific methodology in providing for the education of 

their handicapped child.’” (citing Lachman v. Illinois St. Bd. of Educ., 852 F.2d 290, 297 (7th Cir 

1988)). The district court also emphasized “it is not the prerogative of outside actors to usurp the 

authority of school districts by substituting their own ideas about sounds educational policy for 

that of the schools.” Id.

In stark contrast, the ALJ did not provide any legal authority as to why the District should 

have used the methodologies endorsed by the Parent’s witnesses.

Relatedly, multiple courts including those within the Ninth Circuit have held that the 

same deference with regard to methodology applies with equal force when it comes to arguments 

that a school district did not employ the “correct” or optimal approach to data collection. See, 

e.g., P.K. ex rel. S.K. v. New York City Dept. of Educ. (Region 4), 819 F Supp 2d 90, 108-09 

(EDNY 2011) (affirming ALJ’s conclusion that while school district did not establish that 

methodology used for tracking progress on IEP goals and objectives accurately measured 

progress and did not specify a method of measuring progress, these deficiencies did not impede 

student’s right to FAPE where testimony of teacher providing services was that progress was 

based not only on data sheets but also on informal assessments of progress including 

observations of student by teacher and summarizing extensive case law holding that courts have 

been skeptical of finding a denial of FAPE based on the methods of measuring progress and that 

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such decisions are “precisely the type of issue upon which the IDEA requires deference * * *”) 

(citations omitted); Bridges ex rel. F.B. v. Spartanburg School Dist. Two, 2011 WL 3882850, *6 

(D SC Sept 2, 2011) (even where methods of progress measurement were not aligned with the 

method that parents viewed as being optimal, where student’s progress was expressed in terms of 

percentages and were sufficiently measureable to reasonably gauge progress, school district did 

not violate IDEA and, even if it had, such a technical deficiency would not mount to denial of 

FAPE where it was not shown that the deficiency had deprived student of educational 

opportunity necessary for provision of FAPE); E.H. v. New York City Dept. of Educ., 2014 WL 

1224417, *5 (SDNY March 21, 2014) (school district’s reliance on progress report that aligned 

with previous goals and a specific methodology that would not be implemented at school 

district’s new proposed placement was not unreasonable where reality was that in addition to 

data in report, student had been observed by school staff daily and thus use of progress report by 

school district did not violate requirements of IDEA); Parenteau v. Prescott Unified School 

Dist., 2008 WL 5214997, *8-9 (D Ariz Dec 11, 2008) (federal district court rejecting claims by 

same parent in instant case against prior school district that district had failed to provide 

“quantitatively measureable” methods of measuring progress towards IEP goals and that IEP 

failed to provide services pursuant to parent’s desired methodology and accompanying 

“intensive, quantitative data collection” where court noted that school district was not compelled 

to rely on numerically precise quantitative data, but could also rely on qualitative information to 

measure progress and, at any rate, IDEA does not require that districts utilize specific 

methodologies or strategies; rather, district reasonably relied on “qualified educators who make 

professional judgments regarding the most appropriate teaching methods [and] strategies * * *.”)

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All of these cases were provided to the ALJ in the District’s Posthearing Brief. However, 

the ALJ did not address any of these issues (e.g., questions of educational methodology are 

reserved to the discretion of the school districts). Instead, the ALJ went about doing precisely 

what was proscribed by these cases: second-guessing the methodology used by the District when 

collecting ESY regression/recoupment data. For instance, she concluded that the District should 

have used at least three data points instead of two, as recommended by Dr. Gentry. DP 14-104 

Final Order at 26 (Conclusion of Law). This is precisely the type of Monday morning 

quarterbacking courts should avoid. Nevertheless, the ALJ did just that without providing any 

case law establishing why that was appropriate, or why the District should be held to the 

standards set forth by the Parent’s witnesses.

In summary, the ALJ not only failed to provide any case law justifying the secondguessing of data collection methodology used by the District, she also failed to address 

significant case law to the contrary.

2. The ALJ ignored on point case law and testimony concerning the amount of 

weight that should be given to all of the expert witnesses who testified

The ALJ gave significantly more deference to the testimony of the Parent’s expert 

witnesses than to the District’s expert witnesses. The ALJ, however, ignored and refused to 

address or distinguish significant case law provided by the District undermining such deference.

The ALJ cited K.S. v. Fremont Unified School District, 545 F. Supp. 2d 995 (N. D. Cal. 

2008) to establish that conclusion that ALJs should be granted deference when making 

determinations regarding the weight granted to expert witnesses. DP 14-104 Final Order at 24-

25. The ALJ contends that this case gives her broad discretion to make sweeping statements 

discounting the testimony from the District’s expert witnesses. See, e.g., DP 14-104 Final Order 

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at 26 (ALJ concluding, “District’s analysis was not persuasive.”) and Id. at 25 (ALJ concluding, 

“Counsel’s attempt to rehabilitate Ms. Jewell on cross-examination was not persuasive.”)

However, the ALJ did not distinguish or even mention significant case law cited by the 

District contradicting the deference afforded by the ALJ. For instance, the ALJ made no 

reference to Manteca Unified School District, 50 IDELR 298 at 3-4 (SEA Ca June 27, 2008), 

which establishes that experts who have actually met, assessed, or worked with child are entitled 

to greater weight than an expert who has not, despite the testimony at hearing that Dr. Sutton has 

never provided a direct, formal evaluation or observation of Student for purposes of educational 

programming. Tr. Vol. 4, 4-10. Conversely, all of the District’s experts have worked with 

Student directly. Tr. Vol. 2, 11:9-11; Tr. Vol. 2, 123:24-124:5; and Tr. Vol. 1, 159:14-20 (Kolb 

testifying he used to see Student on a daily basis).

Similarly, the ALJ did not distinguish or even mention Omey v. Senior and Disabled 

Services Div., 124 Or App 112, 115, 861 P2d 394 (1993), which establishes that greater weight 

should be given to witness who had more recently treated the individual at issue, despite the fact 

that Dr. Gentry has not had any contact with Student since February of 2010, over four years ago

and that he testified that he doesn’t “know [Student] now like [he] knew [Student] years ago.” 

Tr. Vol. 4, 43:2-3 and Tr. Vol. 4, 75:2-77:21. Not only did the ALJ not mention that case law, 

she ignored and made no mention of that testimony.

The ALJ also did not distinguish or mention Aetna Casualty v. Robinson, 115 Or App 

154, 158, 836 P2d 1362 (1992), which establishes that the fact that a witness lacks current 

licensure should impact the weight given opinion to that witness’s opinion. The ALJ made no 

mention of this case even though the testimony at hearing was that Dr. Sutton has not held a 

teaching license in any state since well before the Student even entered her district (i.e., she has 

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not held a teaching license in any state since 2009 or earlier). Tr. Vol. 4, 114:17-115:14. 

Similarly, Dr. Gentry testified that he is neither certified as a school psychologist in Oregon, nor 

is he licensed as a board psychologist in Oregon. Tr. Vol. 4, 63:17-24. And, neither of Parent’s 

witnesses were familiar with the ESY data collection and determination requirements in the state 

of Oregon. In contrast, all of the District’s experts were designated as experts not just in special 

education, but specifically ESY procedures in Oregon, and all had served Student directly during 

the IEP school year at issue. Tr. Vol. 2, 122:24-124:5; Tr. Vol. 2, 9:24-11:11; Vol. 1, 157:21-

160:20.

Again, all of these cases were provided to the ALJ in posthearing briefing, yet none of 

them were addressed or even mentioned. Rather, the ALJ simply stated, “I give greater weight to 

those who testified that District’s data was not reliable. The testimony of Gentry and Sutton was 

more persuasive, logical, and based on a long history of working with Student.” DP 14-104 Final 

Order at 26.

Although she granted the Parent’s witnesses great deference because of their “long 

history” with Student, the ALJ failed to mention testimony to the opposite. For instance, as stated 

above the ALJ never mentioned Dr. Gentry’s concession early in his testimony that he could not 

make any judgments about the fidelity of the District’s data collection process or Dr. Sutton’s 

testimony that she could not say whether the Student would be harmed by a break in education.

Tr. Vol. 3, 24:14-25:8 and Tr. Vol. 4.110:3-22.

Next, although the ALJ concluded that the Parent’s experts’ analysis of the data was 

more logical and persuasive, the ALJ made no reference to the testimony at hearing that neither 

one of the Parent’s witnesses ever consulted with District staff regarding the meaning of the raw 

data or whether additional interpretation, data and data analysis had occurred after the raw data 

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sheets were generated. Tr. Vol. 3, 74:10-18 and Vol. 3, 114:12-16. Rather, the testimony of 

Parent’s expert witnesses was based solely on assumptions about what they saw on the raw data 

sheets provided to them; Tr. Vol. 3, 35:15-23 (in regards to the number of trials used, Gentry 

testifying “I would assume if its not written [...] So I’m assuming that if it doesn’t say less than 

10, that it was 10.” Tr. Vol. 3, 42:25-43:12 (Gentry testifying to his understand of Student’s IEP, 

stating, “I mean, so I have to assume that the IEP team chose these IEP goals for – and I don’t 

know – I don’t know [Student] now like I knew [Student] years ago [...] “I would assume that the 

IEP team created an IEP and chose goals that were a significant need for [Student] * * * ” and 

“you have to assume that these goals are the five or four goals that are really important to 

increasing or decreasing problematic social behavior.”); Tr. Vol. 3, 88:18-89:1 (Gentry having to 

assume how the District collects data, “I’m assuming the 12/12, 12/13 are the dates [...] I’m 

assuming, because it’s a goal, that that’s their form of data collection.”); Tr. Vol. 3, 100:13-22 

(Sutton testifying that she had to assume why the District chose to collect certain data after 

Parent directly asked her about the fidelity of the raw data – “And it looks like somebody 

decided to change it. And I don’t know the reason why. But I’m assuming there was a reason for 

it. I don’t know.”)

Similarly, neither of Parent’s experts ever interviewed, communicated with, or requested 

additional documents from the District in order to assist in the formation of their opinions – this 

was the first time the District had heard from either of these individuals. Tr. Vol. 4, 64:16-19; Tr. 

Vol. 4, 74:7-75:1; Tr. Vol. 4, 113:11-20; Tr. Vol. 4, 114:12-16; Tr. Vol. 4, 120:11-123:3.

Moreover, the testimony at hearing was that the raw data sheets that Student’s Parent had 

his experts review (and which the ALJ relied upon so heavily in her determination that Student 

qualified for ESY) was subject to filtering, correction and interpretation via Dorothy Jewell’s 

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professional knowledge of Student. Tr. Vol. 3, 106:25-107:9. However, neither of Parent’s 

experts talked to Dorothy Jewell about how she collected the raw data or how she interpreted it. 

Essentially, the expert witnesses based their opinions off of what amounted to Ms. Jewel’s notes, 

without knowing how she collected that information or what she did with it after collecting it.

3. The ALJ held the District to standards concerning the use of 

regression/recoupment data that is inconsistent with federal law and her own 

prior rulings

The ALJ concluded that the District relied too heavily on its regression/recoupment 

analysis in determining whether Student qualified for ESY. DP 14-104 Final Order at 25 (“Ms. 

Jewell’s application of a single standard, requiring regression-recoupment data as the sole basis 

for ESY eligibility is not in accord with federal or state law* * *”). The ALJ relied heavily on the 

case, Johnson v. Independent School Dist. No. 4 of Bixby, Tulsa County, Okla., 921 F. 2d 1022 

(10 Cir. 1990), to support the conclusion that districts must consider more than just 

regression/recoupment data when making ESY determinations. Id. at 23-24. The ALJ did not cite

any legal authority within the Ninth Circuit supporting this.

However, the U.S. Department of Education (“the ED”) has explicitly stated, sixteen 

years after Johnson was decided, that states are allowed to use regression/recoupment as the sole

criteria for determining ESY. 71 Fed. Reg. 46582 (2006) (“States may use recoupment and 

retention as their sole criteria but they are not limited to these standards and have considerable 

flexibility in determining eligibility for ESY services and establishing State standards for making 

ESY determinations.”

3

). This was something the District included in its Posthearing Brief for CP 

I and, in fact, the ALJ quoted in her first CP I Final Order. DP 14-102 Final Order at 17. Again, 

the ALJ utterly disregarded her own legal analysis from CP I in the CP II Final Order without 

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any justification or explanation. Similarly, the ALJ did not address or distinguish numerous cases 

briefed during CP I (and, therefore, in the CP II record), including those from the Ninth Circuit

that established regression/recoupment analyses as the appropriate standard for ESY 

determination. See, e.g., N.B.v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1210-11 (9th Cir. 

2008) (holding that district court did not err in applying a regression/recoupment standard in 

determining child entitled to ESY services); Cordrey v. Euckert, 17 IDELR 104 (6th Cir.1990), 

cert. denied, 499 U.S. 938, 110 LRP 38027 (1991); Alamo Heights Indep. Sch. Dist. v. State Bd. 

of Educ., 557 IDELR 315 (5th Cir. 1986); McQueen v. Colorado Springs Sch. Dist. No. 11, 419 

F. Supp. 2d 1303, 1307-09 (D. Colo. 2006), rev’d on other grounds, 488 F.3d 868 (10th Cir. 

2007) (finding that district court should have dismissed parents’ case before even considering 

merits due to parents’ failure to exhaust administrative remedies).

Additionally, the ALJ’s ruling in CP II that the District erred by relying on a 

regression/recoupment standard is inconsistent with this same ALJ’s ruling in CP I. In CP I the 

ALJ ruled that the District’s policy and procedure of using regression/recoupment data to make 

ESY determinations was in line with state and federal law. DP 14-102 Final Order at 17 (ALJ 

concluding, “Testimony and documentary evidence at hearing showed that the District, in 

alignment with State policy, bases its ESY eligibility on regression/recoupment data unless no 

data is, or would be, available.”) However, in CP II, she now finds the District’s reliance on 

regression/recoupment data inappropriate. DP 14-104 Final Order at 23 (“Under federal law, 

regression-recoupment is not the standard for availability of ESY services.”) She does not clarify 

this discrepancy other than by stating, patly:

 3 ED declining to add language to § 300.106 to make it so that “regression and retention” data 

could not be the sole criteria for determining a child’s eligibility for ESY.

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“As argued by District previously in case number DP 14-102, a district may rely 

on regression-recoupment data to determine ESY eligibility a child’s eligibility. 

However, a child’s eligibility determination must account for “the individual 

needs of the child and [a denial of ESY] results in denial of FAPE when the child 

has unique needs and requires special education and related services in excess of 

the academic year. * * *” Id.

The ALJ, however, provided no citation to any evidence in the record supporting that the 

District’s method of determining ESY eligibility failed to align with the specific needs of the 

Student. In yet another example of internal inconsistency, in her ruling in CP I the ALJ 

specifically noted and concurred with the District’s approach of using a student’s IEP goals and 

objectives – which by definition are aligned with the unique educational needs of a student – as 

the measures for ESY recoupment/regression data. DP 14-102 Final Order at 17-18. The 

District’s ESY guidelines, which the ALJ held align with comport federal and state law, read, 

“ESY is intended to maintain a skill or behavior directly related to one or more IEP goals,” as 

well as “ESY services are determined by the IEP team specifically for the student’s specific 

needs: only those needs that relate directly to one or more IEP goals.” Id. at 5-6. 

Lastly, even if the District did need to consider criteria outside of regression/recoupment 

data, the testimony at hearing was that members of the IEP team did consider such criteria. For 

example, the District’s Autism specialist, Kirby Erickson, who provided ESY to Student over the 

summer of 2013 testified that it was her professional opinion that Student would be more 

benefited by a break in direct education than ESY services because he appeared to be getting 

worn out by school. Tr. Vol. 4, 146:21-147:13 (opining that, based on personal observation, 

Student would have benefited by having a break from instruction rather than ESY services 

during the summer of 2013).

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In summary, the ALJ selectively chose what legal authorities she believed were 

applicable concerning what needs to be considered during ESY determinations, as well as 

ignored relevant testimony conflicting with her Conclusions.

4. The ALJ’s Order requires Student to work on goals and objectives everyone, 

including the Parent, have agreed are no longer appropriate for Student

Finally, as noted in the District’s Motion for a Temporary Restraining Order (“TRO”)

even if it were found that the District denied Student FAPE, the Remedies ordered by the ALJ 

would still be inappropriate. District’s Motion for TRO at 10-12, 13. 

As noted by the ALJ in the CP I Final Order, and as required by the District policies and 

procedures (which the ALJ concluded was in line with state and federal law), “ESY is intended 

to maintain a skill or behavior directly related to one or more IEP goals.” DP 14-102 Final Order 

at 5. The Remedy set forth in the ALJ’s CP II Final Order requires the District to provide ESY 

“with regard to Student’s Annual Goals and Short Term Objectives as set forth in the May 23, 

2013 IEP.” DP 14-104 at 28. However, as this court has noted on previous occasions, the record 

reflects that many of the goals and objectives of the May 2013 IEP were discarded or superseded 

by the subsequent IEP meetings. Order Granting TRO at 5-6 and Order Granting Stay of 

Remedies at 6. As such, the ALJ’s Final Order requires the District to provide ESY that is not 

connected to any of Student’s current IEP goals. The evidence at hearing was that the May 2013 

IEP was written over a year ago by a school district in Hawaii, and since then the District in 

Oregon has met with the Parent on multiple occasions to write and rework a new IEP. For 

instance, when the Parent and the District implemented a new IEP for Student in November 

2013, both parties decided that the old goals and objectives were no longer appropriate for 

Student and that there needed to be a substantial shift in the educational curriculum and 

methodologies that would be used with Student. Tr. Vol. 2, 30:19-21 (testimony that the 

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“objectives [on the new IEP] differed greatly” from the Hawaii IEP); Tr. Vol. 2, 40:8-23 

(testimony that there were changes in the instructional approach and methodology in the new 

IEP). Moreover, the testimony at hearing was that Parent was involved in determining these new 

goals and objectives. Tr. Vol. 2, 23:17-21. 

Second, the ALJ’s Final Order required the District to provide ESY to Student in all 

educational areas even though the testimony at hearing and in the record was that the Parent 

agreed that it was not appropriate to provide Student ESY in the area of writing. Tr. Vol. 3, 

38:17-39:2; Ex. D11 at 5. 

Thus, the ALJ is requiring the District to provide ESY in areas that everyone, including 

the Parent, agrees are not appropriate and for goals and objectives that everyone, including the 

Parent, agrees are no longer appropriate. 

The Student’s Parent has forth an explanation for the Ordered Remedy, stating, “If the 

order had been laid out in any other format, or a comma had been inserted after the phrase “short 

term objectives”, the Plaintiff’s motion would have been significantly shorter and this Court 

would not have found reason to be concerned with the ALJ’s order.” Answer to District’s Motion 

for TRO at 2-3. As stated by this court, such an explanation, “although plausible, is at odds with 

the plain language of the ALJ’s Order.” Order Granting Stay of Remedies at 6. Even if this court 

were to assume that the ALJ was attempting to do what the Parent suggests4, such a remedy 

would still be problematic. First, assuming that the ALJ meant something other than what the 

plan language of her Final Order meant, such an interpretation speaks to the level of care and 

thoroughness with which she composed the Final Order; secondly, and more importantly, such a 

remedy would still be contradictory to relevant caselaw.

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35 -- DISTRICT’S OPENING BRIEF Confidential/Filed Under Seal

Even when a parent proves that a school fails to offer FAPE, the parent must still present 

evidence regarding the appropriate scope of services or remedy he is seeking. Parenteau v. 

Prescott Unified School Dist., 2008 WL 5214997, *10 (D Ariz Dec 11, 2008) (noting that even if 

parent had proven that prior school district had failed to offer a FAPE, fact that parent failed to 

put on any evidence regarding the appropriate scope of services or any specifics about the 

specific remedy he was seeking resulted in parent not being entitled to any remedy).

Other courts have also held that an award of ESY based on a prior IEP is not entitled to 

deference where there was little to no evidence at hearing regarding the appropriateness of this 

remedy or how it would address any failures by District to provide FAPE. Reid ex rel. Reid v. 

District of Columbia, 401 F.3d 516, 521 (D.C.Cir.2005) (“[T]he district court, obligated by 

IDEA to ensure that relief set forth in the administrative award was ‘appropriate,’ could not 

simply rely on the hearing officer's exercise of discretion.”).

In this case, the Parent presented no evidence or testimony at hearing regarding what an 

appropriate remedy would be. Instead, the Parent merely stated in his posthearing brief that, 

“The details of requested ESY compensatory education are outlined and enumerated in the 

Hawaii IEP which was in effect prior to the current IEP.” The Parent presented no testimony or 

evidence as to why this remedy would be appropriate and the District never had the opportunity 

to cross-examine the Parent on the issue of why he believes that this remedy is appropriate.

V. CONCLUSION

Because the ALJ has blatantly ignored critical evidence and case law and failed to 

explain her reasoning for doing so, and has on multiple occasional applied an incorrect and 

 4 The District is not conceding this point, but believes it would be beneficial to continue making 

arguments under that assumption.

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36 -- DISTRICT’S OPENING BRIEF Confidential/Filed Under Seal

strained interpretation of the requirements of the IDEA, the court should reverse the ALJ’s Final 

Order with regard to the issues identified above.

Dated: November 28, 2014.

THE HUNGERFORD LAW FIRM

/s/ Richard Cohn-Lee_______________ 

Richard G. Cohn-Lee, OSB No. 952331

E-mail: Rich@hungerfordlaw.com

Joel E. Hungerford, OSB No. 140940

E-mail: Joel@hungerfordlaw.com

Telephone: (503) 706-7956

Facsimile: (503) 655-1429

Of Attorneys for Plaintiff–Appellant

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37 -- DISTRICT’S OPENING BRIEF Confidential/Filed Under Seal

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing DISTRICT’S OPENING BRIEF on the 

following named person on the date indicated below by:

[ ] mailing with postage prepaid;

[ ] hand delivery;

[ x ] electronic delivery;

[ ] overnight delivery

to said person a true copy thereof at their last-known address indicated below:

Ray Parenteau

1370 SW David Drive

Grants Pass, OR 97527

 For Defendant-Appellee

DATED: November 28, 2014.

THE HUNGERFORD LAW FIRM

/s/ Richard Cohn-Lee_______________ 

Richard G. Cohn-Lee, OSB No. 952331

E-mail: Rich@hungerfordlaw.com

Joel E. Hungerford, OSB No. 140940

E-mail: Joel@hungerfordlaw.com

Telephone: (503) 706-7956

Facsimile: (503) 655-1429

Of Attorneys for Plaintiff–Appellant

Case 1:14-cv-01115-PA Document 26 Filed 11/28/14 Page 37 of 38
 

38 -- DISTRICT’S OPENING BRIEF Confidential/Filed Under Seal

CERTIFICATE OF COMPLIANCE

This brief complies with the applicable word-count limitation under LR 7-2(b), 26-3(b), 

54-1(c), or 54-3(e) because it contains 9,519 words, including headings, footnotes, and 

quotations, but excluding the caption, table of contents, table of cases and authorities, signature 

block, exhibits, and any certificates of counsel.

DATED: November 28, 2014.

THE HUNGERFORD LAW FIRM

/s/ Richard Cohn-Lee_______________ 

Richard G. Cohn-Lee, OSB No. 952331

E-mail: Rich@hungerfordlaw.com

Joel E. Hungerford, OSB No. 140940

E-mail: Joel@hungerfordlaw.com

Telephone: (503) 706-7956

Facsimile: (503) 655-1429

Of Attorneys for Plaintiff–Appellant

Case 1:14-cv-01115-PA Document 26 Filed 11/28/14 Page 38 of 38