Appeals court backs student in case challenging appropriate IEP

On Feb. 15, 2024, the Court of Appeals for the Ninth Circuit issued a decision in Los Angeles Unified School District v. A.O., a case that involves a 3-year-old deaf and hard of hearing student with cochlear implants, who sought special education services from the district. The student’s parents challenged the individualized education program (IEP) provided by the district and an administrative law judge (ALJ) found in favor of the parents. When the district filed an action in federal district court to have the ALJ’s decision reviewed, the district court agreed with the ALJ on most but not all counts. The parties then appealed and cross-appealed to the Ninth Circuit, challenging different aspects of the district court’s decision.

In a 2-1 decision, the Ninth Circuit affirmed the district court’s decision in part and reversed it in part, essentially affirming the ALJ’s decision in all respects. In its review, the court gave particular deference to findings in the ALJ’s decision, having found the decision to be “thorough and careful.” The court specifically analyzed four questions, three from the district’s appeal and one from the appellant’s cross appeal:

1. Whether the school district violated the Individuals with Disabilities Education Act (IDEA) by failing to specify the frequency and duration of proposed speech therapy and audiology services,

2. Whether the school district’s proposed program failed to offer a meaningful educational benefit to the student,

3. Whether the school district’s proposed program failed to place the student in the “least restrictive environment” appropriate for her, and

4. Whether the school district’s proposed program violated the IDEA by failing to provide individual speech therapy.

As to the first question, the court concluded that the district’s plan to provide speech therapy for 30 minutes per week in one to 10 sessions and audiology services for 20 minutes per month in one to five sessions “fell short of the IDEA because it failed to specify clearly the frequency and duration of offered services” as required by law. In other words, the ranges given for when services would be provided were too broad and unclear. The district’s position that there was a need for flexibility in providing the services was not discredited, but the court found the flexibility could have been achieved in another way. In addition, the district’s argument that this violation of IDEA was harmless was rejected by the court because the parents could not meaningfully participate in the process with the information given by the district.

Next, the court considered whether the district’s program offered a “meaningful educational benefit” to the student and concluded that it did not. The court reasoned that the time spent by the student in interacting with typically hearing peers was insufficient to allow the student to make meaningful progress in spoken language. Similarly, the court found that the plan provided by the district, under which the student would have had to spend about 85 percent of time in school in a segregated classroom with other deaf and hard-of-hearing students, did not meet the “least restrictive environment” or mainstreaming requirement of IDEA. The opportunities for mainstreaming in the plan from the district were “limited” and did not provide for the “maximum extent appropriate,” meaning that they did not meet the required standard.

Further, the size of the campus and diversity of the student body at a school did not impact the court’s analysis, because the time spent amongst typically hearing peers was the key factor in the analysis. Lastly, the Ninth Circuit court disagreed with the district court but rather affirmed the ALJ that the district’s description of the mode of delivering the proposed speech and language therapies as “direct services (collaborative)” was “opaque” and did not afford the student’s parents enough information to fully evaluate the proposal for their child. Here again, the court agreed with the ALJ that this issue was substantive rather than procedural, and that the ALJ rightly found that the student needed individual speech and language therapy.

The dissent disagreed with all the conclusions made by the majority. According to the dissent, the ranges for services given were not unclear, and if there was confusion about how the range worked in practice, the parents could have asked follow-up questions. The dissent further argued that the district’s failure to specify that the speech and language therapy services would be provided on an individual basis did not deny the student a free appropriate public education (FAPE) and that the ALJ was incorrect to accept the argument that an individualized setting was necessary for FAPE to be provided.

On the question of the program offering a meaningful educational benefit, the dissent pointed out that, “The judgment required by the IDEA is thus not a comparative one — i.e., whether the proposed program is the best of the available options. Rather, the question is an absolute one — i.e., whether, considered on its own merits, the proposed program provides a meaningful educational benefit.” The analysis on this point went on to utilize the argument made by CSBA’s Education Legal Alliance in its amicus brief and explained that the nonpublic school program that allows for more time with typically hearing peers could be characterized as “reverse mainstreaming,” which does not clearly align with California law. Last, the dissent argued that the least restrictive environment was satisfied because during the times in which the student needed special education services, she received them and she was otherwise able to interact with typically hearing peers. To require that the special education classes must include typically hearing peers again ventures into the reversing mainstreaming concept that is not feasible.