D. R. V. RBUSD ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
D. R., a minor, by and through his No. 21-56053
guardian ad litem R. R.,
Plaintiff-Appellant, D.C. No.
2:20-cv-06307-
v. JFW-MAA
REDONDO BEACH UNIFIED
SCHOOL DISTRICT, a local OPINION
educational agency,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted October 19, 2022
Pasadena, California
Filed December 20, 2022
Before: Paul J. Watford and Andrew D. Hurwitz, Circuit
Judges, and Eric N. Vitaliano, * District Judge.
*
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
2 D. R. V. RBUSD
Opinion by Judge Watford
SUMMARY **
Individuals with Disabilities Education Act
The panel affirmed in part and reversed in part the
district court’s judgment affirming an administrative law
judge’s decision denying relief under the Individuals with
Disabilities Education Act to D.R., a student in Redondo
Beach Unified School District.
D.R.’s parents believed that D.R., a child with autism,
should continue to spend most of the school day being
educated in a regular classroom with his non-disabled
peers. School officials, however, believed that D.R. would
be better served spending more of his school day in a special
education classroom receiving instruction with other
disabled students.
Reversing in part, the panel held that, given the IDEA’s
strong preference for educating children with disabilities
alongside their non-disabled peers, the law supported the
parents’ position. The panel held that D.R.’s parents met
their burden of proving that the school district’s proposed
individualized education program (IEP) failed to comply
with the IDEA’s required that children with disabilities be
educated in the “least restrictive environment,” alongside
their non-disabled peers to the maximum extent
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
D. R. V. RBUSD 3
appropriate. The parties agreed that, under the four-factor
Rachel H. test, maintaining D.R.’s placement in the regular
classroom for 75% of the school day was supported by
factors two, three, and four: the non-academic benefits he
derived from being educated in a regular classroom, the lack
negative effects D.R.’s presence had on the education of
other children in the classroom, and the school district’s
failure to contend that the cost of providing D.R. with
supplementary aids and services was prohibitively
expensive.
The panel held that the first Rachel H. factor, the
academic benefits D.R. received from placement in the
regular classroom, also supported that placement. The panel
held that the proper benchmark for assessing whether D.R.
received academic benefits from his placement in the regular
classroom was not grade-level performance, but rather was
whether he was making substantial progress toward meeting
the academic goals established in his IEP. The panel further
held that the fact that D.R. received academic benefits in the
regular classroom as a result of supplementary aids and
services was irrelevant to the analysis required under the first
Rachel H. factor.
Affirming in part, the panel held that D.R.’s parents were
not entitled to reimbursement for the expenses they incurred
after unilaterally removing their son from school and hiring
a private instructor to educate him in a one-on-one
setting. The panel concluded that D.R.’s parents showed
that the IEP offered by the school district violated the IDEA,
but they did not show that the alternative private placement
they chose was proper under the Act.
4 D. R. V. RBUSD
COUNSEL
David W. German (argued), Vanaman German LLP,
Sherman Oaks, California, for Plaintiff-Appellant.
Kristin M. Myers (argued) and Marlon C. Wadlington,
Atkinson Andelson Loya Ruud & Romo, Cerritos,
California, for Defendant-Appellee.
Alexis V. Casillas, Learning Rights Law Center, Los
Angeles, California; Claudia Center and Malhar P. Shah,
Disability Rights Education and Defense Fund, Berkeley,
California; Selene A. Almazan-Altobelli, Council of Parent
Attorneys and Advocates Inc., Townson, Maryland; Robert
J. Borrelle Jr. and Melinda Bird, Disability Rights
California, Los Angeles, California; for Amici Curiae
Council of Parent Attorneys and Advocates Inc., Disability
Rights Education & Defense Fund, Disability Rights
California, Disability Law Center of Alaska, Arizona Center
for Disability Law, Disability Rights Montana, Disability
Rights Oregon, Disability Rights Washington, California
Association For Parent-Child Advocacy, and The Learning
Rights Law Center.
William S. Kroski andAbigail Trillin; Bruce Easop,
Certified Law Student; Stanford Law School Youth &
Education Law Project Mills Legal Clinic, Stanford,
California, for Amici Curiae The Arc of the United States,
The Bazelon Center for Mental Health Law, The National
Disability Rights Network, and The Native American
Disability Law Center.
D. R. V. RBUSD 5
OPINION
WATFORD, Circuit Judge:
This is a dispute under the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. § 1400 et seq., between
the parents of a child with autism and the school district in
which he was enrolled. The parents believe their son, D.R.,
should spend most of the school day being educated in a
regular classroom with his non-disabled peers. School
officials believe D.R. would be better served spending more
of his school day in a special education classroom receiving
instruction with other disabled students. Given the IDEA’s
strong preference for educating children with disabilities
alongside their non-disabled peers, we conclude that the law
supports the parents’ position. However, we hold that the
parents are not entitled to reimbursement for the expenses
they incurred after unilaterally removing their son from
school and hiring a private instructor to educate him in a one-
on-one setting.
I
The IDEA provides federal funding to States to help
ensure that all children with disabilities receive “a free
appropriate public education that emphasizes special
education and related services designed to meet their unique
needs.” 20 U.S.C. § 1400(d)(1)(A). States that accept
funding are required to educate children with disabilities in
what is known as the “least restrictive environment.” Under
that requirement, States and their local educational agencies
must ensure that:
6 D. R. V. RBUSD
To the maximum extent appropriate, children
with disabilities, including children in public
or private institutions or other care facilities,
are educated with children who are not
disabled, and special classes, separate
schooling, or other removal of children with
disabilities from the regular educational
environment occurs only when the nature or
severity of the disability of a child is such that
education in regular classes with the use of
supplementary aids and services cannot be
achieved satisfactorily.
§ 1412(a)(5)(A). Congress imposed the least restrictive
environment requirement because it found that children with
disabilities were often “excluded entirely from the public
school system and from being educated with their peers,”
even though decades of research and experience have shown
that “the education of children with disabilities can be made
more effective by . . . ensuring their access to the general
education curriculum in the regular classroom, to the
maximum extent possible.” § 1400(c)(2)(B), (5)(A).
The IDEA requires parents and school officials to
develop an individualized education program (IEP) tailored
to the unique needs of each child with a disability.
§§ 1401(14), 1414(d). The IEP must include, among other
things: (1) a statement of measurable academic goals for the
child designed “to enable the child to be involved in and
make progress in the general education curriculum”; (2) a
description of how the child’s progress toward those goals
will be measured; (3) “an explanation of the extent, if any,
to which the child will not participate with nondisabled
children in the regular class”; and (4) “a statement of the
D. R. V. RBUSD 7
special education and related services and supplementary
aids and services, based on peer-reviewed research to the
extent practicable, to be provided to the child.”
§ 1414(d)(1)(A)(i)(II)–(V). The IDEA defines the term
“supplementary aids and services” as “aids, services, and
other supports that are provided in regular education classes
or other education-related settings to enable children with
disabilities to be educated with nondisabled children to the
maximum extent appropriate in accordance with section
1412(a)(5) of this title.” § 1401(33).
In this case, D.R.’s parents worked cooperatively with
school officials at D.R.’s elementary school to develop an
IEP for him. (It is undisputed that D.R. qualifies as a child
with a disability and that the school district in which he was
enrolled is bound by the IDEA’s requirements.) Before the
start of third grade, D.R.’s parents and school officials
agreed to an IEP under which D.R. would spend 75% of his
school day in the regular classroom with appropriate
supplementary aids and services to support his academic
progress. Those aids and services included a full-time
behavioral aide who worked one-on-one with D.R. in the
regular classroom to help him follow a modified general
education curriculum, as well as four hours per week of
special education instruction outside the regular classroom
in the school’s Learning Center. The ultimate purpose of
this IEP was to allow D.R. to achieve the individualized
goals that his IEP team had set for him, which defined
academic success for D.R. in a manner different from the
grade-level standards that the school district expected non-
disabled students to meet in a given year.
Midway through third grade, the IEP team reconvened to
assess D.R.’s progress. The team agreed that D.R. was
progressing socially, but school officials believed D.R.
8 D. R. V. RBUSD
required more direct instruction by a credentialed special
education teacher to make adequate academic progress.
They recommended a blended program in which D.R. would
remain in the regular classroom during the morning but
spend the afternoon in a special education classroom, called
the Special Day Class, where he could receive instruction
alongside other children with disabilities. D.R.’s parents
disagreed, insisting that D.R. was making adequate progress
in his current placement. Given the parents’ objections,
school officials did not implement their proposal, and D.R.
remained in his existing placement (75% of the school day
in the regular classroom) for the remainder of the school
year.
At the annual IEP meeting held before D.R. started
fourth grade, the IEP team agreed that D.R. had made
considerable social and academic progress during the prior
school year. But school officials reiterated their concerns
that the regular classroom environment did not adequately
serve D.R.’s needs, and they recommended placing him in
the Special Day Class for 56% of the school day so that he
could receive specialized instruction in the core academic
subjects of language arts and math. D.R.’s parents again
objected to the school officials’ proposal, and D.R.’s
placement again remained unchanged.
Before the start of fifth grade, the IEP team reconvened
to develop D.R.’s IEP for the upcoming school year. The
team agreed that D.R. had met four of his six academic goals
for the fourth-grade year and that he had made progress on
the remaining two. Nevertheless, school officials believed
D.R. was not making adequate progress in his current
placement. They noted that he was performing several grade
levels below his non-disabled peers in language arts and
math and that, as a result, he spent most of his time in the
D. R. V. RBUSD 9
regular classroom working one-on-one with his aide on
assignments that were tied to a heavily modified general
education curriculum. The outcome was that D.R. often
followed the general class schedule—for example,
practicing grammar skills at the same time as his non-
disabled peers—but not the actual class lessons in the core
subjects. To provide D.R. with greater individualized
attention and a curriculum geared toward his particular
needs, school officials again proposed placing him in the
Special Day Class for 56% of the school day.
Upon receiving the school district’s latest proposal,
D.R.’s parents terminated the IEP meeting and removed
D.R. from the school. After trying unsuccessfully to find a
private school that would accept D.R., they hired a private
instructor to teach him in a one-on-one educational program.
As permitted under the IDEA, D.R.’s parents requested
a due process hearing before the California Office of
Administrative Hearings. See 20 U.S.C. § 1415(f). They
argued that the school district’s proposed fifth-grade IEP
violated the IDEA’s least restrictive environment
requirement by removing D.R. from the regular classroom
for a majority of the school day. They also sought
reimbursement for the expenses they had incurred hiring a
private instructor for D.R.
After conducting a four-day evidentiary hearing, an
administrative law judge (ALJ) ruled that the school
district’s proposed placement for D.R. did not violate the
IDEA. The parents then sought review in the District Court
for the Central District of California. Because neither side
sought to introduce any new evidence, the district court
limited its review to the record of the administrative
proceedings, giving “due weight” to the ALJ’s findings. See
10 D. R. V. RBUSD
Capistrano Unified School District v. Wartenberg, 59 F.3d
884, 890–91 (9th Cir. 1995). The court agreed with the
ALJ’s analysis and affirmed the decision denying relief.
II
The principal issue on appeal is whether the school
district’s proposed IEP complied with the least restrictive
environment requirement. Because D.R.’s parents
challenged the proposed IEP, they bore the burden of
proving that it violated the IDEA. See Schaffer v. Weast, 546
U.S. 49, 62 (2005). We review the district court’s factual
findings for clear error and its determination that the
proposed IEP satisfied the least restrictive environment
requirement de novo. See Amanda J. v. Clark County School
District, 267 F.3d 877, 887 (9th Cir. 2001).
As discussed above, school districts subject to the IDEA
must ensure that children with disabilities are educated
alongside their non-disabled peers “[t]o the maximum extent
appropriate.” 20 U.S.C. § 1412(a)(5)(A). School officials
may remove a disabled child from the regular classroom
“only when the nature or severity of the disability of a child
is such that education in regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily.” Id. This provision reflects the IDEA’s
“strong preference” for educating children with disabilities
in a regular classroom environment. Poolaw v. Bishop, 67
F.3d 830, 834 (9th Cir. 1995).
We have established a four-factor test to determine
whether a school district has complied with the least
restrictive environment requirement. See Sacramento City
Unified School District v. Rachel H., 14 F.3d 1398, 1404
(9th Cir. 1994). The first and most important factor
compares the academic benefits a child receives from
D. R. V. RBUSD 11
placement in the regular classroom with the academic
benefits available in a special education classroom. See id.at 1400–01; Poolaw, 67 F.3d at 836. The second factor
considers the non-academic benefits a disabled child derives
from being educated in a regular classroom, Rachel H., 14
F.3d at 1404, such as “the development of social and
communication skills from interaction with nondisabled
peers,” Oberti v. Board of Education, 995 F.2d 1204, 1216
(3d Cir. 1993); see also Ms. S. v. Vashon Island School
District, 337 F.3d 1115, 1137 (9th Cir. 2003), superseded by
statute on other grounds, 20 U.S.C. § 1414(d)(1)(B). The
third factor weighs the potential negative effects a disabled
child’s presence may have on the education of other children
in the classroom. Rachel H., 14 F.3d at 1404. The fourth
factor considers the costs to the school district of providing
the supplementary aids and services necessary to educate a
disabled child in the regular classroom. Id.
The parties agree that the second, third, and fourth
factors weigh in favor of maintaining D.R.’s placement in
the regular classroom for 75% of the school day. D.R.
derived significant non-academic benefits from the time he
spent in the regular classroom during second through fourth
grades. He became close friends with several of his non-
disabled classmates, and those friendships helped D.R.
develop his interpersonal skills and build his self-
confidence. D.R.’s presence in the regular classroom did not
impede his teachers’ ability to instruct other students, and
D.R. exhibited no behavioral problems that otherwise
disrupted the classroom. The fourth factor—cost—does not
affect the balance here, as the school district does not
contend that the cost of providing D.R. with supplementary
aids and services was prohibitively expensive.
12 D. R. V. RBUSD
Where the parties differ is on the first Rachel H. factor—
the academic benefits D.R. received from his placement in
the regular classroom. The school district contends that D.R.
derived essentially no academic benefit from that placement.
It emphasizes that D.R. spent most of his time working one-
on-one with his aide using a heavily modified curriculum
and that he lagged so far behind his non-disabled peers that
he could rarely participate in activities with the rest of the
class. The district court accepted this view, finding that D.R.
was “effectively on an island in general education for
academic purposes.” The court ruled that the first Rachel H.
factor outweighed the other three and justified placing D.R.
in the more restrictive educational setting that the school
district had proposed.
In our view, the district court’s decision rests on two
legal errors, both of which require reversal.
A
The first error concerns the proper benchmark for
assessing whether D.R. received academic benefits from his
placement in the regular classroom. The IDEA prohibits
placing children with disabilities in a more restrictive
educational setting unless education in the regular classroom
with the use of supplementary aids and services “cannot be
achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A). The
question thus becomes how to measure whether a child is
making enough academic progress to conclude that his
education is being achieved “satisfactorily.”
Both the ALJ and the district court placed great weight
on the fact that D.R. was performing several grade levels
below his non-disabled peers and could not keep up with the
pace of instruction in the regular classroom. In third-grade
language arts, for example, the ALJ noted that D.R. “could
D. R. V. RBUSD 13
write four sentences from dictation with grade level word
spacing in 25 percent of his trials,” while his non-disabled
peers were writing three paragraphs or more and working on
skills like editing and drafting topic sentences. In fourth-
grade math, the ALJ noted that D.R. worked on two-digit
addition problems while his non-disabled peers were
learning multiplication and fractions. Based on this and
similar evidence, the ALJ and the district court concluded
that D.R.’s education in the regular classroom could not be
achieved “satisfactorily.”
We disagree. A satisfactory education is not a one-size-
fits-all concept. For children who are capable of following
an IEP with academic goals that closely track grade-level
standards, performance at grade level may provide the
appropriate benchmark for measuring the academic benefits
they receive from placement in the regular classroom. See
Endrew F. v. Douglas County School District RE-1, 137 S.
Ct. 988, 999–1000 (2017). But grade-level performance is
not the appropriate benchmark for all disabled children. For
children whose developmental disabilities preclude them
from achieving at the same academic level as their non-
disabled peers, the appropriate benchmark for measuring the
academic benefits they receive is progress toward meeting
the academic goals established in the child’s IEP. See L.H.
v. Hamilton County Department of Education, 900 F.3d 779,
793 (6th Cir. 2018); County of San Diego v. California
Special Education Hearing Office, 93 F.3d 1458, 1462 (9th
Cir. 1996). As the Supreme Court has held, an IEP’s
academic goals “need not aim for grade-level advancement”
when that level of achievement is not obtainable, but they
must be “appropriately ambitious” in light of the child’s
unique circumstances. Endrew F., 137 S. Ct. at 1000. The
IEP’s academic goals therefore provide the relevant
14 D. R. V. RBUSD
yardstick for assessing a child’s academic progress for
purposes of the first Rachel H. factor.
The undisputed evidence in this case establishes that
D.R. was making substantial progress toward meeting the
academic goals established in his IEP. In fact, by the end of
his fourth-grade year, D.R. had met four of his six academic
goals and had made progress on the remaining two. This
record of achievement indicates that D.R. was receiving
significant academic benefits from his existing placement
when measured against the proper yardstick.
The school district contends that even if D.R. made
substantial progress toward meeting his IEP goals in the
regular classroom, he could have made more progress in the
Special Day Class receiving individualized attention and
special curricular offerings. The record does not support the
school district’s prediction. D.R.’s parents presented
unrebutted expert testimony, based on a wealth of academic
literature and peer-reviewed studies, establishing that the
vast majority of children with developmental disabilities
perform better academically when they are educated in an
inclusive general education environment as opposed to an
isolated special education environment, like the Special Day
Class. See, e.g., National Council on Disability, The
Segregation of Students with Disabilities 37–38 (2018);
Thomas Hehir et al., Instituto Alana, A Summary of the
Evidence on Inclusive Education 13 (2016). The positive
correlation between academic achievement and time spent in
the regular classroom holds true even for children who, like
D.R., have significant developmental disabilities and are
performing several grade levels below their non-disabled
peers. In addition, D.R.’s parents presented unrebutted
expert testimony establishing that (1) the curriculum used in
the Special Day Class—the Unique Learning System—is
D. R. V. RBUSD 15
designed for students who are far less academically
proficient than D.R.; and (2) if used at all, it should
supplement rather than replace the modified version of the
general education curriculum that D.R. had been following.
It thus cannot be said on this record that D.R. would derive
greater academic benefits from placement in the Special Day
Class for 56% of the school day. 1
These facts distinguish this case from Baquerizo v.
Garden Grove Unified School District, 826 F.3d 1179 (9th
Cir. 2016), on which the school district relies. There, we
held that academic considerations outweighed the other
Rachel H. factors and justified the school district’s proposal
to place the student outside the regular classroom. Id. at
1188. The student had not attended a public school for years
and had no track record of academic success in the regular
classroom. Id. at 1181–83. The student’s private instructor
testified that he needed to be educated in a one-on-one
environment because he would not progress academically if
educated alongside his non-disabled peers. Id. at 1188.
D.R., by contrast, made significant academic progress inside
the regular classroom during the two school years prior to
1
Even if D.R. might have received greater academic benefits in the
Special Day Class, the IDEA’s strong preference for educating disabled
children alongside their non-disabled peers “is not overcome by a
showing that a special education placement may be academically
superior to placement in a regular classroom.” Board of Education v.
Holland, 786 F. Supp. 874, 878–79 (E.D. Cal. 1992), aff’d, 14 F.3d 1398(9th Cir. 1994). If a child is making substantial progress toward meeting
his IEP’s academic goals, the fact that he might receive a marginal
increase in academic benefits from a more restrictive placement will
seldom justify sacrificing the substantial non-academic benefits he
derives from being educated in the regular classroom. See Oberti, 995
F.2d at 1216–17.
16 D. R. V. RBUSD
the school district’s proposal, and his private instructor as
well as the experts testified that he belonged in that more
inclusive setting. Unlike in Baquerizo, then, there is no need
here to balance the Rachel H. factors against each other
because no factor supports moving D.R. to a more restrictive
placement.
B
The district court committed a second legal error that
requires reversal. In analyzing the first Rachel H. factor, the
court accepted the ALJ’s finding that D.R.’s progress toward
meeting his IEP’s academic goals was attributable not to his
participation in the regular classroom, but rather to the
supplementary aids and services he was receiving—namely,
his one-on-one aide in the regular classroom and the special
education instruction he received in the Learning Center.
However, the fact that a child receives academic benefits in
the regular classroom as a result of supplementary aids and
services is irrelevant to the analysis required under the first
Rachel H. factor.
The IDEA permits a more restrictive placement only if
“education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.” 20
U.S.C. § 1412(a)(5)(A) (emphasis added). Whenever
feasible, a school district must push support services into the
regular classroom rather than pull students out of it. See
Greer v. Rome City School District, 950 F.2d 688, 696 (11th
Cir. 1991), withdrawn and reinstated in relevant part, 967
F.2d 470 (11th Cir. 1992). As D.R.’s parents argue, if a
child’s education is being achieved satisfactorily due to the
supplementary aids and services he receives, those aids and
services should be continued so that the child can remain in
the regular classroom. In other words, a child’s reliance on
D. R. V. RBUSD 17
supplementary aids and services to achieve a satisfactory
education in the regular classroom cannot be used against
him to justify a more restrictive placement.
The district court also found pertinent the fact that D.R.
required significant modifications to the general education
curriculum. But just as the IDEA is clear that a school
district may not penalize a child for relying on the
supplementary aids and services he receives, the law is also
clear that a school district may not remove a child from the
regular classroom “solely because of needed modifications
in the general education curriculum.” 34 C.F.R.
§ 300.116(e). Thus, as with a child’s reliance on support
services, whether a child requires significant curricular
modifications is irrelevant to the first Rachel H. factor. As
indicated above, the relevant question is whether the child
can receive satisfactory academic benefits inside the regular
classroom, measured by progress toward meeting the
academic goals established in the child’s IEP.
In sum, we conclude that the IEP proposed by the school
district before D.R.’s fifth-grade year violated the IDEA. By
requiring him to spend 56% of the school day in a special
education classroom, the proposed IEP failed to offer D.R. a
free appropriate public education in the least restrictive
environment, as required under 20 U.S.C. § 1412(a)(5)(A).
III
The remaining issue is whether D.R.’s parents are
entitled to reimbursement from the school district for the
expenses they incurred after removing D.R. from the school
and hiring a private instructor to educate him in a one-on-
one setting. The IDEA permits reimbursement if D.R.’s
parents can show both that the IEP offered by the school
district violated the IDEA and that the alternative private
18 D. R. V. RBUSD
placement they chose was proper under the Act. See C.B. v.
Garden Grove Unified School District, 635 F.3d 1155, 1159
(9th Cir. 2011); 20 U.S.C. § 1412(a)(10)(C). Because
reimbursement is a form of discretionary equitable relief, a
court must also assess the reasonableness of both parties’
conduct to determine whether reimbursement is warranted.
See Anchorage School District v. M.P., 689 F.3d 1047,
1058–59 (9th Cir. 2012). Relevant factors include the
existence of more suitable placements for the student and the
parties’ level of cooperation during the IEP process. Id.The ALJ denied the parents’ request for reimbursement
after concluding that the school district’s proposed IEP did
not violate the IDEA. We have reached the opposite
conclusion, which requires an inquiry into whether the
parents’ alternative placement was proper and reasonable
under the circumstances. We think the answer to that
question is sufficiently clear to obviate the need for a
remand.
Reimbursement is not appropriate in this case because
D.R.’s parents should not have unilaterally withdrawn him
from school in response to the school district’s IEP offer.
The parents had rejected the school district’s two earlier
placement offers during D.R.’s third- and fourth-grade years,
and the school district accordingly never implemented those
proposals. In fact, under California law, the school district
could not have altered D.R.’s placement without first
requesting a due process hearing with the state agency. Cal.
Educ. Code § 56346(f). Thus, when the school district
renewed its offer for fifth grade, D.R.’s parents could have
reasserted their objections and waited to see if the school
district would yield once more. Or, if the parents themselves
requested a due process hearing, they could have relied on
the IDEA’s “stay-put” provision to maintain D.R.’s existing
D. R. V. RBUSD 19
placement pending resolution of that proceeding. 20 U.S.C.
§ 1415(j). But rather than following either of these routes,
the parents terminated the IEP meeting and placed D.R. in
an educational setting even more restrictive than the one the
school district had proposed. In these circumstances, the
expenses D.R.’s parents incurred in hiring a private
instructor were not necessary to ensure that D.R. continued
to receive a free appropriate public education in the least
restrictive environment.
We understand the parents’ concern that school officials
appeared to lack faith in D.R.’s ability to learn in the regular
classroom. These concerns were aggravated when the
school district misstated its offer at the last IEP meeting,
making it appear as though the school district had proposed
placing D.R. in the Special Day Class for 88% of the school
day, rather than the 56% it had earlier proposed. The parents
had no way of knowing that this was a mere “clerical error,”
as the school district now describes it. Still, because D.R.’s
parents sought to maintain his current placement, the proper
course of action would have been to rely on California’s
procedural protections and the IDEA’s stay-put provision to
keep D.R. in a placement that provided him with substantial
academic and social benefits. Had this occurred, the school
district could have clarified its mistake, and the two sides
potentially could have reached a resolution on D.R.’s
placement without the need to remove him from school. At
the very least, the parents could have preserved the status
quo until the school district decided whether to pursue a due
process hearing. And even when the parents decided to
pursue such a hearing, as was their right, the stay-put
provision would have kept D.R. in his current placement
until the case was resolved. The parents instead opted not to
continue with the IEP process nor to rely on the legal
20 D. R. V. RBUSD
protections that would have kept their son in his existing
placement. For these reasons, reimbursement is not
warranted.
* * *
If D.R. decides to re-enroll in the school district, he is
entitled to a free appropriate public education in the least
restrictive environment. We cannot determine what D.R.’s
appropriate placement should be at this juncture, three years
after the dispute at issue here arose. See Rachel H., 14 F.3d
at 1405. Nonetheless, the school district must adhere to the
principles outlined in this opinion when working with D.R.’s
parents to craft his next IEP.
AFFIRMED in part and REVERSED in part.
The parties shall bear their own costs.