Eric Rodriguez; Kimberlin Rodriguez v. San Mateo Union High School District

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lyle E. Strom, Senior US District Judge for District of
Nebraska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC RODRIGUEZ; KIMBERLIN
RODRIGUEZ,
Plaintiffs - Appellants,
v.
SAN MATEO UNION HIGH SCHOOL
DISTRICT,
Defendant - Appellee.
No. 08-16759
D.C. No. 3:07-cv-02360-PJH
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted October 7, 2009
San Francisco, California
Before: SCHROEDER and BERZON, Circuit Judges, and STROM, ** District
Judge.
Plaintiffs Eric Rodriguez and his mother Kimberlin Rodriguez appeal the
district court’s entry of summary judgment in favor of the defendant San Mateo
FILED
NOV 13 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
Union High School District (“School District”) and dismissing plaintiffs’ claims
that were brought under the Individuals with Disabilities Education Act (“IDEA”).
Appellants first contend that the district failed to provide Eric with a Free
Appropriate Public Education (“FAPE”) while he attended the high school.
Appellants argue that the School District was required to conduct a behavioral
intervention plan (“BIP”) as defined by Cal. Code Regs. tit. V, § 3001(g). The
ALJ found that Eric’s behavior did not constitute a “serious behavior problem” as
defined in the regulations, and therefore a BIP was not required. See Cal. Code
Regs. tit. V, §§ 3001(g), (ab). The record reflects that Eric’s behavioral problems
did not rise to the level of severity necessary to trigger the need for a BIP. He did
not cause harm or a serious threat of harm to persons or property and plaintiffs do
not document other circumstances that would satisfy the regulation’s requirements.
Appellants also contend that Eric was denied a FAPE when the speech therapist
changed the frequency of the therapy to consultation services. The therapist’s
testimony, however, adequately explained the reasons for this decision. The
district court also properly affirmed the ALJ’s finding that the School District did
not deny Eric a FAPE by failing to refer him to county mental health services. The
district court correctly analyzed the statutory provisions and concluded that the

-- 2 of 4 --

3
statute did not require the participation of the mental health agency in Eric’s case.
There was no error. See generally Cal. Gov’t Code § 7576 (1985).
For the first time on appeal, appellants contend that the school’s own
Individualized Education Program (“IEP”) required consultation with mental
health services, but the IEP stated only that it would do such consultation if the
condition worsened; no argument that the IEP compelled a referral was raised
before ALJ. Because the ALJ and district court properly held that the School
District was not required to develop a “behavioral intervention plan,” it was not
required to have the school psychologist present at the 2003 IEP meetings. See 20
U.S.C. § 1414(d)(1)(B) (2000); 34 C.F.R. § 300.344(a) (1999); Cal. Educ. Code
§ 56341 (2002).
Pursuant to agreements between the juvenile court and his family, Eric was
placed in an alternative educational placement outside the School District between
March 2004 and June 2006. The School District was not consulted about the
alternative placement. The Supreme Court’s decision in Burlington v. Department
of Education, holds that where a parent unilaterally places a child in an alternative
setting after contesting an IEP, the parent does so at her own financial risk in the
event that it is determined that the IEP was appropriate. 471 U.S. 359, 373-74
(1985). The California appellate court decision in In re John K. does not aid

-- 3 of 4 --

4
appellants, for the court in that case found the district had not provided the student
in question with a FAPE prior to his alternative placement. 170 Cal. App. 3d 783,
797 (Cal. Ct. App. 1985). Here the School District did.
AFFIRMED.

-- 4 of 4 --