Bellflower Unified Sch. Dist. v. Fernando Lua ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BELLFLOWER UNIFIED SCHOOL No. 19-55912
DISTRICT,
D.C. No.
Plaintiff-counter- 2:18-cv-00043-FMO-FFM
defendant-Appellant,
v. MEMORANDUM*
FERNANDO LUA, individually and on
behalf of minor K.L.,
Defendant-Appellee,
SANDRA LUA, individually and on behalf
of minor K.L.,
Defendant-counter-claimant-
Appellee.
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted October 15, 2020
Pasadena, California
Before: MURGUIA and OWENS, Circuit Judges, and SETTLE,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Bellflower Unified School District (“BUSD”) appeals the district court’s
affirmance of an Administrative Law Judge’s (“ALJ”) determination that BUSD
violated the Individuals with Disabilities Education Act (“IDEA”) by failing to
make a free appropriate public education (“FAPE”) available to K.L., a minor who
resided in the school district. BUSD also challenges the ALJ’s decision ordering
reimbursement to K.L. and her parents for the cost of sending K.L. to New Harvest
Christian School (“New Harvest”), a private parochial school located within
another school district’s geographical boundaries. Because the parties are familiar
with the facts, we do not recite them here. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
The IDEA was enacted in 1975 to “ensure that all children with disabilities
have available to them a free appropriate public education.” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA requires that a local educational agency (“LEA”)
conduct evaluations to determine whether a student is a “child with a disability,”
id. § 1414(a), and develop, in conjunction with the child’s parents and teachers, an
individualized education plan (“IEP”) for each child with a disability, id.
§ 1414(d). A parent may bring a complaint about “any matter relating to” the
child’s evaluation and educational placement and is entitled to an administrative
due process hearing on the complaint. Id. §§ 1415(b)(6), (f), (g)(2).
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The district court properly affirmed the ALJ’s determination that BUSD
denied K.L. a FAPE. The Department of Education’s regulations implementing
the IDEA specifically contemplate that, upon a parent’s request, a school district
must evaluate a child residing in its district for purposes of making a FAPE
available to her, even if she is enrolled in a private school in another district. See
Assistance to States for the Education of Children with Disabilities and Preschool
Grants for Children with Disabilities, 71 Fed. Reg. 46,540, 46,592 (Aug. 14, 2006).
Even where a parent has informed the district of residence that the child has been
placed at a private school outside the state, this Court has held that the district is
still required to make a formal written offer of placement for a child with a
disability. See J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 460
(9th Cir. 2010). Therefore, as K.L.’s district of residence, BUSD was the LEA
responsible for conducting assessments and providing special education services
for K.L. See 71 Fed. Reg. at 46,592. Although a child’s unilateral placement in a
private school outside the district might trigger obligations for the “district of
location,” including “child find” responsibilities under 34 C.F.R. § 300.131(a),
these obligations do not absolve the district of residence of its responsibilities
under the IDEA. J.W., 626 F.3d at 460.
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Further, the district court properly affirmed the ALJ’s award of
reimbursement for K.L.’s private-school tuition for the 2015–2016 and 2016–2017
school years. Parents may receive reimbursement for the unilateral placement of a
child in a private school if the LEA did not make a FAPE available to the child in a
timely manner prior to that enrollment and the private placement is appropriate.
See 34 C.F.R. § 300.148(c). The parent “need not show that a private placement
furnishes every special service necessary to maximize their child’s potential,” but
rather “need only demonstrate that the placement provides educational instruction
specially designed to meet the unique needs of a handicapped child.” C.B. ex rel.
Baquerizo v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1159 (9th Cir.
2011).
BUSD contends that it offered K.L. an IEP in 2014 and that it was not
required to further update her IEP because K.L.’s parents made clear that they did
not intend to re-enroll K.L. at BUSD. These arguments are not supported by the
IDEA or by the record. An LEA must ensure that a child’s IEP is reviewed
annually and revised as appropriate. 20 U.S.C. § 1414(d)(4)(A). As the LEA
responsible for offering K.L. a FAPE, BUSD violated the IDEA by refusing to
convene an IEP meeting in 2015 and 2016 despite multiple requests from K.L.’s
parents. K.L.’s 2014 IEP was not a permissible placeholder, as her 2014 IEP
would not address her “present levels of academic achievement and functional
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performance” as they existed in 2015 or 2016. Id. § 1414(d)(1)(A)(i)(I). While
“the LEA where the child resides need not make FAPE available to the child” if
“the parent makes clear his or her intention to keep the child enrolled in the private
elementary school or secondary school located in another LEA,” see 71 Fed. Reg.
at 46,593, the record does not support BUSD’s contention that K.L.’s parents
expressed a clear intent to keep K.L. enrolled at New Harvest. In fact, K.L.’s
parents’ letters to BUSD in 2015 and 2016 indicate they were still interested in a
public-school placement for K.L., and BUSD was required to provide an offer of
FAPE. BUSD failed to do so.
Further, the ALJ properly determined that K.L.’s placement was appropriate
because New Harvest provided K.L. with diagnostic tests upon enrollment to
assess her academic proficiency and needs and provided K.L. with one-on-one
tutoring assistance and extra help from her teachers. The fact that New Harvest is
a parochial school does not change this analysis. K.L.’s parents were therefore
entitled to reimbursement for K.L.’s private school tuition.
Finally, under California law, an ALJ may reduce or deny a reimbursement
award where the parent did not give written notice to the LEA at least ten days
prior to the removal of the child from public school. Cal. Educ. Code § 56176.
Here, although K.L.’s parents’ failed to provide ten days’ notice before
withdrawing K.L. from BUSD in 2014, BUSD fails to make any argument as to
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why the ALJ was required to use her discretion to reduce the reimbursement award
for K.L.’s private school tuition. In any event, K.L.’s parents notified BUSD of
K.L.’s placement at New Harvest and their intent to seek reimbursement in May
2015, and the ALJ awarded reimbursement for the 2015 and 2016 school years,
well after BUSD had notice of K.L.’s withdrawal.
AFFIRMED.
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