Capistrano Unified Sch. Dist. v. S.W., Nos. 20-55961, 20-55987, 2021 WL 6196698, 80 IDELR 63 (9th Cir. Dec. 30, 2021), is the unpublished counterpart to Capistrano Unified Sch. Dist. v. S.W., 21 F.4th 1125, 80 IDELR 31 (9th Cir. Dec. 30, 2021), the published opinion in which the court decided a number of issues relevant to appropriate education and the content and implementation of IEPs. Most significantly, the published opinion holds that when a student has been placed in a private school by the parents, the school district does not have a continuing obligation to provide an IEP when the previous one expires, unless the parents ask for an IEP.
The unpublished opinion took up the issue of remedies. The ALJ ruled that the district denied the student appropriate education during the student’s first grade year, a decision that the district did not appeal. The ALJ had awarded reimbursement for the second-grade year, however, along with reimbursement for occupational therapy services, and the district court affirmed that decision. The court of appeals reversed the district court as to tuition reimbursement for the second-grade year. It said that the basis for the second-grade award was the lack of an IEP for that year, but, as the published court of appeals opinion stated, there was no legal duty to prepare an IEP for that year when the parents said they were keeping the student in the private school after first grade and did not ask for a new IEP. The court of appeals declared:
[W]e agree with Capistrano that, given the particular facts of this case, because it awarded a remedy untethered from any wrong, the district court abused its discretion in ordering reimbursement for second grade. The district court’s choice of a remedy must be logical, plausible, and supported by inferences that may be drawn from facts in the record. Here, on these particular facts, the district court’s award of reimbursement for second grade was illogical because it did not tether that award to any particular wrong.
2021 WL 6196698, at *1 (citation omitted).
In contrast, the court of appeals said that there was no abuse of discretion in awarding reimbursement for the occupational therapy services. The parents had continually raised the issue of OT during the administrative and court proceedings and the school district waived the issue by failing to argue in its opening brief on appeal that the services for which the parents sought reimbursement exceeded what FAPE required. The case was remanded for considering attorneys’ fees.
The unpublished opinion’s declaration that the remedy ordered needs to be tied to the violation is no surprise. Nevertheless, it should be instructive to due process decision-makers that they must be certain not only that the award of relief is sufficiently connected to a denial of FAPE, but also that they should write decisions that make clear to reviewing authorities that the decision-maker took the nature and scope of the violation into account in crafting the remedy.