Back in October 2017, this blog featured a post describing R.E.B. v. Hawaii Department of Education, 870 F.3d 1025, 117 LRP 38439 (9th Cir. Sept. 13, 2017) (per curiam, before Kozinski, Hawkins, and Bea). In April of the following year, the Ninth Circuit withdrew the opinion and set the case for rehearing. The other shoe has finally dropped, and on May 9, 2019, the court issued a new decision taking a position opposite to the one in the first panel opinion. R.E.B. v. Department of Educ., No. 14-15895, 2019 WL 2062045, — F. App’x —, 74 IDELR 125 (9th Cir. May 9, 2019)
In R.E.B., the parent of a of child with autism contested a proposed IEP that called for the child to be moved from a private school to kindergarten in a public school. The hearing officer upheld the IEP and the district court affirmed. In its October 2017 decision, the Ninth Circuit affirmed in part and reversed in part. The court first ruled that the case was not moot even though the public school system paid the tuition for the private school while the proceedings were pending. The court reasoned that the parent continued to demand reimbursement for transportation as well as to seek compensatory education.
The court then ruled that the public school system violated the IDEA by failing to address the parent’s concern about the provision of transition services for the transition to public school kindergarten. The court said that the parent adequately raised the issue of transition, specifically the need to take into account the changes anticipated in the child’s educational experience, such as the number of fellow students and the daily routines the child would have.
The court also held that the school system violated the IDEA by failing to specify in the child’s IEP the least restrictive environment. The court declared that “J.B.’s IEP contained only the vague statement that J.B. would ‘receive specialized instruction in the general education setting for Science and Social Studies activities as deemed appropriate by his Special Education teacher/Care Coordinator and General Education teacher.’ This improperly delegated the determination of J.B.’s placement to teachers outside the IEP process. The language was also too vague to enable J.B. to use the IEP as a blueprint for enforcement.” 870 F.3d at 1028.
The court further ruled that that the IEP’s failure to specify Applied Behavioral Analysis methodology violated the IDEA when the IEP team discussed the methodology at length and recognized that it was integral to the child’s education. The case was remanded for a determination as to remedy.
Judge Bea dissented in part, applauding the defendant for its plan for gradual transition of the student and contending that the IDEA does not require that transition services be specified on the IEP, and further stating that the IEP adequately explained the extent to which the child would participate in education with children without disabilities, and that the IEP did not need to spell out the use of ABA methodology.
In the May 2019 decision, R.E.B. v. Department of Educ., No. 14-15895, 2019 WL 2062045, — F. App’x —, 74 IDELR 125 (9th Cir. May 9, 2019), a panel consisting of Judges Hawkins, Bea, and Nguyen affirmed the district court’s original decision in favor of the school system. The memorandum opinion agreed with the earlier panel decision that the case was not moot, then went on to hold that the defendant sufficiently addressed the parent’s concerns about where the summer services for transition from the private autism school to public school would take place. The IEP listed the current public school for the child; the court declared that “the IDEA does not require that an IEP list the specific school where summer transition services will take place. See 20 U.S.C. § 1414(d)(1)(A).” Id. at *2. The court noted that the school system contemplated a gradual transition to public school that would not entail mainstreaming so as to prevent the child from being overwhelmed.
The court also ruled that the IEP sufficiently specified the least restrictive environment for the student when it provided for a self-contained program for most academic subjects with participation in the mainstream at discretion of special education teacher. The court explained:
This nuanced determination was reasonable because, as part of the Science and Social Studies curriculums, elementary school students often perform experiments, simulations, and field trips—the activities to which the IEP alluded. Given J.B.’s autism, it was reasonable for the IEP team to conclude that he would be able to participate successfully with nondisabled peers for some of these activities, but not for others, and that those activities that would be proper for J.B. could not be determined at an IEP meeting months or years before those activities happened. Therefore, it was reasonable for J.B.’s IEP to specify that J.B.’s “Special Education teacher/Care Coordinator and General Education teacher” would decide together which particular activities J.B. would participate in with nondisabled peers with the benefit of specialized instruction. Particularly in light of the fact that the IDEA provides that the LRE should be specified “[t]o the maximum extent appropriate,” 20 U.S.C. § 1412(a)(5)(A), J.B.’s IEP satisfied the IDEA’s LRE requirement.
The court went on to state that the IEP need not specify the qualifications of the one-on-one aide who would be assigned to the student, and that while for some students the teaching methodology should be specified in the IEP, in this case “J.B.’s teachers thought it was best to use multiple teaching methodologies with J.B. They wanted the flexibility to select the methodology that best fit J.B.’s needs as they arose.” Id. at 3. In other words, the ABA methodology was not found to be integral to the child’s education. The case thus was similar to J.L. v. Mercer Island School District, 592 F.3d 938, 952 (9th Cir. 2010), in which the court found a need for flexibility in teaching methodologies for a student when experts recommended several potentially effective programs, not a single choice.
The new R.E.B. decision is not precedential, so its legal significance, even within the Ninth Circuit, consists of its elimination of the earlier panel opinion as a precedent. Decision makers outside of the Ninth Circuit would be free to follow either of the decisions in an appropriate case, depending on how persuasive they view the competing views to be.