Monthly Archives:' August 2017

Superior Court Upholds County Board of Education’s Discretion and Authority to Conditionally Approve Charter Petition on Appeal

Author: Eric Stevens, Attorney at Law 

Girard, Edwards, Stevens & Tucker LLP successfully defended the Orange County Board of Education’s discretion and authority to conditionally approve the Excellence Performance Innovation Citizenship Charter School (“EPIC”) petition on appeal, and to determine for itself whether EPIC had satisfied those conditions.

The Anaheim Elementary School District and Anaheim Union High School District sued in December 2016 to void the County Board’s approval of EPIC’s charter petition or to compel the County Board to revoke the petition.  The Anaheim Districts argued that the County Board abused its discretion by conditionally approving the EPIC petition in November 2015 despite Orange County Department of Education Staff’s recommended denial.  In the alternative, they argued that EPIC had not satisfied the conditions of its approval and that the County Board should be forced to revoke EPIC’s petition.

The Superior Court found that the County Board did not abuse its discretion when it conditionally approved EPIC’s charter petition and later determined that EPIC had satisfied those conditions.  The Court showed great deference to the County Board’s decision-making and its ruling contains a number of important conclusions and implications:

(1)   the Charter Schools Act allows a board to conditionally approve a charter petition if the board believes a petition has some deficiencies, but those deficiencies can be remedied;

(2)   a board is not bound to follow a report and recommendation from its staff;

(3)   the validity of charter petition signatures may be judged as of the time a charter petition is filed with a potential authorizer; and

(4)   if a board imposes subjective conditions on an approved charter petition, the board retains discretion to interpret those conditions and decide whether they have been satisfied.



EPIC submitted a charter petition for a K-12 online, independent study program to the Anaheim Elementary School District in May 2015.  The District denied the petition and EPIC appealed to the County Board.  On appeal, both the Anaheim Elementary School District and the Anaheim Union High School District (in which EPIC would also operate) encouraged the County Board to deny the appeal.

Orange County Department of Education Staff reviewed the EPIC appeal and recommended that the County Board deny the appeal, citing Staff concerns over EPIC’s educational program, the signatures submitted with the petition, the petitioners’ ability to successfully implement the program, and the petition’s descriptions of various elements of the program.

The County Board believed that Staff’s concerns were not insurmountable and, in November 2015, the County Board voted to approve the EPIC petition, conditioned on the petitioners addressing the areas of concern noted in the Staff’s recommendation for denial and executing an MOU within four months.

One such area was petition signatures: had the EPIC petition been submitted to the Anaheim Elementary School District in May 2015 with a sufficient number of signatures of “meaningfully interested” parents?  County Staff and the petitioners subsequently pursued different strategies to validate the signatures.  County Staff attempted to contact individuals who had signed the petition months earlier to verify their “meaningful interest.”  EPIC checked original signatures against voter registration cards to verify identities and pointed to the fact that the signature pages contained affirmations of “meaningful interest.”  After extended discussion and Staff updates at multiple meetings, the County Board was satisfied that the EPIC petition had been submitted with a sufficient number of genuine signatures, and concluded that EPIC had satisfied the conditions of its approval based in part on Staff’s feedback that EPIC had addressed concerns through meetings and the adoption of an implementation plan.  The County Board approved an MOU with EPIC in March 2016 and EPIC began serving students in the Fall of 2016.


Practice Pointers

When considering a charter petition, the Charter Schools Act (“CSA”) gives significant discretion to a school district governing board or county board of education.  A court will generally defer to a board’s decision to approve or deny a charter petition if:

(1) the board explained what it was doing when it took action,

(2) the board made or adopted factual findings in support of its decision,

(3) there was some evidence before the board to support its decision, and

(4) the board did not misinterpret or misapply the law in making its decision.

Most of the six permissible reasons to deny a charter petition call for subjective judgments (see Educ. Code §§ 47605(b), 47607(b)), and if the four criteria above are satisfied, a court should not overrule a board’s decisions even if the court or another public agency has a different opinion on whether a petition could or should have been denied.

Factual findings often come from a staff recommendation presented to the board.  If a board agrees, it can adopt the staff report’s proposed findings.  However, as this ruling shows, ultimate authority always rests with the board and a board may disagree with staff’s findings or recommendation.  A board may always make and adopt its own findings during a public meeting, or partially adopt staff’s proposed findings with modification from the board.

If you have any questions regarding this case or charter petition review generally, please contact Eric Stevens of Girard, Edwards, Stevens & Tucker LLP at (916) 706 – 1255.

Ninth Circuit Held that District Did Not Predetermine Student’s Placement at a Private School or Deny Student FAPE by Failing to Include Private School Representative in IEP Meeting


Author: Heather Edwards, Attorney at Law

The parent of a 10 year old student with autism filed a due process complaint alleging, among other things, that the school district denied her child a free appropriate public education (FAPE) by (1) not considering her feedback or preferred placements during the IEP decision-making process, and (2) failing to include a private school representative in the IEP team meeting.  On appeal, the Ninth Circuit ruled in the District’s favor, finding that it did not deny Student a FAPE. (R.A., Hagit Habash, et al. v. West Contra Costa Unified School District, 70 IDELR 88, (9th Cir. 2017).)

Predetermination Claim

It is a violation of IDEA if a local educational agency predetermines placement for a student before the IEP is developed or steers the IEP to the predetermined placement.  K.D. ex rel. C.L. v. Dept. of Educ. Hawaii, 665 F.3d 1110, 1123 (9th Cir. 2011).  LEAs may not present certain placements as a “take it or leave it” option to parents. (See e.g., JG v. Douglas Cty. Sch. District, 552 F.3d 786, 801 (9th Cir. 2008).) Here, the court determined that the District did not predetermine Student’s placement in that the District had researched and discussed multiple placement options during two IEP meetings at which the Parents actively participated before determining that a private school was specifically tailored to the Student’s needs.

Private School Representation at IEP Team Meeting

IDEA requires that when developing IEPs for private school placements, LEAs are required to ensure that a representative of the private school attends an IEP meeting before the LEA places or refers the child to the private school.  If the representative cannot attend, the LEA must use other methods to ensure participation by the private school including via telephone. (34 C.F.R. § 300.325.)

Here, the court also analyzed Parents’ argument that the district denied Student a FAPE by failing to ensure that a representative of its proposed private school placement attended the IEP meeting.  The court determined this was a procedural violation of IDEA. However, the court focused its analysis on whether this violation affected Parents’ active participation in the IEP process, rather than an automatic denial of FAPE.  Interactions that occurred after the IEP team meeting showed that the District arranged for Parents to meet with private school personnel so that any questions and concerns could be addressed, Parents visited the school and were advised by the school on what next steps would be.  Parents advanced no argument as to how absence of a private school representative directly affected their rights. As a result, the court held that this procedural violation did not rise to the level of a denial of FAPE.


LEAs always need to be willing to consider other alternatives and participate in IEP meetings with an open mind. The difference between “preparation” and “predetermination” is an LEA’s willingness to actively listen to the parents’ concerns and input. It is also important to ensure that all IEP team members participate in the discussion and are able to express opinions and recommendations. The fact that an LEA does not ultimately offer the placement that parents prefer, or even that some IEP team members prefer, does not mean that an LEA has predetermined the student’s placement. Also, LEAs need to take steps to ensure participation (preferably in person, but if not, by telephone) of private school personnel in IEP meetings at which consideration of private placement for a child will occur.