Facts

From 2002 to 2006, K.S. was a student at an elementary school in the Fremont Unified School District (District), eligible for special education and related services for autism. The District and K.S.'s parents had agreed on placement and services set out in an October 2002 Individualized Education Program (IEP), but subsequently disagreed in the following years.

In 2006, K.S. requested a due process hearing, after which the administrative law judge (ALJ) determined that she had made progress under the District's IEPs during the years, relying on the school's psychological and expert testimony in determining her progress which was made by document review alone.

K.S. appealed the decision, arguing in relevant part that the psychological expert did not have the expertise to make a determination of her cognitive abilities. The district court subsequently found that the ALJ erred in his method of weighing witness credibility and his determination that the District's witnesses were more credible than K.S.'s witnesses. The court also determined that further evidence was required to on the issue of the child's cognitive abilities.

The court remanded the case back to the ALJ to determine if K.S. was capable of making more significant progress and whether the District had denied her a Free Appropriate Public Education (FAPE), and to re-weigh witness credibility.

PLAINTIFF'S CONTENTIONS:
K.S. contended that the District's program was not designed to provide her with appropriate education or to meet her unique needs. K.S. alleged that she made no progress on her IEP goals or such little progress that it was meaningless and de minimus, and that she should have 30 to 35 hours a week of one-on-one instruction with a behaviorist.

DEFENDANT'S CONTENTIONS:
The District contended that K.S. was not capable of making greater progress than she made under the IEPs, and that her progress was consistent with her cognitive abilities.

Result

The ALJ reaffirmed his initial decision in favor of the District, and the district court agreed. The case is on appeal.