Recent Ninth Circuit Special Education Cases (K-12)

The Ninth Circuit recently issued two cases in the area of special education of which you should be aware.


April 17, 2017

To:  Superintendents, Member School Districts (K-12)

From: Jennifer E. Nix, Assistant General Counsel

Subject: Recent Ninth Circuit Special Education Cases

Memo No. 14-2017

The Ninth Circuit recently issued two cases in the area of special education of which you should be aware.

The first, Avila v. Spokane School District 81, No. 14-35965, was decided on March 30, 2017.[1]  In that case, the Ninth Circuit held that the Individuals with Disabilities Education Act’s (“IDEA”) two-year statute of limitations with regard to filing a due process complaint does not prohibit a parent from filing a complaint seeking relief for alleged denials of free appropriate public education (“FAPE”) that occurred more than two years prior to the filing of the complaint.  The IDEA contains two “seemingly contradictory” provisions regarding the filing of due process complaints.  (Slip Op. at 10).  Section 1415(b)(6)(B) of Title 20 of the United States Code provides that each local educational agency (“LEA”) is required to provide, among others:

(6) An opportunity for any party to present a complaint—

(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; and

(B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) [specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint; or the LEA withheld information from the parent that was required to be provided] shall apply to the timeline described in this subparagraph.

Section 1415(f) describes an “impartial due process hearing,” including providing the timeline for requesting such a hearing, which is contained in Subsection 1415(f)(3)(C).  That subsection states that:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.[2]

The two subdivisions of the IDEA present a contradiction because the two-year limitations period in Section 1415(b)(6)(B) runs backward instead of forward from the reasonable discovery date.  The Ninth Circuit, in harmonizing these two provisions, held that the more specific provision—Section 1415(f)(3)(C) was the controlling provision.  (Slip Op. at 17).  Accordingly, parents have two years from the date they knew or should have known of the school district’s actions that form the basis of their claims in which to file a due process complaint alleging a violation of FAPE.  The true impact of this decision will be in how lower courts interpret the phrase “knew or should have known.”  It remains important to ensure that parents and guardians have copies of all documents relevant to the District’s offer of FAPE in their native language, and that parents and guardians receive copies of and understand their parental rights.

The second case, M.C. v. Antelope Valley Union High School District, No. 14-56344, was decided on March 27, 2017.  This decision contains a number of unique statements and holdings, including:

  • “Because disabled students and their parents are generally not represented by counsel during the IEP process, procedural errors at that state are particularly likely to be prejudicial and cause the loss of educational benefits.”  (Slip Op. at 7).
  • Underlying the issues in this case is a procedural error: the school district erroneously indicated on the IEP document that the student was to receive 240 minutes per month of services from a teacher of the visually impaired (“TVI”), when, in fact, the student was supposed to receive 240 minutes per week of TVI services.  According to the decision, the parent did not find out that her child was receiving at least 240 minutes per week of TVI services until the first day of the due process hearing, which was approximately a month after the erroneous IEP document was generated.  (Slip Op. at 8).  The Ninth Circuit held that this lack of notice impeded the parent’s right to monitor and enforce the services the student was supposed to receive (which the Ninth Circuit concluded is a facet of parental participation) because the parent was not aware she needed to monitor and enforce 240 minutes per week of TVI services.  (Slip Op. at 13-14).
  • The Ninth Circuit held that it was not clear if the procedural violation had resulted in educational harm to the student, who was receiving quadrupled instruction from a “teacher of the visually impaired”; however, the court stated that the parent’s legal fees she incurred filing a due process complaint amounted to substantive harm and qualified as a denial of FAPE.  (Slip Op. at 14 (“Incurring unnecessary legal fees is, of course, a form of prejudice that denies a student and his parents an educational benefit.”)).
  • The decision applies the “trial by consent” doctrine to the IDEA due process context.  The trial by consent doctrine permits a court to decide issues raised at hearing but not plead in the complaint if the parties demonstrate express or implied consent to hearing of such unpled issues.  In this case, because both parties “presented extensive evidence regarding the District’s offer of TVI services,” the District waived its right to object to the parent’s unpled claim that the District committed a procedural violation by failing to adequately document its offer of TVI services.  (Slip Op. at 9-10).
  • The decision states that: “An IEP is a contract.”  (Slip Opinion at 11).  This is in direct conflict with Van Duyn v. Baker School District 5J, 502 F.3d 811, 820 (9th Cir. 2007), which held that “An IEP is not a contract.”
  • The decision questions the propriety of the school district in failing to notify the parent or parent’s counsel of the mistake when it discovered the mistake—a week after the August 2, 2012, IEP was signed—and instead correcting five weeks later it in a September 17, 2012, IEP amendment.  The decision requires the district court to determine if “this course of conduct was a deliberate attempt to mislead M.N. or a mere bungling on the part of the District and its lawyers,” and ordered the district court to impose sanctions if it was the former.  (Slip Op. at 11-13).
  • The decision holds that if a school district does not provide an answer to a due process complaint within ten days, “the ALJ must not go forward with the hearing.”  Instead, the ALJ is supposed to order the school district to file an answer and order the school district to pay costs associated with the order and any delay in the hearing.  In a footnote, the Court indicates that this rule might not apply equally to parents, particularly if they are unrepresented.  (Slip Opinion at 16-17).
  • Finally, the decision remands the case to the district court to consider whether the school district’s offer of FAPE, made in 2012, provided a substantive FAPE under the standard established by the Supreme Court in Endrew F.v. Douglas County School District, 580 U.S. ___, slip op. at 11 (Mar. 22, 2017), indicating that the Ninth Circuit will apply Endrew F. retroactively.

Both decisions are attached to this Legal Update.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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[1] At the same time as the release of this decision, the Ninth Circuit also issued an unpublished memorandum decision in the same case in which the court found that an assessment for “Specific Learning Disability” was appropriate because the district evaluated the student for reading and writing disorders.  Parents had argued that the district should have assessed the student for dyslexia and dysgraphia.

[2] California law is substantially similar to this provision: “A request for a due process hearing arising under subdivision (a) of Section 56501 shall be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request.”  Education Code § 56505(l).