Capistrano Unified Sch. Dist. v. S.W. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAPISTRANO UNIFIED SCHOOL Nos. 20-55961
DISTRICT, 20-55987
Plaintiff-Appellant/Cross-Appellee,
D.C. Nos.
v. 8:18-cv-01896-
JVS-DFM
S.W. and C.W., on behalf of their 8:18-cv-01904-
minor child, B.W., JVS-DFM
Defendants-Appellees/Cross-
Appellants. OPINION
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted September 3, 2021
Pasadena, California
Filed December 30, 2021
Before: Mark J. Bennett and Ryan D. Nelson, Circuit
Judges, and David A. Ezra, * District Judge.
Opinion by Judge R. Nelson
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
SUMMARY **
Individuals with Disabilities Education Act
In an action brought under the Individuals with
Disabilities Education Act by Capistrano Unified School
District, the panel affirmed the district court’s judgment,
after a bench trial, affirming in part and reversing in part an
administrative law judge’s decision in favor of student B.W.
When B.W. was in first grade, after a dispute over
services under the IDEA with Capistrano, 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. At issue was mainly the
consequences of that inadequacy.
The panel held that the goals (as opposed to services) in
B.W.’s first grade Individualized Education Program
(“IEP”) were not inadequate because the goals addressed
B.W.’s needs; Capistrano considered the parents’
recommendations (and those of their expert); and any data
problems did not make the goals themselves inadequate.
The panel held that the district court properly found that
Capistrano had determined that implementation of the first
grade IEP was not necessary for B.W.’s receipt of a free
appropriate public education; accordingly, Capistrano did
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 3
not have to file for a due process administrative hearing to
defend the first grade IEP.
The panel held that once B.W.’s parents placed her in
private school for second grade, Capistrano did not have to
develop an IEP, even if the parents had filed a claim for
reimbursement. The panel held that, under 20 U.S.C.
§ 1412(a)(10), regardless of reimbursement, when a child
has been enrolled in private school by her parents, the school
district only needs to prepare an IEP if the parents ask for
one.
The panel affirmed the district court’s judgment as to the
above issues and remanded for the limited purpose of
considering attorneys’ fees. The panel addressed other
issues in a concurrently filed memorandum disposition.
4 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
COUNSEL
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.
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 5
OPINION
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., 137 S. Ct. 743, 748 (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
1
We address the rest of the parties’ claims in a concurrently filed
memorandum disposition.
6 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
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
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 7
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
8 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
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 (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 (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. 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 (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.
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 9
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
2
The parents claim that they never received the letter denying
reimbursement, but the district court found that Capistrano sent it.
10 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
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 parents filed a new due process complaint again
requesting reimbursement for B.W.’s private school costs.
Capistrano again denied the request and proposed an IEP
meeting, and a dispute over information and access ensued.
Ultimately, Capistrano was dissatisfied with its access to
B.W. and filed an administrative complaint, asking the
Administrative Law Judge (ALJ) either to order assessment
of B.W. or release Capistrano from its IEP obligations.
Near the end of second grade, Capistrano held an annual
IEP meeting for B.W. Capistrano again requested
assessment of B.W.; B.W.’s parents agreed assessments
were necessary, but they did not consent.
Soon after, B.W.’s counsel consented to Capistrano’s
plan to assess B.W., but only if Capistrano withdrew its
complaint. Capistrano withdrew its complaint but B.W. was
never produced for assessment, and B.W.’s parents’
complaint remained “live.”
C
The ALJ then decided B.W.’s operative (second)
complaint. After ruling for Capistrano on two issues relating
to kindergarten (not at issue here), the ALJ decided in favor
of B.W.’s parents on the remaining four issues, concluding
that Capistrano denied B.W. a FAPE by failing to:
(1) develop appropriate first grade IEP goals; (2) make an
appropriate offer of placement and services; (3) file for due
process to defend the first grade IEP; and (4) have a current
IEP in place at the beginning of second grade.
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 11
Both parties filed complaints challenging the ALJ’s
decision in federal district court, which had jurisdiction
under 20 U.S.C. § 1415(i)(3)(A). The district court held a
bench trial on issues (1) through (4) above. 3 Capisistrano
[sic] Unified Sch. Dist. v. S.W. et al., No. SACV 18-
01896JVS(DFMx), 2020 WL 5540186 (C.D. Cal. Aug. 19,
2020). The district court affirmed the ALJ on issue
(2) above, finding that Capistrano denied B.W. a FAPE in
first grade by failing to make an appropriate offer of
placement and services. Capistrano does not appeal that
issue, so it is undisputed that Capistrano failed to provide
B.W. with a FAPE in first grade.
The district court reversed the ALJ and found for
Capistrano on the remaining issues. Although it found that
Capistrano had no duty to prepare an IEP for B.W. in second
grade, the district court still affirmed the ALJ’s order of
reimbursement for tuition and services in that year, finding
that reimbursement was “nonetheless appropriate.”
Capistrano appeals only the reimbursement for second grade
and for occupational therapy services. The parents cross-
appeal the remaining first grade issues.
We address whether (1) the goals in Capistrano’s first
grade IEP were inadequate, (2) Capistrano had to file for due
process to defend the first grade IEP, and (3) Capistrano
needed to develop a second grade IEP.
II
“[W]hether the school district’s proposed IEP” was a
FAPE “is a mixed question that we review de novo.”
3
The district court also considered a kindergarten issue not relevant
here.
12 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th
Cir. 1987). “Complete de novo review, however, is
inappropriate.” Amanda J. ex rel. Annette J. v. Clark Cnty.
Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). “[W]e are not
free ‘to substitute [our] own notions of sound educational
policy for those of the school authorities which [we]
review.’” Id. (second and third alterations in original)
(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)).
Courts “must defer to [states’] ‘specialized knowledge and
experience’ by giving ‘due weight’ to the decisions of the
states’ administrative bodies.” Id. at 888 (quoting Rowley,
458 U.S. at 206–208).
The district court’s findings of fact are reviewed for clear
error and conclusions of law are reviewed de novo. See L.J.
by & through Hudson v. Pittsburg Unified Sch. Dist., 850
F.3d 996, 1002 (9th Cir. 2017). A factual finding is clearly
erroneous if it “is illogical, implausible, or without support
in inferences that may be drawn from the record.” United
States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc).
III
We hold that (1) the goals in Capistrano’s first grade 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 develop an IEP for second grade.
A
To start off, the first grade IEP’s goals were appropriate.
An IEP contains both goals and an offer of placement and
services that the school district proposes to use to
accomplish those goals. The district court here held that
Capistrano’s proposed placement and services for first grade
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 13
were inadequate, and thus that the first grade IEP was
inadequate. Capistrano does not appeal that ruling, and so
here, both sides agree that the IEP was inadequate as to
placement and services.
The parents argue that the IEP was also inadequate for a
second reason: because its goals were inadequate. They
argue that Capistrano’s proposed first grade goals were
inadequate in three ways: (1) the goals did not address
B.W.’s unique needs, (2) Capistrano did not consider the
parents’ expert’s recommendation or the parents’ concerns,
and (3) the goals relied on inaccurate data from the prior year
and proposed inadequate methods for collecting future data.
We affirm the district court on all three grounds and hold
that the IEP goals were adequate: the goals addressed B.W.’s
needs, Capistrano considered the parents’ recommendations
(and those of their expert), and any data problems did not
make the goals themselves inadequate.
1
The first grade IEP’s goals targeted B.W.’s needs, as
required. 20 U.S.C. § 1414(d)(1)(A)(i)(II). “[A]n IEP is not
required to contain every goal from which a student might
benefit.” R.F. by & through E.F. v. Cecil Cnty. Pub. Schs.,
919 F.3d 237, 251 (4th Cir. 2019) (citation omitted); see also
E. R. by E. R. v. Spring Branch Indep. Sch. Dist., 909 F.3d
754, 768 (5th Cir. 2018) (per curiam) (not requiring
“excessive goals”). And California “does not require . . .
additional information, beyond that explicitly required by”
the IDEA. Cal. Educ. Code § 56345(i). B.W.’s parents bear
the burden of showing that the first grade IEP did not satisfy
the IDEA requirements. See Schaffer ex rel. Schaffer v.
Weast, 546 U.S. 49, 62 (2005).
14 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
The ALJ found that the goals addressed B.W.’s unique
needs and found a problem with the goals “not in their
suitability, but rather in the manner in which they were
measured.” The district court agreed that the goals were
suitable but reversed the ALJ as to their measurement,
finding that the IEP goals included descriptions of how
progress would be measured. So neither the ALJ nor the
district court found what the parents argue here: that the
goals did not address B.W.’s unique needs.
B.W.’s parents argue that there were no goals dedicated
to classroom socialization, redirection, and behavior
support. But the parents’ expert testified that the goals
helped B.W.’s social interactions, coping strategies,
response to cues, self-advocacy skills, and transition
process. The expert even testified that the IEP addressed her
recommended goals. A second expert called by the parents
also agreed that the proposed goals were “appropriate” in
addressing B.W.’s emotional self-regulation, acceptance,
and staying on task. And the ALJ found the goals were
appropriate and “comported to [B.W.’s] unique needs.”
Thus, the district court properly upheld the ALJ’s finding
“that the [first grade] goals did comport to B.W.’s unique
needs and were not inappropriate.”
2
B.W.’s parents also argue that Capistrano ignored both
their expert’s recommendation that B.W. have only two
behavioral tutors and B.W.’s parents’ concerns about B.W.’s
health issues and speech and language skills. Capistrano
adequately considered the recommendation and concerns.
The parents’ expert recommended that B.W. have no
more than two behavioral tutors during the day. Relatedly,
the parents “advocated for more ‘direct interaction/support’”
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 15
while meeting with the IEP Team, because they thought that
more support would help address B.W.’s health issues,
speech and language skills, and social deficits. In contrast,
Capistrano “purposeful[ly]” proposed a “variety of
[behavioral] tutors,” not just two, because it thought that
having more tutors would help B.W. become more
independent. To be sure, Capistrano disagreed with the
expert’s recommendation and did not give B.W. everything
that her parents requested. But their recommendation and
concerns were still considered.
B.W.’s parents allege that these failures were not just
substantive but were also procedural. But Capistrano’s
disagreement with the parents’ concerns did not “seriously
infringe[] the parents’ opportunity to participate in the IEP
formulation process.” See J.L. v. Mercer Island Sch. Dist.,
592 F.3d 938, 953 (9th Cir. 2010). As discussed above,
Capistrano heard the parents’ concerns and just disagreed; it
did not infringe their opportunity to participate. Parents’
participation does not require school authorities
automatically to defer to their concerns. The district court
properly found that the IEP Team considered B.W.’s
parents’ concerns and just disagreed.
3
B.W.’s parents allege two kinds of problems with the
first grade IEP relating to data measurement. First, they ask
the court to defer to the ALJ, who held that the IEP goals
were inadequate because the means for collecting future data
were “vague, inconsistent, and lacked sufficient definition of
staff duties.” And second, they argue that in formulating the
IEP goals, Capistrano relied on past data that were so
inconsistently collected that “it was impossible for
[Capistrano] to create appropriate goals.” We disagree on
16 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
both points. Any problems with past or future data did not
make the goals themselves inadequate.
i
First, the IEP included a statement of measurable goals
and adequately described how progress would be measured.
An IEP must include “a statement of measurable annual
goals.” 20 U.S.C. § 1414(d)(1)(A)(i)(II); see also 34 C.F.R.
§ 300.320(a)(2). And an IEP must also describe “how the
child’s progress toward meeting the annual goals . . . will be
measured.” Id. § 1414(d)(1)(A)(i)(III); see also 34 C.F.R.
§ 300.320(a)(3). But there is no specific form of
measurement required by statute or caselaw. Cf. R.P. ex rel.
C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1122 (9th
Cir. 2011) (goal measurement can be “based on teachers’
subjective observations”). Thus, goals could be measured
ordinally (e.g., no improvement/some improvement/
significant improvement), quantitatively, or in some other
way. Indeed, B.W.’s parents acknowledge that Capistrano,
the ALJ, and their own expert all agreed that “any method in
data collection was appropriate, as long as it was consistent.”
Here, ample evidence in the record supports that the first
grade IEP proposed measurable goals. For example, one
goal stated that B.W. “will attend to the teacher . . . for 20
minutes, with no more than 2 prompts, in 4/5 given
opportunities, over 2 consecutive weeks.” The goals noted
the evaluation methods, persons responsible for measuring
the goals, and benchmarks for progress. The goals also
noted that regular progress reports would be provided to
B.W.’s parents. The district court correctly noted that the
IDEA does not require adopting the “specific form of data
collection preferred by” B.W.’s parents.
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 17
Thus, the district court properly found that “goals were
set and measured and the IEP included a description of how
B.W.’s progress was to be measured.”
ii
Second, as to past data, any inconsistencies did not
render the IEP goals themselves inadequate. In developing
the IEP, the IEP Team must consider several factors,
including “the strengths of the child,” “the concerns of the
parents,” and “the results of the initial [or most recent]
evaluation of the child.” 20 U.S.C. § 1414(d)(3)(A). But the
IDEA does not require that the IEP Team rely on specific
kinds of quantitative data. What the IDEA does require is
that the IEP be “reasonably calculated to enable a child to
make progress appropriate in light of the child’s
circumstances.” Endrew F. ex rel. Joseph F. v. Douglas
Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). A
calculated action is one that is “planned so as to achieve a
specific purpose” or “deliberate.” Calculated, Black’s Law
Dictionary (11th ed. 2019).
B.W.’s parents ask us to hold that an IEP necessarily
cannot be reasonably calculated unless the data are
consistently collected. But the IDEA contains no
requirement to rely on quantitative data at all. To hold for
B.W. would create a consistent measuring requirement:
districts could validly implement an IEP in one year but still
find that the data from that year were not consistent enough
for the next year’s IEP. The IDEA has no such requirement.
Because no such requirement exists, the essence of the
parents’ claim is really a challenge to the implementation of
the prior year’s IEP. See Van Duyn ex rel. Van Duyn v.
Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007) (“[A]
material failure to implement an IEP violates the IDEA.”);
18 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
see also L.J. by N.N.J. v. Sch. Bd. of Broward Cnty., 927 F.3d
1203, 1216 (11th Cir. 2019) (In “implementation case[s],
reviewing courts must assess whether the school has
provided special education and related services ‘in
conformity with’ a disabled child’s IEP, not whether that IEP
was appropriate to begin with.” (citing 20 U.S.C.
§ 1401(9)(D))).
As proof that the prior data were not consistently
collected, B.W.’s parents point to their expert’s testimony
that the data were collected inconsistently. For example, “it
wasn’t clear as to how many prompts [Capistrano] would
allow to consider [B.W.] on task.”
The problem is that Capistrano collected at least two sets
of data: one set called “goal performance data sheets,” which
assessed whether B.W. was meeting her IEP goals; and a
second set called “classroom support data sheets,” which
assessed behavioral prompting. The district court found that
B.W.’s expert examined only the classroom behavior sheets
and not the goal reports. B.W. responds that the goal reports
are not “the only information that the district could have
utilized to create new goals.”
B.W.’s parents are correct that in creating new goals,
Capistrano could have relied on the classroom support data
sheets, and not just on the goal performance data sheets. But
that does not save their argument. Their argument fails
because Capistrano did not need to rely on any specific kind
of data at all. And if construed as a challenge to data
collection under the prior year’s IEP, then her argument still
fails, because the IEP required the IEP goal sheets to be
recorded, which her expert did not examine.
The district court properly found that the IEP was not
inadequate because of inconsistencies in the prior data.
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 19
B
Turning to the second issue, B.W.’s parents argue that
Capistrano had an obligation to file for due process to defend
its first grade IEP. Capistrano made what it determined was
an adequate IEP offer; B.W.’s parents disagree that the offer
was adequate. B.W.’s parents argue that this impasse
mandated a due process hearing, but they ignore the IDEA’s
plain text.
Under California law, parents may consent to some
components of an IEP offer but not others. Cal. Educ. Code
§ 56346(e). In that situation, the components consented to
“shall be implemented so as not to delay providing
instruction and services to the child.” Id. But “if the public
agency determines that the proposed special education
program component to which the parent does not consent is
necessary to provide a” FAPE, then the district must launch
a due process hearing. Id. § 56346(f) (emphasis added). The
public agency’s determination is thus the sole trigger for any
obligation to file a due process complaint under California
law.
B.W. provides no reason why the plain text does not
govern. See Connell v. Lima Corp., 988 F.3d 1089, 1097
(9th Cir. 2021) (“We begin with the statutory text, and end
there as well if the text is unambiguous.” (cleaned up)).
B.W.’s parents rely on a line from I.R. ex rel. E.N. v. Los
Angeles Unified School District, 805 F.3d 1164, 1169 (9th
Cir. 2015), stating: “In effect, § 56346(f) compels a school
district to initiate a due process hearing when the school
district and the parents reach an impasse.” But in context,
I.R. held that a due process hearing is only triggered “[o]nce
the school district determines that the component is
necessary.” Id. at 1169 (emphasis added). The district court
thus properly concluded “the school district’s due process
20 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
obligation flows only where it believes that it is not
providing a FAPE, but not where the parent is the one
seeking a different program than what the school district
considers sufficient to provide a FAPE.” 4
B.W.’s parents argue that because Capistrano had started
unofficially to implement the first grade IEP goals,
Capistrano must have believed that the previous goals were
inadequate. But any apparent determination that the new
goals were better does not necessarily imply that Capistrano
also determined that the old goals were inadequate.
B.W.’s parents also argue that Capistrano did not verify
that B.W. was in school after she withdrew from public
school, so it could not have known whether B.W. was
receiving a FAPE. But they cite no authority holding that
the district must file for due process when parents
unilaterally place their child in private school. We address
below whether Capistrano had to prepare an IEP while B.W.
was in private school; here, the question is whether
Capistrano determined that it was not offering a FAPE while
B.W. was in public school, and as to that question, its failure
to verify her enrollment later makes no difference.
4
An amicus, California Association of Lawyers for Education,
makes policy arguments for why school districts should “have an
affirmative obligation to request a due process hearing anytime there is
a dispute over an offer of a FAPE.” It argues some groups are “less likely
to file for due process due to educational, financial, or other barriers,”
and so the IDEA’s permissive dispute process “exacerbates this burden
on parents” by not requiring “better equipped” school districts to file suit
when a parent disagrees with the district’s IEP. B.W.’s parents also
mention public policy. But “[w]hen the express terms of a statute give
us one answer and extratextual considerations suggest another, it’s no
contest. Only the written word is the law . . . .” Bostock v. Clayton Cnty.,
140 S. Ct. 1731, 1737 (2020).
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 21
The district court properly found that “Capistrano had
determined that implementation of the [first grade] IEP was
not necessary for B.W.’s receipt of a FAPE.” Thus,
Capistrano did not need to file for due process.
C
Turning now to the final issue, once B.W.’s parents
placed her in private school for second grade, Capistrano did
not have to develop an IEP. Generally, Capistrano must
prepare an annual IEP for students with a disability in its
jurisdiction. 20 U.S.C. §§ 1414(d)(2)(A), (4)(A). But when
there is no claim for reimbursement, students placed in
private schools by their parents need not be given IEPs. The
IDEA requires instead that districts work with private
schools to come up with a services plan, which the student
does not have an individual right to challenge. Id.§ 1412(a)(10)(A); 34 C.F.R. § 300.138.
The parties agree that IEPs are required for students in
public school but not for students in private school with no
claim for reimbursement. They also agree that the school
district must develop an IEP when the parents request one,
even if the child is in private school, because such a request
shows that the parents are at least nominally seeking a public
education for their child. They further agree that an IEP is
required when the parents have enrolled the student in
private school and there is a claim for reimbursement. But
“[w]e are not bound by a party’s concession as to the
meaning of the law.” United States v. Ogles, 440 F.3d 1095,
1099 (9th Cir. 2006). And on this last point, we disagree.
Such a requirement (to prepare an IEP when the parents
enroll the child in private school and claim reimbursement)
was first established in Town of Burlington v. Department of
Education, 736 F.2d 773 (1st Cir. 1984). But in holding that
22 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
there was such an IEP requirement, the First Circuit also
acknowledged that the IDEA “omits any reference to
whether IEPs are to be revised during the pendency of the
review.” Id. at 794. Still, the court decided that this silence
required it to “fashion a rule to facilitate implementation of
the Act,” and went on to say that “[w]e think that pending
review of an earlier IEP, local educational agencies should
continue to review and revise IEPs in accordance with
applicable law.” Id. The Burlington court’s rule was
motivated by practical concerns: the court noted that IEPs in
later years would help district courts evaluate whether a
FAPE was offered in those years. Id. But the court’s rule
was not rooted in any provision of the statute. And we have
never adopted this reading.
So although the parties agree that an IEP is necessary
when there is a claim for reimbursement, we have never
explicitly held as such. That creates a problem because the
parties’ dispute centers on the details of when this
requirement should apply.
The reason that these details are at issue arises from an
unusual series of events. First, B.W.’s parents withdrew her
from public school and filed a due process complaint seeking
reimbursement. They also told Capistrano that B.W. would
remain in private school for the rest of first grade and for
second grade. But then, after Capistrano denied the
reimbursement request, B.W.’s parents withdrew their first
complaint, and did not file a second complaint (the operative
complaint in this case) until several months later.
Capistrano argues that the time when it normally would
have prepared B.W.’s IEP for second grade fell into the lull
between the withdrawal of the first complaint and the filing
of the second. Thus, it argues that it did not have to prepare
an IEP for second grade, because there was no pending
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 23
complaint and B.W. was thus simply a student placed in
private school by her parents without a request for
reimbursement. B.W.’s parents and amici, on the other
hand, argue that removing B.W. from public school, placing
her in private school, and requesting reimbursement (even if
the request was later withdrawn), taken together, show that
the parents were seeking reimbursement, even absent a
pending proceeding at the time.
We hold that, if the student has been enrolled in private
school by her parents, then the district need not prepare an
IEP, even if a claim for reimbursement has been filed. To
be sure, when parents withdraw a student from public school
and place her in private school, all they have to do is ask for
an IEP, and then the district must prepare one. But
regardless of reimbursement, when a child has been enrolled
in private school by her parents, the district only needs to
prepare an IEP if the parents ask for one. There is no
freestanding requirement that IEPs be conducted when there
is a claim for reimbursement.
Here’s why. Section 1412(a)(10) governs the provision
of services for children in private school, and it has three
subparagraphs. The first is entitled “[c]hildren enrolled in
private schools by their parents,” and provides (among other
things not relevant here) that such children need not be given
IEPs. 20 U.S.C. § 1412(a)(10)(A). The second is entitled
“[c]hildren placed in, or referred to, private schools by
public agencies,” and requires IEPs. § 1412(a)(10)(B). 5
And the third is entitled “[p]ayment for education of children
enrolled in private schools without consent of or referral by
5
When districts know that they cannot adequately serve a child with
disabilities, sometimes they place the child into a private school that can
provide more services.
24 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
the public agency.” § 1412(a)(10)(C). This subparagraph
states that reimbursement is not required if the district
offered the child a FAPE but may be required if the district
did not offer a FAPE. Id.
B.W.’s parents and amici argue that § 1412(a)(10)
establishes three kinds of students: (A) students placed in
private school by their parents without a request for
reimbursement, (B) students placed in private school by the
school district, and (C) students placed in private school by
their parents with a request for reimbursement. But the more
natural reading of the section is that it establishes two kinds
of private school students—those placed by the parents and
those placed by the school—and then includes a third part
about reimbursement for a subset of students placed by their
parents.
Our reading is supported by two features of the IDEA.
First, the titles of subparagraphs (A) and (B) refer to
categories of students, while the third refers not to students
but to payment. That is why we have previously observed
that the IDEA recognizes only two categories of private
school students: “children placed unilaterally in private
schools by their parents” and “children placed in private
schools by a public agency.” Hooks v. Clark Cnty. Sch.
Dist., 228 F.3d 1036, 1039 (9th Cir. 2000). And second,
B.W.’s parents’ third category (children enrolled in private
school without the consent of or referral by the public
agency) falls entirely within the first category of students
placed in private school by their parents. That is why
subparagraph (C) begins by saying “[s]ubject to
subparagraph (A).” 20 U.S.C. § 1412(a)(10)(C). And
subparagraph (A) says nothing about only covering students
who are not requesting reimbursement. Id.§ 1412(a)(10)(A). This shows that, rather than establishing
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 25
a third category, subparagraph (C) instead simply addresses
reimbursement for a subset of students.
If parents enroll their child in private school and make a
claim for reimbursement, then the child has still been
enrolled in private school by her parents, subparagraph (A)
applies, and an IEP is not required unless the parents ask for
one.
B.W.’s parents and amici rely on Anchorage School
District v. M.P., 689 F.3d 1047 (9th Cir. 2012), to argue that
districts must prepare an IEP each year once a due process
proceeding has been launched, whether or not the parents
cooperate. They thus argue that Capistrano had to prepare
an IEP even after B.W.’s parents placed her in private school
and said that they intended to keep her there. But the district
court properly held that “Anchorage does not stand for this
proposition and concerned different circumstances.”
In Anchorage, the student’s parents and the district
disagreed about an offered IEP and the parents filed for due
process. 689 F.3d at 1052. While the claim was being
adjudicated and, importantly, while the student remained in
public school, the prior year’s IEP was “stayed put” and the
district “unilaterally postponed any further efforts to develop
an updated IEP until after a final decision had been
rendered” in the legal proceedings. Id. The court held that
the district’s obligation to complete an IEP remained in
force, regardless of the due process complaint and the
parents’ lack of cooperation, and thus that the school district
violated the IDEA by not preparing an IEP. Id. at 1056–57.
Thus in Anchorage, because the student remained in
public school, the student obviously had not been enrolled in
private school by his parents. So 20 U.S.C.
§ 1412(a)(10)(A) did not apply. But here, B.W. was enrolled
26 CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W.
in private school by her parents. B.W.’s parents and amici
correctly note that school districts’ obligation to prepare an
IEP does not depend on whether the parents cooperate. But
it does depend on whether the child has been enrolled by her
parents in private school, and that is what happened here. 6
One way to interpret B.W.’s parents and amici’s
argument is to say that when parents request reimbursement,
they are functionally or constructively requesting that the
child remain in public school. But that argument is difficult
to accept here because B.W.’s parents explicitly told
Capistrano that they intended to keep B.W. in private school
for second grade. The essence of B.W.’s parents’ and
amici’s argument is that when parents withdraw a student
from public school, enroll her in private school, and make a
claim for reimbursement, it seems unfair to say that they are
choosing to enroll their child in private school, because their
hand has been forced by the district’s failure to offer a FAPE.
The problem is that subparagraph (A) does not refer to
students placed in private school by their parents when there
is no claim for reimbursement; it refers to “[c]hildren
enrolled in private schools by their parents,” full stop.
B.W.’s parents’ and amici’s reading goes against the
statutory text and we decline to adopt it.
6
B.W. and amici rely on two other cases, both distinguishable as
dealing with either students who had not yet been enrolled in private
school or students whose parents requested an IEP. See J.W. ex rel.
J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 460 (9th Cir. 2010)
(parents notified district of intent to enroll in private school but student
was still in public school at the time of the annual IEP meeting);
Bellflower Unified Sch. Dist. v. Lua, 832 F. App’x 493, 496 (9th Cir.
2020) (school district “violated the IDEA by refusing to convene an IEP
meeting in 2015 and 2016 despite multiple requests from . . . parents”
(emphasis added)).
CAPISTRANO UNIFIED SCHOOL DISTRICT V. S.W. 27
IV
We hold that the first grade IEP’s goals were appropriate,
that Capistrano did not need to file for due process to defend
the first grade IEP, and that Capistrano did not have to
develop an IEP for second grade.
As to these issues, the judgment of the district court is
AFFIRMED. We REMAND the case to the district court
for the limited purpose of considering attorneys’ fees.