Monthly Archives:' June 2021

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  (Bellflower Unified School District v. Lua, (2020) 832 Fed.Appx. 493; unpublished.)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.

How To Address Requests for Retention of Students

Author:  Heather M. Edwards

As a result of school site closures due to the COVID-19 pandemic, parents of students with disabilities may be concerned about promoting their child to the next grade level during the coming school year.  In California, school districts and county boards of education are required to have a policy regarding the promotion and retention of students. (Ed. Code § 48070.) The policy must provide, among other things, parental notification when a pupil is identified as being at risk of retention and a process whereby the decision to retain or promote a pupil may be appealed. In addition, the policy must indicate the manner in which opportunities for remedial instruction will be provided to students to avoid retention. (Ed. Code § 48070.5). Therefore, local educational agencies want to ensure they are familiar with and adhering to their promotion and retention policies.

For students with disabilities, placement decisions under the Individuals with Disabilities Education Act (“IDEA”) are not synonymous with a school district’s policies and practices regarding the promotion and retention of its pupils. (Letter to Anonymous (OSEP 2000) 35 IDELR 35; Letter to Davis-Wellington (OSEP 2003) 40 IDELR 182.) The promotion or retention decisions for all pupils, including pupils with disabilities, are left to the state or local school district, and are generally not decisions left to the IEP team. (Letter to Anonymous (OSEP 2000) 35 IDELR 35.) However, IDEA does not prevent a state or local educational agency from assigning this responsibility to the IEP team. (Letter to Davis-Wellington (OSEP 2003) 40 IDELR 182.) Retention may also be considered as an appropriate remedy where there is evidence of a denial of FAPE, such as a school district’s failure to implement an IEP. (Letter to Anonymous (OSEP 2000) 35 IDELR 35.) For students with disabilities, the IDEA requires that an IEP specify any alternative promotion standards or requirements and the standards by which a student will be promoted.

The California Department of Education (“CDE”) has provided specific guidance related to the promotion and retention of students with disabilities. Generally, CDE recommends that where a student with a disability fails to meet board-adopted or individualized promotion standards, the IEP team should convene and consider certain questions including “did the student receive all the services identified in the IEP” and “was the student’s promotion standard appropriate and clarified in the IEP?” IEP teams should also consider what potential interventions and supports may be available to address parents’ concerns about potential learning loss and the impact to their child’s educational program, particularly when a child is transitioning from elementary to middle school or middle school to high school.

Interestingly, in response to school closures during the COVID-19 pandemic, the legislature has introduced Senate Bill 545 (Wilk) which would require school districts, upon receiving a request from a parent to retain a student for the 2021-22 schoolyear, to offer the student specified interventions and supports, certain credit recovery options, and to provide the parent information about research regarding the effects of pupil retention. We will be tracking this legislation as it moves through the process.