Teachers, Service Providers and Others Have a Right to Advocate for Students with Disabilities

Author: Anisa Pillai, Attorney At Law

California Education Code Section 56046 (“Section 56046”) is a rarely discussed statute with powerful implications.

Section 56046 prohibits local educational agencies (LEAs) from intimidating or retaliating against various school employees and contractors for advocating or assisting a parent of a student with disabilities to obtain services or accommodations for the student.

Specifically, the statute states that LEA employees cannot use their official authority or influence to threaten or coerce a person for the purpose of interfering with that person’s advocacy or assistance of a parent to obtain services or accommodations for a student with disabilities. The statute prohibits LEA employees from promising to confer any benefit, threatening any reprisal, or taking or approving any personnel action such as appointment, transfer, assignment, performance evaluation, suspension, or other disciplinary action as a result of an individual’s advocacy on behalf of a student with disabilities.

Section 56046 protects a wide variety of employees and contractors, including, but not limited to, the following:

  • Teachers;
  • Providers of designated instruction and services;
  • Paraprofessionals;
  • Instructional aides;
  • Behavioral aides;
  • Health aides;
  • Educators or staff of the LEA;
  • Subordinates of the LEA; or
  • Private individuals or entities under contract with the LEA.

The activities that are protected under this statute include good faith advocacy on behalf of a student with special needs as well as providing information that would assist a parent in obtaining a free appropriate public education (FAPE) under the IDEA, services or accommodations under Section 504 of the Rehabilitation Act and/or the Americans with Disabilities Act, and any state laws regarding individuals with exceptional needs. However, the statute makes clear that an individual’s assistance to a parent shall not interfere with the individual’s regular duties for the LEA.

Section 56046 authorizes an individual who believes an LEA to have violated these rights to file a complaint under the Uniform Complaint Procedures in addition to any applicable LEA grievance procedures.

Despite the strong protections Section 56046 provides to employees and contractors, this statute does not do any of the following:

  • Limit or alter the right or duty of a public school official to direct or discipline an employee or contractor;
  • Prevent a LEA from enforcing a law or regulation regarding conflicts of interest, incompatible activities, or the confidentiality of pupil records; or
  • Diminish the rights of a public-school employee under any federal or state law or under an employment contract or collective bargaining agreement.

Overall, Section 56046 provides teachers, contractors, and other service providers with the right to engage in good faith advocacy for students with disabilities unless they are in violation of a directive, school policy, or other law or regulation. Thus, prior to taking any adverse action against an employee or contractor related to disagreement over what to do for a student, LEAs should ensure that their action does not interfere with that employee or contractor’s right to engage in protected activity.

District Court Gives Bad Marks for Overreliance on Academics in Determining Eligibility for Special Education

Author: Michael Tucker, Attorney at Law


On February 12, 2022, a California district court ruled that a school district (District) denied a student a Free and Appropriate Public Education (FAPE) because the District focused too much on the student’s (Student) academic achievement and discounted the student’s negative social interactions with peers and aggressive responses to bullying. (Rocklin Unified Sch. Dist. v. J.H., (2022) 122 LRP 5961.)


When Student was in third grade, he was academically successful and appeared to display appropriate social and behavioral skills. When Student was in fourth grade, he appeared to have difficulty focusing and staying organized. His teacher noticed he had difficulty writing and appeared argumentative and anxious. Student became the victim of bullying and was ultimately suspended after a physical altercation. However, Student continued to meet academic standards appropriate for his grade level.

In response, the District initially instituted a 504 Support Plan and other school-wide initiatives to address behavior. In March 2018, Parent complained to the District about the bullying and requested a special education assessment. In April 2018, Student was assessed by the school psychologist, but the District did not identify Student as eligible for special education at the May 2018 IEP. While the psychologist’s report determined that Student’s ADHD and anxiety impacted his alertness while in class, the IEP team did not find that Student’s educational performance was adversely impacted requiring special education. As a result, the school psychologist recommended accommodations to address these and other challenges.

Despite this assessment, Student was not identified as eligible for special education based on anxiety and ADHD under the category of “other health impairment” until 2019. An IEP team offered Student placement in the District’s general education program with specialized academic instruction and speech services. Student’s parents filed a request for due process alleging that the District failed in its “child find” responsibilities in not identifying Student as eligible for special education prior to 2019. Conversely, the District maintained that even if Student’ diagnoses of ADHD and anxiety qualified as disabilities under the IDEA, he did not qualify for special education because he was “appropriately served” through general education interventions..


All Local Educational Agencies (LEA) have a duty to identify students who may require special education services. 20 U.S.C. § 1412. An LEA can be put on notice of a student who may require special education services if a parent express a concern or from a professional assessment. Timothy O. v. Paso Robles Unified Sch. Dist., (2016) 822 F.3d 1105.

The Administrative Law Judge (ALJ) issued a finding that the District violated its child find obligation in that the Student should have been qualified for special education in 2018. The ALJ also found that the district denied Student FAPE in 2018 by failing to find him eligible for special education.


The District argued that Student’s diagnoses did not qualify him for special education services since Student was receiving appropriate services through general education intervention. However, the court deferred to the ALJ’s finding that the District simply focused too much on Student’s good academic standing in making its determination regarding the appropriateness of special education services. The court noted that “academic success alone does not determine whether special education services are necessary.” As cited in L.J. by & through Hudson v. Pittsburgh Unified Sch. Dist., (2017) 850 F.3d 996. Hearing officers and courts may interpret “educational performance” to go beyond grades.

Here, the District’s overreliance on academic data prevented the District from providing appropriate services to Student. Had the District recognized Student’s anxiety and its impact on his social and behavioral interactions, appropriate services may have been provided in time for the District to avoid this adverse ruling. While academics are certainly part of an IEP team’s evaluation, it remains only a piece to a student’s overall evaluation puzzle. Without considering all relevant data and information, an LEA may find itself failing to properly serve a student who is otherwise eligible for special education services.

IEP Not Required For Students Unilaterally Placed In Private Schools Unless Specifically Requested by Parents According to Ninth Circuit

Author: Omer A. Khan, Attorney at Law


On December 30, 2021, the Ninth Circuit Court of Appeals ruled in favor of the school district in Capistrano School District v. S.W. 2021 WL 6141122, where the Parents unilaterally placed their child in a private school when they grew dissatisfied with the public school’s IEP for the Student. The Court held for the District on all three issues, finding the IEP’s goals were sufficient, that the District was not under an obligation to file for due process if it determined the agreed-upon portions of the IEP constituted FAPE, and, critically, that the District was not obligated to prepare an IEP for the student because it was not specifically requested by the parents, even though the parents were seeking tuition reimbursement from the District.


Student was enrolled at the District for kindergarten and first grade. Parents were dissatisfied with Student’s kindergarten IEP, and at her first grade annual IEP meeting, expressed a desire for Student to receive more intensive support. The District proposed new goals and accommodations that did not meet the Parents’ requests. Parents consented to components of the IEP, but not the whole IEP. Parents filed a due process complaint and withdrew Student from public school in winter of the Student’s first grade school year. Student continued to attend private school in second grade, and Parents filed a new due process complaint requesting reimbursement for Student’s private school costs. The District declined the request, proposed an IEP meeting, and filed its own due process complaint seeking to assess Student for special education.


The Court acknowledged three remaining legal issues on appeal from the District Court and Office of Administrative Hearings: 1) whether the District’s IEP goals were sufficiently adequate to constitute FAPE given alleged deficiencies in responding to parent concerns and data collection, 2) whether the District was obligated to file for due process in Student’s first grade year when Parents only partially consented to the District’s IEP, and 3) whether the District was obligated to prepare an IEP for Student’s second grade year given Parents had submitted a request for reimbursement. After holding in favor of the District that the IEP goals were sufficient, the Court established significant precedent for LEAs in its jurisdiction in holding in favor of the District on the second and third issues.

Specifically, the Court held that the District was not required to file for due process despite Parents’ partial consent of Student’s first grade IEP because, in the District’s judgment, the consented portions constituted FAPE for the Student. The Court reviewed the plain text of Education Code § 56346(e) and prior cases analyzing the subsection, finding that the District was only under an obligation to file for due process where “the school district determines” the unconsented portion was necessary to provide FAPE. If the consented portions of the IEP are sufficient to provide FAPE, the District was not required to file for due process. The Court made it clear that the District had ample discretion to come to this conclusion.

The Court also held that the District was not obligated to continue to develop IEPs for Student through second grade even though there was a pending FAPE dispute and the Parents had requested reimbursement for private school costs. The Court reviewed the plain language of the IDEA at § 1414(d)(2)(A), which stated that, generally, LEAs must prepare IEPs for students in the LEA’s jurisdiction, with the exception of students in private schools, who are entitled to a services plan. The Court did not disturb the longstanding rule that parents with students in private schools are only entitled to an IEP when they specifically request an IEP. The Court simply found no justification to require LEAs to develop an IEP when there is nothing outside of a request for reimbursement. The Court reviewed a case from the First Circuit Court of Appeals where this rule was established, Town of Burlington v. Department of Education (1st Cir. 1984) 736 F.2d 773, and disagreed with its holding, finding no statutory basis for the rule.


This ruling lightens the burden on LEAs. First, while LEAs must still file for due process against a parent in certain circumstances, this case makes clear the requirement does not extend to all unsigned IEPs. Rather, the obligation only arises if the LEA determines that the unsigned components of the IEP are required to provide Student with FAPE.

Secondly, LEAs do not have to develop IEPs for students in private schools unless the parents specifically request an IEP. A request for reimbursement does not trigger this requirement on its own for LEAs in the Ninth Circuit’s jurisdiction. This is a welcome rule for LEAs because writing an IEP for a student who has not been attending the LEA presents significant challenges from both a logistical and assessment standpoint.

Unsealed Envelope of Test Scores Leads to FERPA Violation

Author: Michael Tucker, Attorney at Law


The Student Privacy Policy Office found that the Port of Los Angeles High School violated the Family Educational Rights and Privacy Act (FERPA) when a teacher delivered an unsealed envelope containing a student’s PSAT test booklet and score report, as well as the student’s College Board ID number and access code to the student’s personal information, to the wrong student.  (Letter to Mora, Student Privacy Policy Office, 121 LRP 12780.)


A student’s (Student) parent filed a complaint with the Student Privacy Policy Office alleging a FERPA violation.  Specifically, the parent alleged that a teacher at the Port of Los Angeles High School violated Student’s privacy rights when the teacher inadvertently disclosed Student’s education records, including personally identifiable information, without consent.

The teacher had handed out an unsealed envelope containing Student’s PSAT test booklet and score report to the wrong student.  The envelope also contained Student’s College Board ID number and an access code to the Student’s personal information.


FERPA prohibits a local educational agency (LEA) from disclosing personally identifiable information from students’ education records without consent unless the disclosure otherwise satisfies an exception.  Specifically protected from disclosure are “education records,” which includes records that are: (1) directly related to a student; and (2) maintained by an educational agency or other specified party. (34 CFR § 99.3).


LEAs should take thoughtful precautions to prevent unauthorized student record disclosure.  Here, the disclosure (and FERPA violation) could have been avoided if the envelope had been sealed, delivered to the correct student, or mailed directly to the student’s home.

The good news here is that these types of inadvertent disclosures are generally avoidable through training and establishing the proper procedures and protocols to maintain and deliver student records.  Specifically, had the school developed a procedure to mail this information directly to the student, the human error in delivery could have been avoided.  Moreover, if the teacher had been directed to carefully seal all student records, the inadvertent disclosure may have been avoided and easily corrected when discovered.

Student COVID-19 Vaccine Mandate Expected to Include Personal Belief Exemption

By Eric Stevens

On October 1, 2021, Governor Newsom announced his intention to add the COVID-19 vaccine to the list of vaccinations students must have to attend school in-person. (Press release available here.) While this announcement received much attention, there was little coverage of the Governor’s Office’s acknowledgement that the method the Governor intends to use to add the COVID-19 student vaccination requirement would be legally required to honor both medical and personal belief exemptions.

Health and Safety Code section 120335 establishes a list of diseases for which a student must be immunized if the student will participate in in-person K-12 schooling. Generally, students with a valid medical exemption or an individualized education program (“IEP”) are exempt from these requirements. While it is generally said that California eliminated the personal belief exemption from these vaccination requirements in 2016, the truth is more nuanced.

It is true that, under current law, a student cannot claim a personal belief exemption from vaccination against the ten diseases that the Legislature has added to Health and Safety Code section 120335. However, section 120335 also permits the California Department of Public Health to require student vaccination against any other disease. The key difference is that CDPH may add vaccination requirements “only if exemptions are allowed for both medical reasons and personal beliefs.” (H&S Code § 120338.)

Governor Newsom intends to direct CDPH to mandate the COVID-19 vaccination for K-12 students, meaning it would be subject to a personal belief exemption. California has even not-so-obviously acknowledged this in supplemental material released after the Governor’s announcement. (See the bottom of page 2 in the document available here.)

Mask mandates have become a flashpoint for many local educational agencies. While it seems like the expected COVID-19 student vaccine mandate could be equally controversial, on closer look that may not be the case because it is expected to include a personal belief exemption. The major caveat here, though, is that the Legislature itself could opt to add COVID-19 to Health and Safety Code section 120335, thereby eliminating any personal belief exemption. As with so many things related to COVID-19, we will just have to wait and see. In the meantime, we at Girard, Edwards, Stevens & Tucker LLP are monitoring the situation for you.

State and Federal Agencies Issue More Guidance Interpreting IDEA Requirements as Schools Return to In-Person Services

By Heather M. Edwards

On September 30, 2021, the U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS) issued a Question-and-Answer document interpreting requirements of the IDEA considering the challenges of the COVID-19 pandemic as schools return to in-person services. (Return to School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act) The new guidance document includes topics such as considering the child’s need for compensatory services and use of alternative means such as videoconferences or conference calls to hold IEP team meetings and due process proceedings even when schools have returned to in-person instruction.

In addition, on September 1, 2021, the California Department of Education issued guidance for local educational agencies in identifying factors to consider when determining impacts to learning or services related to COVID-19 school disruptions, including examples of strategies to monitor pupil progress for the development of IEPs. (Conducting Individualized Determinations of Need) The guidance includes, among other things, questions for IEP teams to consider when determining services and support needs for students.

Also, on August 24, 2021, the Office of Special education Programs (OSEP) issued guidance encouraging local educational agencies to review their current child find policies and procedures to ensure they remain effective in light of the impact of the COVID-19 pandemic on students. (Return to School Roadmap: Q&A on Child Find Under Part B of the Individuals with Disabilities Education Act). Specifically, OSEP recommends that LEAs consider conducting additional screenings of children whose academic and behavioral needs may require an evaluation to determine eligibility for special education and related services. OSEP also recommends that LEAs find ways to increase awareness of special education supports for students by providing information about the screening process in settings frequented by parents and conducting social media campaigns.

While various informal guidance from state and federal agencies that oversee special education and related services is not legally binding, hearing officers and courts often rely upon this type of guidance as persuasive authority in analyzing specific cases. LEAs may want to review the information contained in such guidance to seek clarity regarding existing requirements under the law.

Continued Flexibility for Teleconferenced Meetings Under the Brown Act

By Eric E. Stevens, Attorney at Law

At the start of the COVID-19 pandemic, Governor Gavin Newsom issued an Executive Order relaxing the Brown Act’s requirements and paving the way for the widespread adoption of teleconferenced or “virtual” board meetings in which members of a public board participate from a remote location by audio, video, or both. The Legislature has now formally amended the Brown Act though AB 361 to make it easier to continue holding teleconferenced meetings under “abbreviated teleconferencing procedures” through the end of 2023. However, AB 361 creates new conditions for any public agency trying to use these relaxed teleconferencing procedures.

The “default” for teleconferenced meetings is almost the same as it was pre-COVID-19:

  • Board members’ teleconference locations must be disclosed and publicly noticed.
  • Board members’ teleconference locations must be accessible to the public.
  • Agendas must be posted in advance at all teleconference locations.
  • A quorum of the board’s members must be physically present at publicly noticed locations within the agency’s jurisdiction where the public can observe the board meeting and offer public comment.
  • All votes taken during a teleconferenced meeting must be by rollcall of the present board members.

Teleconferenced meetings were relatively rare before COVID-19 because these requirements meant that if a board member wanted to teleconference into the meeting from home, the board member’s home address needed to be publicly disclosed with the meeting agenda and opened up to the public during the meeting.

A public agency can always follow these traditional requirements and stay compliant with the Brown Act.

However, AB 361 lets a local public agency’s board continue to hold teleconferenced meetings from October 1, 2021, to December 31, 2023, without disclosing and providing public access to teleconference locations or a physical meeting site in three circumstances:

  1. The meeting is held during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing;
  2. The meeting is held during a proclaimed state of emergency and the meeting is held for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees; OR
  3. The meeting is held during a proclaimed state of emergency and the board has determined, by majority vote, that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

As of this writing, the state of emergency declared by the Governor remains and state officials have “imposed or recommended measures to promote social distancing,” so every public agency finds itself in the first circumstance. If in the future a board finds itself in a proclaimed state of emergency, but state or local officials have not recommended measures to promote social distancing, the board can invoke these teleconference meeting exceptions by voting that meeting in person would present imminent risks to the health or safety of attendees. These changes to the Brown Act are brand new and untested, but this could potentially apply during states of emergency declared due to natural disasters like wildfires.

AB 361 imposes some new conditions that did not exist under the Governor’s expiring Executive Order. These conditions only apply where a board is trying to hold a teleconferenced meeting without satisfying the “default” rules highlighted at the beginning of this Legal Alert.

The principal condition added by AB 361 is that, so long as a state of emergency declaration remains active, or state or local officials have imposed or recommended measures to promote social distancing, a board must make monthly findings by majority vote that:

  • The board has reconsidered the circumstances of the state of emergency, AND
  • The state of emergency continues to directly impact the ability of members to meet safely in person OR state or local officials continue to impose or recommend measures to promote social distancing.

These changes go into effect October 1, 2021, but a board may retroactively make these required findings within 30 days of its first teleconferenced meeting post-October 1. These findings can take the form of a resolution that cites to this new requirement in Government Code section 54953(e)(3) and “finds,” “makes,” or “adopts” the facts above. Findings are factual conclusions, and additional explanation to support those factual conclusions strengthens them in the event of any legal challenge.

Once a board adopts a resolution that makes these required findings, the board must reconsider the issue and readopt the required findings every 30 days to continue to hold teleconferenced meetings under these relaxed rules.

It is helpful to remember that these requirements only apply if a board’s meetings are not in compliance with the Brown Act’s traditional requirements.

AB 361 also adds conditions related to disrupted broadcasts and public comment by phone or video during teleconferenced meetings:

  • If the meeting broadcast is disrupted, the board shall take no further action on items on the meeting agenda until the broadcast is restored and members of the public can again view or listen to the meeting, and offer public comment to the board.
  • The board cannot require public comments to be submitted in advance of the meeting and must provide an opportunity for public comment in real time.
  • While usually members of the public cannot be required to register as a condition of making a public comment, a public agency does not violate the Brown Act if a third-party internet website or online platform used for public comment requires users to register to use the service.
  • Where a board uses timed public comment periods, the comment periods must remain open for members of the public to register through a call-in or video service and be recognized until the timed comment period has elapsed.
  • Where a board allows public comment on separate agenda items without a maximum time limit for the public comment period, a “reasonable amount of time” must be allowed for members of the public to register through a call-in or video service and be recognized.


Again, these conditions regarding disrupted meetings and public comment periods only apply to teleconferenced meetings using the relaxed teleconferencing rules available under AB 361.

As a specific example, if a board convenes in-person within the agency’s boundaries for a properly agendized meeting and makes that meeting location available to the public to observe the meeting and offer public comment in-person, the board meeting is in compliance with the Brown Act’s usual, pre-COVID-19 requirements. If a video stream and video comment option is simultaneously offered to the public, the board may continue to conduct business even if that video stream is disrupted because the Board was not taking advantage of AB 361’s relaxed teleconferencing procedures.

Finally, remember that traditional Brown Act requirements remain regardless of whether you are taking advantage of AB 361:

  • Public agencies must still give advanced notice of each regular or special governing board meeting by publicly posting meeting agendas.
  • Members of the public must still have access to the meeting, the agenda must still provide an opportunity for members of the public to address the board directly, and the agenda must still identify the means by which members of the public can attend the meeting and comment, whether in-person or via a call-in option or an internet-based service option.

For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.

Top Six Back to School Tips for Administrators and Teachers

Author: Anisa Pillai

As the excitement of the 2021-2022 school year fast-approaches, some uncertainty still lingers as teachers and administrators continue to navigate educating students in the face of the COVID-19 pandemic and ever-changing rules and regulations. Here are our top six tips for a great start to the 2021-2022 school year:

  1. Local educational agencies (“LEAs”) must make sure staff members are informed and have a clear understanding of your District’s COVID-19 guidelines. Each local educational agency may have different protocols and procedures put in place depending upon local public health guidelines, and the landscape is constantly changing and evolving as new information becomes available. As such, it is critical that staff members have the most up-to-date information and are properly trained on COVID-19 safety protocols when the school year starts.
  1. For the 2021-2022 school year only, school districts and county offices of education (“COEs”) must ensure that independent study is offered as an educational option, which replaces distance learning. Districts may contract with a COE or establish an interdistrict transfer agreement to meet the requirements of offering independent study, or seek a waiver from the California Department of Education (“CDE”), under certain circumstances. School districts and COEs must also notify parents of the option to enroll their child in independent study, which includes information posted on the district’s or COE’s website regarding a parent’s right to request a meeting prior to enrollment, a pupil’s rights regarding enrollment and disenrollment in independent study, and requirements regarding synchronous and asynchronous instructional time, among other things. Clear communication with families is important in order to ensure that everyone is confident and prepared at the start of the school year.
  1. All LEAs must develop a plan for offering independent study to pupils impacted by school closures due to emergency conditions beginning on September 1, 2021.
  1. All LEAs must ensure that all IEPs are in place and being implemented with fidelity at the start of the school year. As discussed above, with the potential for changing protocols and guidelines, local educational agencies must ensure that a child’s entire IEP is accessible to all staff or service providers who are responsible for its implementation and that each IEP will be materially implemented.
  1. All LEAs must make sure that students and families feel supported and validated. The 2020-2021 school year and accompanying social isolation has likely been extremely stressful for students and parents alike. It’s important to ensure open lines of communication with parents who may be anxious about the changes to their child’s educational environment, and to support and validate students who may have anxieties about the changes in their lives as they return to school. For example, having a clear communication protocol and expressing empathy and understanding to parents and students will be important for creating a safe start to the school year.
  1. All LEAs should consider providing training to staff to strengthen their communication skills, including offering conflict resolution strategies and emphasizing the importance of presenting information clearly, tactfully, and with empathy when working with parents and students during the uncertainties of the continuing COVID-19 pandemic.

We recommend consulting an attorney if you would like additional details about any of the above tips.

Best wishes for a successful 2021-2022 school year!

Say What? Supreme Court Limits School District Regulation of Off-Campus Student Speech On Social Media

Author: Omer A. Khan, Attorney at Law




On June 23, 2021, the United States Supreme Court ruled that the Mahanoy Area School District (District) violated the First Amendment when it imposed a one-year suspension on a student from participation in her junior varsity cheerleading squad for comments made on the student’s social media account. The Court reasoned that since the posts were created off school grounds, outside of school hours, and there is no evidence the posts caused a substantial disruption to the school environment, the District did not have a substantial interest in regulating the speech.


In 2017 a 14 year old student learned she did not make her high school’s varsity cheerleading squad. On Saturday, the student posted a picture of herself and a friend with their middle finger raised and a profanity-laden caption attached to her Snapchat account. The student deleted the post in 24 hours, but not before the picture was viewed by 250 of her followers, including several of her coaches. The coaches reported the posts and the student was suspended from her junior varsity cheerleading squad for one year.

The student filed for a temporary restraining order in District Court for reinstatement to the cheerleading squad. The District Court granted the restraining order and subsequently granted the student’s motion for summary judgment. On appeal, the Third Circuit Court of Appeals affirmed the District Court’s decision.  The school district appealed to the Supreme Court.


Students have constitutional rights at school, including the freedom of speech guaranteed by the First Amendment. However, school districts are permitted to regulate specifically enumerated categories of student speech, including speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” (Tinker v. Des Moines Independent Community School Dist. (1969) 393 U. S. 503.)

The Supreme Court noted that schools can regulate off-campus student speech when special characteristics were present. These include:


  • Severe bullying or harassment targeting particular individuals;
  • Threats aimed at teachers or other students;
  • The failure to follow rules concerning lessons;
  • The writing of papers;
  • The use of computers;
  • Participation in other online school activities; and
  • Breaches of school security devices, including material maintained at school computers.


However, the Court noted that a school district’s efforts to regulate off-campus speech must face stricter scrutiny than on-campus speech, where a district is given substantial leeway under the First Amendment. The facts of this case did not present such special characteristics. The posts appeared outside of school hours from a location outside the school and the student did not identify the school in her posts or target any member of the school community with vulgar or abusive language. The content was posted through a personal phone to her private circle of Snapchat friends.

The Court also rejected the District’s argument that the school had a substantial interest in regulating the Snapchat posts. The District argued it had an interest in prohibiting students from using vulgar language to criticize a school team or its coaches but could not provide evidence of any other efforts to reduce vulgar language outside of the classroom. The District also argued that it was attempting to prevent disruption within the bounds of a school-sponsored extracurricular activity, but there was no evidence of such disruption outside of a few minutes discussion in a class and some irritation by team members. The District finally appealed to the need for team morale, but there was little evidence of such a decline; the cheerleading team continued activities regardless of the posts.


School districts must take caution when attempting to regulate a student’s social media account or punish a student for content that was posted, particularly when it is off-campus and outside of school hours. Such regulation must satisfy the elements above to justify regulation and enforcement. The Supreme Court listed these special circumstances and noted such a list is not exhaustive. Districts should consult with legal counsel to ensure social media regulation and enforcement is consistent with students’ free speech rights.

Out of Sight, Out of Mind? Privately Placed District Resident Student Still Requires a FAPE from District

Author: Michael Tucker, Attorney at Law


On June 1, 2021, the California Supreme Court denied a California school district’s petition for certiorari to hear the district’s arguments that it did not deny a privately placed district resident student a Free Appropriate Public Education (FAPE) when it refused to evaluate the student or develop an IEP.  The Supreme Court’s denial left the district bound by the 9th Circuit Court of Appeal’s ruling that a FAPE must be available to all resident students despite out-of-district enrollment when the district is aware that the student desires to return to the district.  (Bellflower Unified School District v. Lua, (2020) 832 Fed.Appx. 493; unpublished.)


Student was a district resident but was unilaterally enrolled by her parents in a private school located outside of district boundaries.  Student qualified for special education services under the categories of speech and language impairment and autism. Student’s parents alleged that District was responsible for assessing Student and holding an IEP meeting, while district asserted that its responsibilities for Student’s education ceased when Student enrolled in a school outside of the district.

In 2017, after a due process hearing, the Office of Administrative Hearings held that the District was responsible for conducting assessments and holding an IEP meeting despite Student’s attendance at a private school outside of the district.  The District refused to comply with OAH’s order and after another hearing, OAH ruled that the District was also responsible for reimbursing parents for the private school placement.

The 9th Circuit Court of Appeals ruled that the District remained responsible for evaluating Student and providing special education services because Student was still a district resident.


The 9th Circuit found that pursuant to California Department of Education implementing regulations, a school district is responsible for evaluating a resident child for purposes of making a FAPE available even if the child is enrolled elsewhere.  The court noted that “‘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.’”  (Citing 71 Fed. Reg. at 46, 593.)   Here, the court found that parents made repeated requests to the District to hold an IEP meeting and indicated they were still interested in a public school placement.  The court further found a lack of evidence supporting the District’s contention that “parents expressed a clear intent” to maintain the private placement permanently.  Moreover, the Court affirmed the award of the private placement reimbursement because the District failed to make a FAPE available to Student in a timely manner prior to enrollment in the private placement.

After multiple requests from parents that the District hold an IEP meeting, the District refused, instead insisting that the Student’s IEP from years past was an adequate placeholder until Student reenrolled in the District.


The court’s ruling serves as a valuable reminder of a school district’s responsibility for district resident students.  Despite the student enrolling in a private school out of the district, the court did not accept the District’s argument that such enrollment essentially relieved them of responsibility to offer an appropriate educational program due to the parents’ repeated and documented interest in returning to the District.  It appears the court found the District lacked evidence to support their position that the parent made it clear they did not intend to enroll Student in the District.

It should be noted that this particular opinion was not published.  This means that while its applicability is limited, the court’s recitation of the relevant law and its reasoning still provides valuable guidance.  As such, a district with resident students placed out of district who qualify for special education services should consider methods to determine if the students intend to return.  If so, the district can make plans to satisfy their obligations under the IDEA.  Districts should also carefully and clearly document when a parent indicates they do not intend to enroll their student with the district.