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.

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