"It would be antithetical to the IDEA’s purposes to penalize parents—and consequently children with disabilities—for exercising the very rights afforded to them under the IDEA."
By Doug Goldberg
September 16, 2012
How often have you heard the School District blame the Parents for the failure of an IEP? I’ve heard it more often than I would like and it’s more common than some would like to believe.
This very topic was at the heart of a recent appeals proceeding conducted by the 9th Circuit Court of Appeals in the case of Anchorage School District v. M.P. The 9th Circuit was reviewing a ruling from a District Court that was “declining to consider whether M.P. received a FAPE (Free Appropriate Public Education) because his parents were equally or more at fault for the absence of an updated IEP.”
This ruling from the District Court, if upheld by the 9th Circuit, would have undermined the entire process established by Congress in IDEA and the rights afforded to parent’s to protect their child’s right to receive FAPE. The 9th Circuit understood the enormity of what the District Court had ruled and agreed to a judicial review of the lower court’s decision.
During that review, “The school district argued that the parents were at fault because 'they left the IEP meeting, did not file a dissenting report,' and did not adequately communicate their concerns to the school district.”
The 9th Circuit Court of Appeals disagreed, and wrote the following:
"M.P.’s parents contend that the district court erred by declining to consider whether M.P. received a FAPE because his parents were equally or more at fault for the absence of an updated IEP. We agree that the district court improperly shifted the burden for substantive compliance with the IDEA from the ASD to M.P.’s parents."
In coming to this decision, the 9th Circuit also wrote:
"Here, it is beyond dispute that M.P.’s parents were zealous advocates for their son. Due to their ongoing concerns about the adequacy of the educational opportunities and services provided by the ASD, M.P.’s parents filed four administrative complaints in August and September, 2008 and obtained a 'stay put' order in connection with a then-pending administrative proceeding. Having reviewed the record, we are aware that this zealousness probably contributed to their strained relationship with the ASD. Yet it would be antithetical to the IDEA’s purposes to penalize parents—and consequently children with disabilities—for exercising the very rights afforded to them under the IDEA.
Therefore, when the ASD received M.P.’s parents’ extensive revisions to the ASD’s February, 2008 draft IEP, the ASD had two options: (1) continue working with M.P.’s parents in order to develop a mutually acceptable IEP, or (2) unilaterally revise the IEP, and then file an administrative complaint to obtain approval of the proposed IEP. But the ASD could not simply ignore its affirmative duty under the IDEA by postponing its obligation to revise the outdated IEP."
(Some case law citations were removed for ease of reading.)
Based on the 9th circuit court of appeals finding that the lower court erred in its decision and shifted compliance from ASD to M.P.’s parents, they also found that M.P. WAS denied FAPE by the School District. In determining that M.P. was denied FAPE, the question of reimbursement of tutoring expenses that the parents incurred privately was also discussed.
While deciding whether M.P.’s parents could be reimbursed for privately incurred tutoring expenses the 9th Circuit wrote, “The IDEA permits a district court to grant such relief as the court determines is appropriate” and that the decision to grant reimbursement should be based on a two prong test that states:
1.) Did the school district’s placement violated the IDEA, and,
2.) Was the alternative placement proper under the statute?
The 9th Circuit ruled that M.P’s parents did meet this two-prong test for the time period between January 1, 2008 and December 31, 2008, and ordered reimbursement of the tutoring costs.
Since this is such an important decision I highly recommend everyone read it in its entirety. The 19-page ruling took me approximately 20 minutes to read and is well worth your time. For those that don’t have the time here is the opinion from the ruling in its entirety:
PAEZ, Circuit Judge:
"M.P., through his parents, appeals the district court’s ruling that the Anchorage School District (“ASD”) did not deny M.P. a free and appropriate public education (“FAPE”) because the failure to develop an updated Individualized Education Program (“IEP”) was mostly attributable to his “parents’ litigious approach.” The Individuals with Disabilities Education Act (“IDEA”) mandates that public educational agencies review and revise annually an eligible child’s IEP. 20 U.S.C. § 1414(d)(2)(A), (4)(A); 34 C.F.R. §§ 300.323(a), 300.324(b)(1).
Neither the IDEA nor its implementing regulations condition this—or any other—duty expressly imposed on a state or local educational agency upon parental cooperation or acquiescence in the agency’s preferred course of action. Penalizing M.P.’s parents—and consequently M.P.— for exercising the very rights conferred by the IDEA undermines the statute’s fundamental purposes.
Although the district court relied on an improper basis when it declined to consider whether the ASD complied with the IDEA’s substantive requirements, it is unnecessary to remand this issue. In light of the fully developed record, we conclude that the ASD deprived M.P. of a substantively adequate FAPE by relying on an outdated IEP to measure M.P.’s academic and functional performance and provide educational benefits to M.P. We further conclude that M.P.’s parents are entitled to reimbursement for private tutoring expenses incurred from January 1, 2008 to December 2008, and review of the propriety of private tutoring expenses incurred from January 1, 2009 through May 2009. Accordingly, we reverse in part and remand for further proceedings consistent with this opinion."
Quite frequently on Special Education Advisor, we provide our readers various special education federal court rulings and guidance on special education law provided by the Office of Special Education Programs (OSEP). We do this for one very important reason: it’s not enough to be able to recite special education law you need to understand it.
We are not attorneys, but we have spent a lot of time reviewing and reading these court decisions and OSEP guidance so that we make sure we have an understanding of special education law. The minute we stop doing this is when we will close Special Education Advisor, because understanding is an ongoing process that never ends.
It is our hope that every parent and teacher joins us in this journey of understanding and it helps them become the best advocate possible for their children.
A special thanks to educate.advocate for pointing this ruling out to us.