A recent case concerning several issues of interest to impartial hearing officers is R.A. v. West Contra Costa Unified School District, 696 F. App’x 171, 70 IDELR 88 (9th Cir. 2017). The case dealt with a ten-year-old student with autism spectrum disorder whose parents contested the Individualized Education Program (IEP) and placement offered by the school district. The parents advocated a program with one-on-one individualized services to be offered at a public school; the district favored placement at a private school concentrating on serving students with autism, Anova Center for Education.
In a relatively brief, nonprecedential opinion, the Ninth Circuit Court of Appeals affirmed the district court, which had upheld an ALJ decision in favor of the school district. The court of appeals disposed of several issues in sequence. It held that the school district did not deny the student free, appropriate public education by not completing behavior and psychoeducational assessments. It pointed out that the parent insisted that she see and hear the child while the assessments were being conducted, something the IDEA does not require the district to afford. The court also held that the district did not violate the IDEA by predetermining the child’s placement. It stated that, if the district had presented the Anova placement to the parents as a “take it or leave it” option, that would violate the IDEA, but it said that instead, the district openly discussed the proposed IEP and placement at two meetings, taking up multiple options. The absence of an Anova representative from one IEP meeting was an IDEA violation, but the violation was not shown to harm the parents’ rights. Finally, the court held that the school district did not violate the least restrictive environment (LRE) obligation. It noted that no one believed that the child was ready for mainstreaming. Moreover, said the court, the parents’ proposal of one-on-one services in public school may have been a more restrictive option than the private school placement offered by district.
Despite its lack of precedential impact, the case merits attention on all three issues it discusses. First, it reinforces the conclusion that a party that insists on conditions for an evaluation that are not required by the law will not be heard to complain about the failure to complete the evaluation. Second, although take-it-or-leave-it offers of placement violate the IDEA, a party needs more than dissatisfaction with the ultimate placement offer to sustain a predetermination claim, particularly where, as here, the IEP team considered multiple placement options. Third, although LRE is a valid criterion for placement, a public school setting will not always be the LRE. On that last point, the case dovetails with prominent cases such as L.B. v. Nebo School District, 397 F. 3d 966, 41 IDELR 206 (10th Cir. 2004), which upheld a parental placement for a child with autism in a mainstreamed private school class in which the child had the services of an aide, along with extensive one-on-one services at home, where the one-on-one services did not take the child away from a school environment including nondisabled peers. In that situation as in R.A., the court found that the private placement was less restrictive than a public school one.