Ninth Circuit upholds existing FAPE rules in A.W. v. Tehachapi Unified School District

1 Jul
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On June 25, 2020, in a special education case in which CSBA’s Education Legal Alliance filed an amicus brief, the Ninth Circuit Court of Appeals ruled in favor of the district in an unpublished opinion in A.W. v. Tehachapi Unified School District, upholding the district court’s decision on a couple of issues, including that the school district was not required to seek a due process hearing when it believed it was providing a free appropriate public education (FAPE).

In 2015, the Office of Administrative Hearings issued a decision that the Tehachapi Unified School District had denied the plaintiff FAPE and required the district to adopt an interim behavior plan and provide a one-to-one aide with supervision by a Board-Certified Behavior Analyst (BCBA) for two hours per week until the student’s next individualized education program meeting. This case arose out of the plaintiff’s desire for continued BCBA supervision after the IEP meeting.

Plaintiff filed a due process complaint in 2016, concerning whether the district had denied FAPE to A.W.  by (1) failing to provide him with a one-to-one Applied Behavior Analysis–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  found the plaintiff had failed to meet his burden of proof as to either claim, and the district court upheld the ALJ’s ruling.

On the first issue, the district court found that the plaintiff had failed to demonstrate that BCBA supervision of A.W.’s aide was necessary in order for A.W. to receive FAPE. On the second issue, the district court noted that under California law, a school district is required to initiate a due process hearing when a school district believes that some baseline educational program is necessary to ensure that a student receives FAPE, but the student’s parents refuse to consent to it. The facts of this case were reversed — here, 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 his 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 FAPE.

The ELA filed an amicus brief before the Ninth Circuit, highlighting for the court the potential impact of a decision against the school district: if a school district was required to initiate due process when it believes it was providing FAPE, but the student’s parent wanted additional services, it could lead to significant unnecessary legal costs and burdens on school districts.

The court’s decision is unpublished, so it cannot be cited as precedent, but it is still an important decision for school districts statewide, as under the Ninth Circuit’s ruling school districts do not need to change their practice around offering FAPE because of this case. When a school districts determines that it is offering FAPE to the student, but the parent does not agree and requests additional services, the school district does not need to affirmatively file for due process. The law continues to be that a school district only needs to 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.

The court’s decision is available at https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/06/25/19-15680.pdf.

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