The Individuals with Disabilities Education Act (IDEA) gives federal funds to states that provide a free appropriate public education (FAPE) to children with disabilities. An eligible child has a right to a FAPE, which includes both instructions tailored to meet the child’s needs and also support services to allow the child to benefit from such instruction.
School districts provide a FAPE primarily through an individualized education program (IEP). The IEP is developed by the child’s IEP team, which includes the child’s parents, teachers, and school officials. The IEP also documents the child’s levels of academic achievement and identifies annual educational goals.
IDEA provides for specific procedural safeguards to address disputes over an IEP. If a parent is not satisfied with the IEP or has another complaint about the school district’s provision of the FAPE, the parent can file a complaint with the responsible state or local educational agency. Upon receiving the complaint, the agency must convene a “preliminary meeting” with the IEP team and the child’s parents. If the parents are still unsatisfied, the parties can proceed with a due process hearing before a neutral arbiter, who determines whether the child has received a FAPE.
B.W.’s parents and Capistrano Unified School District disagreed about the services provided to B.W throughout her kindergarten year. At the end of the year, at the IEP team meeting, B.W.’s parents were concerned that several different people had helped B.W. throughout the years so B.W. did not know who was supporting her. B.W.’s parents brought their own expert to the meeting, who recommended B.W. should have support throughout the entire length of the school day. The District disagreed.
After B.W. started first grade, the IEP team met again. The District proposed new goals and accommodations that reflected the parents’ expert’s recommendations. B.W.’s parents received a copy of the annual IEP offer but never consented or requested another meeting.
A couple of months later, B.W.’s parents filed an administrative due process complaint alleging inadequacies with the kindergarten and first-grade IEP. That winter, B.W.’s parents unilaterally withdrew B.W. from public school and enrolled her at a private school. B.W.’s parents told the District that B.W. would stay in private school for the rest of the school year and for second grade. B.W.’s parents sought reimbursement for the private school tuition, programs, and related services for both school years. The District denied the request for reimbursement and offered an IEP meeting. B.W.’s parents did not respond and they paid her registration fees for the private school. They also withdrew their administrative due process complaint. B.W.’s first grade IEP expired at the end of the school year.
B.W. attended a private school for the second grade, and B.W.’s parents filed a new due process complaint requesting reimbursement for the private school costs. The District again denied the request and offered an IEP meeting. Eventually, the District filed an administrative complaint, asking an Administrative Law Judge (ALJ) to order an assessment of B.W. or release the District from its IEP obligations.
Near the end of B.W.’s second grade, the District held an annual IEP meeting for B.W. The parents agreed the assessment was necessary but they did not consent. Shortly after, B.W.’s counsel consented to the District’s plan to assess B.W. but only if the District withdrew its complaint. The District did so, but B.W. was never produced for an assessment.
With respect to B.W.’s parents’ second complaint, the ALJ ruled in favor of B.W.’s parents on most of the issues, concluding that the District denied B.W. a FAPE. Both parties filed complaints challenging the decision in federal court. The trial court reversed and affirmed the ALJ’s order in part. Both parties appealed, and the Ninth Circuit addressed the following issues left on appeal: (1) whether the goals in the District’s first grade IEP were inadequate, (2) whether the District had to file for due process to defend the first-grade IEP and (3) whether the District needed to develop a second-grade IEP.
On the first issue, the Ninth Circuit held that the first-grade IEP goals were adequate because they addressed B.W.’s needs and the District considered the parents’ expert’s recommendations. The Ninth Circuit rejected the parents’ argument that there were no goals dedicated to classroom specialization, redirection, or behavior support. The parents’ own experts testified that the IEP addressed B.W.’s recommended goals and that the proposed goals were appropriate.
B.W.’s parents also argued that the IEP goals were inadequate because their expert recommended that B.W. have no more than two behavior tutors during the day. The Ninth Circuit held that the trial court properly found that the IEP team considered the parents’ concerns and disagreed, but did not infringe on the parent’s participation in their child’s FAPE. The Ninth Circuit reasoned that parents’ participation does not require school administrators to automatically defer to parents’ concerns. Additionally, the Ninth Circuit rejected the parents’ argument that the District’s inconsistency of classroom support data rendered the goals of the IEP inadequate under IDEA. Rather, IDEA requires that the IEP be reasonably calculated to enable a child to make progress in light of the child’s individual needs, and does not require the IEP team to rely on quantitative data to do so.
On the second issue, the Ninth Circuit rejected the parents’ argument that the District had an obligation to file a due process claim to defend the first-grade IEP when the parents disagreed that the IEP offer was adequate. Under the IDEA regulations, parental consent is generally not required for a revision of the annual IEP. However, the regulations allow states to require parental consent for other services, including IEP revisions if the state “ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent’s refusal to consent does not result in a failure to provide the child with FAPE.” Under California Education Code section 56346, parents may consent to some components of an IEP and not others. In that situation, the components consented to “shall be implemented so as not to delay providing instruction and services to the child.” However, if a public agency determines that the proposed component to which the parent does not consent is necessary to provide a FAPE, the public agency must file a due process hearing. Therefore, it is only the public agency’s determination that triggers an obligation to file a due process complaint. Because the District had determined that the implementation of the first grade IEP was not necessary for B.W.’s receipt of a FAPE, it did not need to file for due process.
On the final issue, the Ninth Circuit held that the District does not need to prepare an IEP if a child has been enrolled in a private school by her parents and a claim for reimbursement has been filed. Under IDEA, parents who unilaterally enroll their child in private school can seek reimbursement for the costs of special education and related services when a school district fails to provide a FAPE and the private school placement is appropriate. However, the district only needs to prepare an IEP if the parents ask for one after a child has been enrolled in a private school. The school district’s obligation to prepare an IEP does not depend on whether the parents make a claim for reimbursement. Because B.W.’s parents unilaterally enrolled her in private school, the District did not need to prepare an IEP, even though the parents filed a claim for reimbursement.
Ultimately, the Ninth Circuit affirmed the trial court’s ruling.
Capistrano Unified Sch. Dist. v. S.W. (9th Cir. 2021) 21 F.4th 1125.
