Special education

A.W. v. Tehachapi Unified School District Case No. 19-15680 – Federal Court of Appeals, Ninth Circuit New

Member(s) Involved: Tehachapi Unified School District

Current status and/or outcome:

On June 25, 2020, the Ninth Circuit Court of Appeals affirmed the U.S. District Court’s decision in favor of Tehachapi Unified School District in an unpublished opinion, holding in part that the school district was not required to seek a due process hearing in the situation when parents requested additional services, but the district believed it was providing a free appropriate public education (FAPE). The ELA filed a request for publication, which the court denied, so the case may not be cited as precedent but is still citable as persuasive authority on this issue. The decision remains important for districts, as districts do not need to change their practice around offering FAPE because of this case. A district must file for due process if it determines that the proposed special education program component to which the parent does not consent is necessary to provide FAPE to the student, but when a school districts determines that it is offering FAPE to the student, but the parent disagrees and requests additional services, the school district does not need to affirmatively file for due process.

Importance of statewide issue:

Requiring a school district that is offering FAPE to a student to initiate due process hearing based on a dissatisfied parent’s disagreement places an unreasonable burden on the school district instead of making the parents accountable for their independent role in the hearing process.

Summary of the case:

In 2015, Office of Administrative Hearings (OAH) issued a decision that the Tehachapi USD had denied plaintiff FAPE and required the district to adopt an interim behavior plan and provide the student a one-to-one aide under the supervision of a Board-Certified Behavior Analyst (BCBA) for two hours per week until the student’s next Individualized Education Program (IEP) meeting.

Plaintiff filed a due process complaint on Nov. 14, 2016, concerning whether the district had denied A.W. FAPE by (1) failing to provide him with one-to-one ABA-trained aide with supervision by a BCBA for two hours per week after the IEP meeting, or (2) failing to file for due process hearing to prove that its offer of January 2016 was an offer of FAPE. The Administrative Law Judge (ALJ) found the plaintiff had failed to meet his burden of proof as to either claim. The district court upheld the ALJ’s ruling, noting that a school district is required to initiate a due process hearing when it believes that some baseline educational program is necessary to ensure that a student receives a FAPE, but the student’s parents refuse to consent to it. The facts of this case are reversed ­— A.W.’s parent was seeking a more specialized educational program than the district had proposed, while the district believed it was currently providing FAPE for the student, and the student was making progress towards the IEP goals. In affirming the ALJ’s decision, the district court found that the school district was not required to seek a due process hearing when it believed it was providing a FAPE.

The parent appealed and ELA filed an amicus brief in support of the district before the Ninth Circuit Court of Appeals.