MEMBER(S) INVOLVED: Los Angeles Unified School District

This matter involves the application of the standard for determining whether a local educational agency’s (LEA) offer of services to a special education student is reasonably designed to offer the student a fair appropriate public education (FAPE) to meet their individual needs in the least restrictive environment (LRE). This standard has been developed through U.S. Supreme Court precedent. In this case, regarding the placement of a 3-year-old deaf and hard of hearing student, both the Administrative Law Judge (ALJ) at the Office of Administrative Hearings (OAH) and the federal district court applied an incorrect standard, in which they compared the Los Angeles USD’s program to a program at a private nonpublic school and determined that the nonpublic school’s program was “better” than the district’s program. If this standard were to be utilized moving forward, it would place a heavy burden on LEAs to provide the best possible program for special education students, rather than a program reasonably designed to offer a FAPE.

Whether a program is “better” than the program offered by an LEA is not the standard. Rather, the standard for a child who is not fully integrated into a regular classroom, as recently set forth in the U.S. Supreme Court decision in Endrew F. v. Douglas County School Dist. RE-1, is that the IEP must be “reasonably calculated to enable a child to make progress in light of the child’s circumstances.” Indeed, in Endrew F., the Court held, “[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” In addition, it is not clear that a program where a student is not interacting with her neighborhood school community but is instead educated in a small deaf and hard of hearing program at a private school is “better” than a program on a campus with general education students where the student can have additional interactions with typical peers. Further, no LEA could provide the program offered by the nonpublic school because LEAs are legally prohibited from enrolling general education students in special day classes. As both the district and parents agreed the student belonged in a special day class, there is no possible program an LEA could provide for a student in these circumstances required by the decisions of the ALJ and the district court.

The decision by OAH and the district court, if upheld, would create an unworkable standard for LEAs across the state that would have to demonstrate that each program provided for students eligible for special education services is the best possible program for each student, rather than one that meets their individual needs and allows them to make progress. Under the law, the Individuals with Disabilities Education Act (IDEA) does not promise any particular outcome. Thus, LEAs are not obligated to ensure such outcomes by providing the “best” program available in which a child would be “most successful” or whose potential would be maximized. Moreover, the ALJ and district court should give deference to the professional judgment of LEA employees who have testified that the program meets the required standard — that the student will make progress.

The ALJ and district court also found that the district’s offer of services was not sufficiently clear because the IEP offered services in a range of minutes, called a “frequency band.” The intent was to allow service providers flexibility in providing minutes of service, which would allow students to receive the most benefit. For example, if a student was unable to benefit from services because of mood or other issue on a given day, those minutes of services could be completed on a day in which the child was more apt to receive benefit. If LEA staff are not able to use this flexibility, the student may not receive the benefit of the services.

On Sept. 19, the ELA filed an amicus brief in support of the district. The brief expanded on arguments made by the district and noted that the standard set forth by the ALJ and supported by the district court could have statewide ramifications for LEAs. Specifically, the brief argued: 1) The preference stated by the ALJ and district court for a private program undermines public schools and the importance of the school community and students attending their neighborhood schools; 2) The preference for private schools negatively impacts rural school districts that do not have access to the type of nonpublic school program at issue here, which is the only program of its kind and is located in the state’s most populous county, Los Angeles County; and 3) The preference limits the flexibility of school districts to create and implement programs for students eligible for special education services.

The case is still pending in the Ninth Circuit. While the district and the ELA have filed their briefs, the parents have requested additional time to file a responsive brief. Once the case is fully briefed, the court will hear oral argument from the parties and then issue its decision.