Capistrano Unified Sch. Dist. v. S.W.

• Decision Date: 30 December 2021
• Docket Number: 20-55987,Nos. 20-55961,s. 20-55961
• Citation: 21 F.4th 1125
• Parties: CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant/Cross-Appellee, v. S.W. and C.W., on behalf of their minor child, B.W., Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.4th 1125

CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant/Cross-Appellee,

v.S.W. and C.W., on behalf of their minor child, B.W., Defendants-Appellees/Cross-Appellants.

Nos. 20-55961

20-55987

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 3, 2021 Pasadena, California

Filed December 30, 2021

S. Daniel Harbottle (argued) and Tracy Petznick Johnson, Harbottle Law Group, Irvine, California, for Plaintiff-Appellant/Cross-Appellee.

Timothy A. Adams (argued) and Lauren-Ashley Caron, Adams & Associates, APLC, Santa Ana, California, for Defendants-Appellees/Cross-Appellants.

Alexis Casillas, Legal Director, Learning Rights Law Center, Los Angeles, California; Selene Almazan-Altobelli, Council of Parent Attorneys and Advocates, Inc., Towson, Maryland; Ellen Marjorie Saideman, Law Office of Ellen Saideman, Barrington, Rhode Island; for Amici Curiae Council of Parent Attorneys and Advocates, Inc. and California Association for Parent-Child Advocacy.

Jennifer L. Meeker, Nossaman LLP, Los Angeles, California; Elizabeth Key, Nossaman LLP, San Francisco, California; for Amicus Curiae California Association of Lawyers for Education.

Before: Mark J. Bennett and Ryan D. Nelson, Circuit Judges, and David A. Ezra,^* District Judge.

R. NELSON, Circuit Judge When B.W. was in first grade, after a dispute over services under the IDEA with Capistrano Unified School District, her parents withdrew her from public school, enrolled her in private school, and filed an administrative complaint seeking reimbursement for tuition and services. Capistrano's proposed placement and services for first grade were indisputably inadequate. What is mainly at issue are the consequences of that inadequacy. We hold that (1) the goals (as opposed to services) in B.W.’s first grade Individualized Education Program ("IEP") were not inadequate; (2) Capistrano did not have to file for due process to defend the first grade IEP; and (3) Capistrano did not have to have an IEP in place for the second grade. We thus affirm the district court on all three issues.¹

I

A

The Individuals with Disabilities Education Act ("IDEA") "offers federal funds to States" for providing a free appropriate public education ("FAPE") "to all children with certain physical or intellectual disabilities." Fry ex rel. E.F. v. Napoleon Cmty. Schs. , ––– U.S. ––––, 137 S. Ct. 743, 748, 197 L.Ed.2d 46 (2017) (citing 20 U.S.C. § 1412(a)(1)(A) ). "An eligible child" has "a substantive right" to a FAPE, which consists of "both instruction tailored to meet a child's unique needs and sufficient supportive services to permit the child to benefit from that instruction." Id. at 748–49 (citing 20 U.S.C. §§ 1401(9), (26), (29) ) (internal quotation marks omitted). School districts must provide a FAPE "at public expense, under public supervision and direction, ... in conformity with" an IEP. 20 U.S.C. § 1401(9).

The IEP, "a personalized plan to meet all of the child's educational needs," is "the primary vehicle for providing each child with" a FAPE. Fry , 137 S. Ct. at 749 (internal quotation marks omitted); see also 20 U.S.C. § 1414(d). It is put together by the IEP Team, "a group of school officials, teachers, and parents."

Fry , 137 S. Ct. at 749 (quoting 20 U.S.C. §§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B) ). "[T]he IEP documents the child's current ‘levels of academic achievement,’ specifies ‘measurable annual goals’ for how she can ‘make progress in the general education curriculum,’ and lists the ‘special education and related services’ to be provided so that she can ‘advance appropriately toward [those] goals.’ " Id. (second alteration in original) (quoting 20 U.S.C. §§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa) ). The IEP Team must consider "the strengths of the child"; "the concerns of the parents for enhancing the education of their child"; "the results of the initial evaluation or most recent evaluation of the child"; and "the academic, developmental, and functional needs of the child." 20 U.S.C. § 1414(d)(3)(A). The IEP must be in effect at the beginning of each school year and the "local educational agency" must ensure that the IEP Team reviews the IEP annually. 20 U.S.C §§ 1414(d)(2)(A), (4)(A)(i) ; Cal. Educ. Code §§ 56343(d), 56344(c).

"[T]he IDEA establishes formal procedures for resolving disputes" between parents and school districts over IEPs. Fry , 137 S. Ct. at 749. "[A] dissatisfied parent may file a complaint as to any matter concerning the provision of a FAPE with the local or state educational agency (as state law provides)." Id. (citing 20 U.S.C. § 1415(b)(6) ). "That pleading generally triggers a preliminary meeting involving the contending parties." Id. (cleaned up); see also 20 U.S.C. §§ 1415(e), (f)(1)(B)(i). Then, "the matter proceeds to a ‘due process hearing’ before an impartial hearing officer." Id. (quoting 20 U.S.C. § 1415(f)(1)(A) ). "[A]ny decision by a hearing officer on a request for substantive relief ‘shall’ be ‘based on a determination of whether the child received a free appropriate public education.’ " Id. at 754 (quoting 20 U.S.C. § 1415(f)(3)(E)(i) ). "Finally, a parent unhappy with the outcome of the administrative process may seek judicial review by filing a civil action in state or federal court." Id. at 749 (citing 20 U.S.C. § 1415(i)(2)(A) ).

Under the IDEA regulations, parental consent is generally required for initial evaluation, initial provision of special education services, and reevaluation, but not for a revision to an annual IEP. See 34 C.F.R. §§ 300.300(a) – (c). That said, the regulations permit a state 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." Id. § 300.300(d)(2).

California has done so. Under its law implementing the IDEA, if the parent "consents in writing to the receipt of special education and related services for the child but does not consent to all of the components of the [IEP], those components of the program to which the parent has consented shall be implemented so as not to delay providing instruction and services to the child." Cal. Educ. Code § 56346(e). And "if the public agency determines that the proposed special education program component to which the parent does not consent is necessary to provide a free appropriate public education to the child, a due process hearing shall be initiated in accordance with" 20 U.S.C. § 1415(f). Cal. Educ. Code § 56346(f).

Finally, parents who unilaterally place a child in private school may seek reimbursement for the costs of special education and related services. See 20 U.S.C. § 1415. "[C]ourts may grant reimbursement under § 1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE and the private-school placement is appropriate." Forest Grove Sch. Dist. v. T.A. , 557 U.S. 230, 242 n.9, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009). And the IDEA specifies that reimbursement is permitted "for the cost of [private school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." Id. at 248, 129 S.Ct. 2484 (quoting 20 U.S.C. § 1412(a)(10)(C) ). That section was added by amendment in 1997 and elucidates the general authority to grant appropriate relief in 20 U.S.C. § 1415(i)(2)(C)(iii). Id. at 239, 242, 129 S.Ct. 2484. It applies "to students who previously received special education and related services." Forest Grove Sch. Dist. v. T.A. , 523 F.3d 1078, 1087 (9th Cir. 2008), aff'd , 557 U.S. 230, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) ; 20 U.S.C. § 1412(a)(10)(C)(ii).

B

This case arose out of a series of disagreements between B.W.’s parents and Capistrano. They disagreed about services for B.W. throughout her kindergarten year, but those disagreements are not at issue here. At the end of that year, at the IEP meeting, B.W.’s parents said that more "intensive support [was] necessary for [B.W.’s] continued growth/progress." They were concerned that several different people helped B.W. during her kindergarten year and said that B.W. did not know who was supporting her. The parents came to the meeting with their own expert, who recommended that B.W. should "have support for the entire length of the school day." Capistrano disagreed and explained that different tutors helped B.W. become more independent. B.W. completed kindergarten, meeting expectations with high marks in almost all areas.

Then, in the fall, after B.W. started first grade, the IEP Team reconvened. It reviewed B.W.’s transition to first grade and her parents’ concerns about her adjustment to the public school's new campus. Capistrano proposed new goals and accommodations reflecting the parents’ expert's recommendations. B.W.’s parents received a copy of the annual IEP offer. But they never consented to it or requested another IEP meeting.

A couple months into the school year, B.W.’s parents filed an administrative due process complaint alleging inadequacies with both the kindergarten and first grade IEPs.

Then, in winter of that same year, B.W.’s parents unilaterally withdrew B.W. from the public school and enrolled her at a private school. B.W.’s parents told Capistrano that B.W. would stay in private school for the rest of first grade and for second grade. They sought reimbursement for private school tuition, programs, and related services for both school years.

Capistrano denied the parents’ request for reimbursement and proposed an IEP meeting. B.W.’s parents did not respond.² B.W.’s parents then paid her registration fees for the private school. They also unilaterally withdrew their due process complaint, and at the end of the school year, B.W.’s first grade IEP expired.

B.W. continued to attend private school for second grade. Her...