School District Refuses to Assess Failing Student for Special Education Eligibility

October 13, 2015




My thirteen-year-old son has struggled in school since kindergarten and has failed most of his classes during the past two years. Last March, I wrote a letter to the school principal requesting that my son be assessed to determine if he is eligible for special education, but I didn’t get a response. At the beginning of this school year, I talked with the principal, and he told me that he doesn’t think my son needs to be assessed for special education because my son is getting extra help at school. What can I do to get my son assessed?


Too often school districts ignore evidence that a child may need to be evaluated for special education. Months, even years may go by during which time the school district fails to provide the child with the special education support he or she needs. In the meantime, the child may lose ground academically and may endure frustration and anxiety in school. Thankfully, special education laws are designed to help parents obtain needed support for their special needs children.


From what you tell me regarding your son’s struggles in school since kindergarten, the school district may have violated “child find” requirements. Under the Individuals with Disabilities Education Act, commonly known as the “IDEA”, our federal special education law, school districts are responsible for child find, which means that they must timely identify all children suspected of having disabilities that reside in their school district, determine if evaluations are needed, and, with parent consent, conduct evaluations in all areas of suspected disability.


In California, once a school district receives a written request for assessment from a parent, guardian, teacher, or other service provider, the school district generally has fifteen days to provide the parent with an assessment plan. When a referral for assessment is made ten days or less prior to the end of the regular year, the assessment plan must be developed within ten days after school begins the following school year. The assessment plan will explain the kinds of assessments that are to be conducted.


If the school district refuses to assess the child, it must inform the parents in writing of its refusal, explain the reason for its refusal, and inform the parents that they have procedural safeguards under the IDEA, including the right to due process to challenge the school district’s refusal to assess the child.


Given these possible violations of federal and state special education law, you should seek a legal consultation from a knowledgeable special education attorney. The attorney will need to know more about your son’s suspected disability and your son’s struggles in school in order to advise you as to whether there may have been a child find violation. Ms. Millar is a special education attorney with offices in Roseville and Grass Valley. For more information, call 530-273-2740, or visit her website at


Please note: The information in this article should not be construed as legal advice, but is general information only for residents of California. Any persons with concerns about their child's education are encouraged to seek a consultation from a knowledgeable special education attorney or advocate.



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