I.R. v. Lausd ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
I.R., a minor by her Mother E.N., No. 13-56211
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-09924-
R-VBK
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
July 10, 2015—Pasadena, California
Filed November 17, 2015
Before: Stephen Reinhardt and Richard R. Clifton, Circuit
Judges, and Miranda M. Du,* District Judge.
Opinion by Judge Du
*
The Honorable Miranda M. Du, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
2 I.R. V. LOS ANGELES USD
SUMMARY**
Individuals with Disabilities Education Act
Reversing the district court’s judgment in an action under
the Individuals with Disabilities Education Act, the panel
concluded that a school district did not initiate a due process
hearing within a reasonable time after a child’s parents failed
to consent to the provision of services necessary to provide a
Free Appropriate Public Education.
California Education Code § 56346(f) required the school
district to initiate a due process hearing if it determined that
a portion of an Individualized Education Program to which
the parents did not consent was necessary to provide the child
with a FAPE. The panel concluded that a period of a year
and a half was too long for the school district to wait to
initiate the hearing. The panel remanded for the district court
to determine the appropriate remedy for the injury of the
child remaining in an inappropriate program for a much
longer period of time than should have been the case.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
I.R. V. LOS ANGELES USD 3
COUNSEL
Jennifer Guze Campbell, Vanessa Jarvis (argued), Special
Education Law Firm, APC, Lakewood, California, for
Plaintiff-Appellant.
David Holmquist, Diane H. Pappas, Patrick J. Balucan
(argued), Office of General Counsel, Los Angeles Unified
School District, Los Angeles, California, for Defendant-
Appellee.
OPINION
DU, District Judge:
California Education Code § 56346(f) requires school
districts to initiate a due process hearing if the school district
determines that a portion of an Individualized Education
Program (“IEP”) to which a parent does not consent is
necessary to provide a child with a Free Appropriate Public
Education (“FAPE”) under the Individuals with Disabilities
Education Act (“IDEA”). 20 U.S.C. §§ 1400–1450. This
appeal raises the issue of a school district’s responsibility to
initiate a due process hearing within a reasonable time after
a child’s parents fail to consent to the provision of services
necessary to provide a FAPE. Because we conclude that a
period of a year and a half is too long for a school district to
wait to initiate a due process hearing pursuant to California
Education Code § 56346(f), we reverse and remand.
4 I.R. V. LOS ANGELES USD
I. BACKGROUND
Appellant I.R. is a child. I.R., through her mother
(“Mother”), contends that Appellee Los Angeles Unified
School District (“LAUSD”) failed to provide I.R. with a
FAPE for the 2010/2011 and 2011/2012 school years in
which I.R. was in second and third grade.
In 2006, in response to Mother’s request for an
assessment, LAUSD found I.R. to be eligible for special
education under the category of “autistic-like” behaviors. An
initial IEP meeting was held in August 2006. However,
Mother decided to enroll I.R. in a private preschool and then
a private school through first grade.
In the fall of 2010, Mother sought to enroll I.R. at
Heliotrope Elementary School, a public school in LAUSD,
for second grade. In September 2010, Mother consented to
portions of the August 2006 IEP but did not consent to other
portions. I.R. was placed in a second grade general education
class with a one-on-one special education aide.
A later IEP, prepared on November 9, 2010,
recommended placement in a special education environment
at Heliotrope. On November 10, 2010, Mother’s counsel
wrote a letter to Heliotrope’s principal in which she
consented to some of the services offered in the IEP but
disagreed with the special education placement. Among other
things, Mother wanted I.R. to be placed in a general
education classroom with a one-on-one aide. In a response
letter dated November 19, 2010, Heliotrope’s principal
affirmed that I.R. would remain in her general education
placement, pursuant to an earlier IEP issued on October 13,
2010. However, the response letter noted that the IEP
I.R. V. LOS ANGELES USD 5
members believed that I.R. required a smaller classroom
setting with individualized instruction, which was not
available in the general education classroom.
Several more IEP meetings were held throughout I.R.’s
second and third grade years, from March 2011 to February
2012. From November 2010 until February 2012, all the
IEPs recommended placing I.R. in a special education
environment.1 Mother consented to portions of the IEPs but
never consented to the IEPs’ proposal to place I.R. outside of
the general education classroom. LAUSD implemented
components of the services offered in the IEPs to which
Mother gave her consent, but not the portions to which
Mother did not consent and, as a result, I.R. remained in a
general education class with a special education aide.
On May 29, 2012, I.R. filed a request for a due process
hearing in which she raised a number of issues. Relevant to
this appeal is the issue of whether LAUSD denied I.R. a
FAPE by failing to provide I.R. with an appropriate
placement during each of the 2010/2011 and 2011/2012
school years. For the most part, LAUSD prevailed at the
hearing. The administrative law judge (“ALJ”) who
conducted the hearing concluded that the program proposed
by LAUSD was appropriate for I.R. and that LAUSD had
thus offered her a FAPE. The ALJ acknowledged that
California Education Code § 56346(f) required LAUSD to
initiate a due process hearing if it determined that the
1
IEPs and amended IEPs prepared in November 2010, March 2011, and
April 2011 all offered placement in a special education environment. An
IEP prepared in June 2011 allowed for placement in a general education
class for some classes. An IEP prepared in February 2012 offered
placement in a general education class.
6 I.R. V. LOS ANGELES USD
component to which a parent did not consent was necessary
to provide a FAPE. The ALJ’s decision stated that the
“District acknowledged that the general education classroom
placement was inappropriate and, therefore, [the] District
failed to provide [a] FAPE.” Nonetheless, the ALJ did not
hold LAUSD liable for failing to request a due process
hearing. Instead, the ALJ concluded that “the evidence
convincingly establishes that [LAUSD] offered an
appropriate placement, but Mother’s refusal to consent
prevented [the] District from implementing and providing a
FAPE.”
I.R. appealed to the district court, but that court affirmed
the ALJ’s decision. The court noted that the ALJ had found
that LAUSD had not provided I.R. with a FAPE for two
years, a finding that LAUSD did not contest before the
district court. The court further observed that the ALJ also
found that LAUSD had offered an appropriate program, a
finding that I.R. did not contest before the district court.
Instead, before the district court, I.R. focused on the failure of
LAUSD to request a due process hearing. On that subject,
the district court noted that the ALJ had excused LAUSD for
its failure to provide a FAPE because I.R.’s parents refused
to consent to LAUSD’s proposed program. The district court
agreed and affirmed. With regard to the failure to initiate a
due process hearing, the district court held that LAUSD could
not initiate such a hearing or take action to override the
parents’ failure to consent under 20 U.S.C. § 1414. Nor,
under that section, the district court held, could LAUSD be
held liable for its failure to provide a FAPE. The district
court thus affirmed the ALJ’s decision in favor of LAUSD.
I.R. V. LOS ANGELES USD 7
I.R. timely appealed. This court has jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291. K.D. ex rel. C.L. v.
Dep’t of Educ., 665 F.3d 1110, 1116 (9th Cir. 2011).
II. STANDARD OF REVIEW
I.R. raises questions of law and is thus entitled to de novo
review. See Amanda J. ex rel. Annette J. v. Clark Cty. Sch.
Dist., 267 F.3d 877, 887 (9th Cir. 2001) (“Questions of law
and mixed questions of fact and law are reviewed de novo,
unless the mixed question is primarily factual.”). Further, the
Ninth Circuit reviews de novo “the district court’s decision
that the school district complied with the IDEA.” E.M. ex rel.
E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin.
Hearings, 758 F.3d 1162, 1170 (9th Cir. 2014) (quoting K.D.,
665 F.3d at 1117).
III. DISCUSSION
A.
The district court held that, in effect, 20 U.S.C. § 1414foreclosed LAUSD from initiating a due process hearing. We
disagree.2
When interpreting a statute, the court begins with the
statutory text and interprets “statutory terms in accordance
with their ordinary meaning, unless the statute clearly
expresses an intention to the contrary.” United States v. Neal,
776 F.3d 645, 652 (9th Cir. 2015). “[W]e must read the
words [of a statute] ‘in their context and with a view to their
2
LAUSD conceded as much during oral argument by taking the position
that it could have chosen to initiate a due process hearing in this case.
8 I.R. V. LOS ANGELES USD
place in the overall statutory scheme.’” King v. Burwell,
135 S. Ct. 2480, 2489 (2015) (quoting Food & Drug Admin.
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000)). “Particular phrases must be construed in light of the
overall purpose and structure of the whole statutory scheme.”
United States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995).
The district court’s error is apparent upon examination of
the plain language of the applicable statutes. The district
court appears to have been relying on 20 U.S.C.
§ 1414(a)(1)(D)(ii)(II),3 which states that if the parent
“refuses to consent to services under clause (i)(II), the local
educational agency shall not provide special education and
related services to the child by utilizing the procedures
described in [20 U.S.C. § 1415].” Section 1415, in turn,
grants school districts the power to initiate a due process
hearing. However, 20 U.S.C. § 1414(a)(1)(D)(ii)(II) and its
implementing regulations, by their plain text, foreclose a
school district from initiating a due process hearing only
where a parent has refused consent before the initial
provision of special education and related services. Clause
(i)(II), the parental consent provision to which
§ 1414(a)(1)(D)(ii)(II) refers, states that a school district must
obtain parental consent “before providing special education
and related services to the child.” 20 U.S.C.
§ 1414(a)(1)(D)(i)(II) (emphasis added). The implementing
regulation similarly forecloses a school district’s ability to
file a due process complaint and relieves it of its duty to
provide a FAPE only “[i]f the parent of a child fails to
respond to a request for, or refuses to consent to, the initial
3
The district court did not cite to a specific subsection of 20 U.S.C.
§ 1414.
I.R. V. LOS ANGELES USD 9
provision of special education and related services . . . .” 34
C.F.R. § 300.300(b)(3) (emphasis added).
The statute relied upon by the district court thus does not
apply where, as in this case, a parent consented to special
education and related services, but did not consent to a
specific component of the IEP.4 The district court therefore
erred in concluding that LAUSD could not initiate a due
process hearing to address Mother’s refusal of the IEPs’
recommended placement.
B.
LAUSD conceded at oral argument that a school district
is required to initiate a due process hearing pursuant to
California Education Code § 56346(f). LAUSD argues,
however, that its obligation to initiate a due process hearing
was not yet triggered.5
4
Further, 20 U.S.C. § 1415(b)(6)(A) provides an “opportunity for any
party” to present a due process complaint with respect to a child’s
placement. If § 1414(a)(1)(D)(ii)(II) served to foreclose a school district
from initiating a due process hearing where a parent has consented to
special education and related services but the parties have disagreements
over placement, § 1415(b)(6)(A) would be rendered meaningless.
5
LAUSD also relies on Anchorage School District v. M.P., 689 F.3d
1047, 1056 (9th Cir. 2012) to argue that it opted to resolve the placement
dispute by continuing to work with I.R.’s parents through the IEP process.
In Anchorage, the court held that where a school district developed an IEP
and then received extensive revisions to the IEP from parents, the school
district could either continue working with the parents on the IEP or
initiate a due process hearing. Id. However, in Anchorage, the parties
were not in California and California Education Code § 56346(f)’s
mandate did not apply.
10 I.R. V. LOS ANGELES USD
The California Education Code supplements the IDEA.
See J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d
431, 433 (9th Cir. 2010) (“Both state statutes and federal
regulations supplement IDEA’s procedural and substantive
requirements.”). The California Education Code requires that
“as soon as possible following development” of the IEP,
“special education and related services shall be made
available to the individual with exceptional needs in
accordance” with the IEP. Cal. Educ. Code § 56344(b)
(emphasis added).
To that end, California Education Code § 56346(e)
requires that the school district implement those portions of
the IEP to which the parent has consented if “the parent of the
child 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].” In accordance with
subsection (e), California Education Code § 56346(f)
provides, in pertinent part, that if a school district “determines
that the proposed special education program component to
which the parent does not consent is necessary to provide” a
FAPE, “a due process hearing shall be initiated.”
Section 56346(f) thus delineates certain steps that must be
taken after an IEP is prepared and presented to the parent if
the parent consents in writing to the receipt of special
education and related services but does not consent to all
components of the IEP. First, the school district must
determine whether the proposed special education program
component to which the parent does not consent is necessary
to provide a FAPE. If the disputed component is determined
to be necessary, the school district must initiate a due process
hearing. Once the school district determines that the
component is necessary, and that the parents will not agree to
I.R. V. LOS ANGELES USD 11
it, the district cannot opt to hold additional IEP meetings or
continue the IEP process in lieu of initiating a due process
hearing. Rather, the school district must initiate a due
process hearing expeditiously.
In effect, § 56346(f) compels a school district to initiate
a due process hearing when the school district and the parents
reach an impasse. As the goal of the statute is to ensure that
the conflict between the school district and the parents is
resolved promptly so that necessary components of the IEP
are implemented as soon as possible, a school district may not
artificially prolong the process by failing to make the
necessary determination to trigger § 56346(f)’s mandate.
In evaluating how long is too long for a school district to
take in determining a component’s necessity and initiating a
due process hearing, we recognize that the school district
must have some flexibility to allow for due consideration of
the parents’ reasons for withholding consent to an IEP
component. Parents are an integral part of the IEP process.
See Amanda J., 267 F.3d at 891 (“By mandating parental
involvement and requiring that parents have full access to
their child’s records, Congress sought to ensure that the
interests of the individual children were protected.” (citing
Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 208 (1982))). Indeed, parents are part
of the cooperative team that determines the contents of the
IEP in the first place. See M.M. v. Lafayette Sch. Dist., 767
F.3d 842, 851 (9th Cir. 2014) (citing 20 U.S.C.
§§ 1400(c)(5)(B), 1414(a)(1)(D), 1414(b)(4)(A); 34 C.F.R.
§ 300.306(a)(1)). Given the parents’ involvement in the
process from the first IEP team meeting, a school district
should be able to consider the parents’ position and make a
12 I.R. V. LOS ANGELES USD
determination as to a disputed component’s necessity within
a reasonable period of time.
The relevant period in this case runs from November
2010, when Mother failed to consent to I.R.’s placement in a
special education environment, to May 2012, when I.R.
requested a due process hearing. LAUSD does not contend
that it took that entire period for it to assess whether
placement in a special education environment was necessary
to provide I.R. with a FAPE. LAUSD had already reached
that conclusion when it prepared the November 2010 IEP.
Instead, LAUSD simply argues that during that year and
a half time frame, it was continuing to try to work with I.R.’s
parents through the IEP process. It argues that “[w]hile
[LAUSD] may eventually have had to initiate the due process
hearing proceedings pursuant to California Education Code,
section 56346(f), it was still attempting to use the IEP team
meeting process prior to doing so.” Indeed, it was finally
I.R.’s parents who requested a due process hearing. LAUSD
never did.
LAUSD’s approach cannot be squared with the
requirement to initiate a due process hearing imposed on
school districts under California Education Code § 56346(f).
The statute does not say that a school district is obligated to
request a due process hearing “eventually” or “when the
school district finally gets around to it.” If, in the school
district’s judgment, the child is not receiving a FAPE, the
district must act with reasonable promptness to correct that
problem by adjudicating the differences with the parents. The
reason for this urgency is that it is the child who suffers in the
meantime. LAUSD had concluded that I.R. was not receiving
a FAPE in her current placement. The obvious point of
I.R. V. LOS ANGELES USD 13
§ 56346(f) is to minimize the duration of the denial of a
FAPE by requiring the school district, if it cannot reach
agreement with the child’s parents, to initiate the process to
adjudicate the dispute.
In other circumstances, determining within what time
period the school district must act might require factual
findings by the trier of fact, an ALJ, or a district court. In this
case, though, it is plain that the delay of LAUSD of more than
a year in requesting a due process hearing was unreasonable.
A vague hope that maybe an agreement with the child’s
parents will be reached someday is not enough to justify
putting off the obligation imposed by section 56346(f).
Accepting the explanation offered by LAUSD here would
effectively gut the statute.
A school district’s failure to comply with a procedural
requirement, such as the requirement of California Education
Code § 56346(f), denies a child a FAPE when the procedural
inadequacy “result[s] in the loss of educational opportunity”
or “cause[s] a deprivation of educational benefits.” M.M.,
767 F.3d at 852 (quoting N.B. v. Hellgate Elementary Sch.
Dist., 541 F.3d 1202, 1207 (9th Cir. 2008)). LAUSD’s
failure to comply with its obligation to initiate the
adjudication process left I.R. to remain in a placement that
LAUSD itself acknowledged was inappropriate. To the
extent that I.R. lost an educational opportunity and was
deprived of educational benefits for an unreasonably
prolonged period, LAUSD can be held responsible for
denying her a FAPE for that unreasonably prolonged period.
14 I.R. V. LOS ANGELES USD
C.
LAUSD has argued that its sole obligation under the
IDEA was to offer I.R. a FAPE, an obligation it claims was
satisfied by its November 9, 2010 offer of special education
placement, along with its later, similar offers during 2011.
I.R., in response, has argued that school districts also have a
duty to provide a FAPE to students by implementing any
proposed plan. We do not agree that a school district’s duty
extends quite this far. As I.R. herself argues, parents
retain the right to refuse consent to an offer of a FAPE. See
34 C.F.R. § 300.300(d)(3). Accordingly, it would prove
impossibly onerous to require school districts to somehow
implement a rejected IEP and provide a FAPE in the face of
such refusal.
But this does not mean that the mere offer of a FAPE is
enough to immunize a district from liability. As we have
explained, 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. LAUSD’s failure to initiate a due process
hearing, as was required under California law, directly
resulted in a clear injury, namely I.R. remaining in an
inappropriate program for a much longer period of time than
should have been the case.
On remand, the district court shall determine the
appropriate remedy for this injury.
I.R. V. LOS ANGELES USD 15
IV. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.