On November 17, 2015, the Ninth Circuit Court of Appeals issued its decision in I.R. v. Los Angeles Unified School District, which includes two rulings:
The school district had duty to initiate a due process hearing following mother's refusal to agree with the individualized education program's (IEP) recommended placement;
The school district's delay of more than a year and a half in requesting a due process hearing was unreasonable.
In this case, back in 2006, the Los Angeles Unified School District found I.R. eligible for special education under the category of autistic-like behaviors. However, his mother decided to place him in a private school.
A few years later, in September of 2010, mother decided to enroll her son in public school. The child was placed in a general education classroom with a 1:1 aide. Later that same school year, in an IEP in November of 2010, the school district recommended placement in a special education environment, contending that the student needed individualized instruction in a small group setting, which was not available in the general education setting.
Mother disagreed with this placement. Instead, she wanted her son to remain in the general education environment with a 1:1 aide. Mother never consented to the special education placement, and her son remained in the general education classroom with a 1:1 aide.
In May of 2012, mother, on behalf of her son, filed for due process with the Office of Administrative Hearings, which is the California administrative court that hears special education cases. In the complaint she raised several issues, one of which was whether the school district had denied her son a free appropriate public education (FAPE) by failing to provide him with an appropriate placement.
Under California Education Code section 56346(f) school districts are to initiate a due process hearing if the school district determines that a portion of an IEP to which a parent does not consent is necessary to provide a child with a FAPE under the Individuals with Disabilities Education Act (IDEA).
In 2012, a due process hearing was held to determine the issues. The administrative law judge’s (ALJ) decision acknowledged that the general education placement was inappropriate, but the judge did not hold the school district liable for failing to provide an appropriate placement for the student. Instead, the ALJ concluded that that school district had offered an appropriate placement, but mother’s refusal to consent to the placement prevented the school district from providing it.
Federal District Court
Mother appealed the ALJ’s decision to federal district court, which held that the school district had been unable to initiate a due process hearing or take action to override the parents' failure to consent under 20 U.S.C. § 1414.
Ninth Circuit Court of Appeals
The Ninth Circuit Court of Appeals disagreed with the lower courts' rulings. The Ninth Circuit explained that merely offering a FAPE is not enough to immunize a school district from liability. Instead, school districts in California must comply with the additional requirement imposed by the California Education Code of initiating a due process hearing if agreement between the district and the parent on an appropriate placement cannot be reached.
In its decision, the Ninth Circuit Court of Appeals noted that the IDEA forecloses a school district from initiating a due process hearing only where a parent has refused consent before the intial provision of special education and related services. The case at hand did not concern the initial provision of special education services because the child had received special education services prior to mother's disagreement with her son's IEP in November of 2010.
Martha Millar is a special education attorney who serves clients throughout California.
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