In AAA v. Clark County School District, No. 2:20-cv-00195-JAD-BNW, 2022 WL 17818393, 82 IDELR 94 (D. Nev. Nov. 30, 2022), appeal filed, No. 22-16935 (9th Cir. Dec. 16, 2022), pro se parents alleged that the school district denied their daughter a free appropriate public education (FAPE) by delaying implementation of a new IEP and by failing to provide FAPE during the 2018–19 school year. The court granted summary judgment in favor of the school district.
The district initially found the student eligible for special education under the autism spectrum disorder category before she entered kindergarten in 2016. At the parents’ request, the district evaluated the student for hearing loss and reassessed her eligibility for autism. The district determined that the student was eligible under the IDEA category of hearing impairment, but no longer qualified under the autism category. An IEP was developed to address the hearing impairment, followed by additional assessments and a subsequent IEP for the 2017–18 school year.
At the beginning of the 2018–19 school year, the parents requested an independent educational evaluation (IEE), which the district granted, and they also filed a due process complaint. The 2017–18 IEP expired on November 2, 2019. The district delayed convening an IEP meeting during the 2018–19 school year, citing the pending IEE, the due process complaint, and a lack of parental cooperation. After receiving the IEE, the district continued to delay, asserting that the parents refused further assessments and that the due process matter remained pending. The district ultimately developed a new IEP in May 2019, shortly before the end of the school year.
The parents later filed multiple due process complaints. The claims before the court were limited to allegations that the district denied FAPE by delaying implementation of the 2019 IEP and by failing to provide FAPE during the 2018–19 school year.
The court concluded that the delay in convening an IEP meeting before January 2019 was likely not an IDEA violation. The court relied on evidence that the father had stated he would not participate in IEP meetings until completion of the IEE and found that the district had reasonable latitude in attempting to secure parental participation.
The court did find a likely procedural violation based on the 122-day delay between receipt of the IEE and development of a new IEP. Although the due process complaint triggered stay-put protections requiring the student to remain in her then-current placement, the court emphasized that stay-put does not excuse a district from maintaining a statutorily compliant IEP. 2022 WL 17818393, at *5 (quoting Anchorage School District v. M.P., 689 F.3d 1047, 1057 (9th Cir. 2012)).
Nonetheless, the court determined that the procedural violation did not result in a denial of FAPE. The hearing officer had found that the district’s continued implementation of the 2017–18 IEP during the 2018–19 school year adequately met the student’s needs. That conclusion was supported by evidence of the student’s above-average classroom performance, progress reports, and witness testimony.
The court also rejected several challenges to the due process hearing and review procedures, concluding that any procedural errors were harmless given the provision of FAPE during the relevant school year. The court addressed each claim in turn.
First, the court rejected the argument that the impartial hearing officer (IHO) acted improperly by denying the parents’ request for production of the student’s entire educational record. The IHO concluded that she lacked authority to compel production of the entire record and that, in any event, the request was irrelevant to the issues raised. The court further noted that the parents failed to identify specific relevant records that were missing.
Second, the court rejected the parents’ objection to limitations placed on the independent evaluator’s testimony. The district had received the IEE report before parental consent to its dissemination was obtained, but there was no dispute regarding the report’s findings. The IHO subpoenaed the evaluator but limited testimony to issues not already resolved, excluding matters deemed irrelevant.
Third, the court upheld the IHO’s decision to prohibit the student’s aunt from questioning witnesses. Although the aunt was permitted to sit with and advise the father during the hearing, the IHO barred her from questioning witnesses or addressing opposing counsel on the ground that doing so would constitute the unauthorized practice of law.
The court also rejected the parents’ Section 504 claim, which was based on the same factual allegations as the IDEA claim.
The case is notable for two reasons. First, it reflects the court’s view that a failure to have a current IEP in place does not necessarily result in a denial of FAPE where the student continues to receive adequate special education services under a prior IEP. The court contrasted this outcome with cases in which reliance on an outdated IEP was found to deny FAPE because the IEP no longer reflected the student’s present levels of performance or needs.
Second, the decision is noteworthy because courts infrequently address challenges to hearing officers’ evidentiary rulings in detail. Here, the court carefully reviewed and upheld multiple discretionary rulings made by the IHO during the hearing process.