The 9th Circuit decision in M.C. came just 5 days after the landmark U.S. Supreme Court unanimous decision to reject the low bar for students with disabilities in Endrew F. v. Douglas County School District. The issue in Endrew F. was what kind of “educational benefit’ does the IDEA require public schools to provide to students with disabilities? Chief Justice John G. Roberts Jr. wrote: “When all is said, and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.” “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
And it seems that 9th Circuit was waiting for the decision in Endrew F. as anxiously as we were, when they issued their decision in M.C. v. Antelope Valley Union High School District, which cited to Endrew F. and touched on several other significant special education issues.
Most IDEA disputes over parent participation focus on discussions during the IEP. The M.C. case makes it clear that a parent’s right to meaningful participation does not end when the document is signed. The 9th Circuit said the IDEA is just as concerned with a parents’ right to monitor and enforce the provision of special education services the student is supposed to receive. This case centers on a procedural violation that deprived parent of the right monitor the implementation of her son’s services, and therefore, the 9th Circuit held that the procedural error amounted to a denial of FAPE. The 9th Circuit was unclear as to whether the procedural violation had resulted in educational harm to the student, however, because the Parent had been forced to file a DP complaint and incur legal fees to learn which services the student was receiving, the court stated that the legal fees amounted to substantive harm and qualified as denial of FAPE. In regards to the Parents claim that the SD had failed to develop measurable annual goals in all areas of need, the District Court cited Rowley, “that a District has no obligation to maximize a student’s potential.” However, the 9th Circuit pointed out that the Supreme Court had since held in Endrew F. “that an IEP must be reasonably calculated to allow a student to make progress appropriate in light of his circumstances.” It reversed and remanded the case for determination of whether the IEP satisfied the Endrew F. standard.
Reviewing the Decision
M.C.’s parents signed his IEP, although they did not agree the IEP provided their son with a FAPE. His parents challenged the IEP by filing for a Due Process (DP) Hearing. The Administrative Law Judge (ALJ) decided that the School District (SD) prevailed on all issues. The case was taken to U.S. District Court, where the District Court Judge went along with the ALJ’s decision because the ALJ “questioned witnesses during a three day hearing’, and “wrote a 21-page opinion that reviewed witness qualifications and culled relevant details form the record” The 9th Circuit stated that in this case, the ALJ was neither thorough nor careful, as they didn’t address all of the issues and disregarded some of the evidence. Therefore, they found that the District Court erred in deferring to the ALJ’s findings.
The 9th Circuit explained the history behind one of the Parent’s claims; the IEP document included a SD offer of 240 minutes per month of TVI services. The Parent’s DP complaint stated that, among other things, the TVI services were inadequate to meet M.C.’s needs. On the first day of the hearing, the Parent learned that the SD had unilaterally changed the IEP document from 240 minutes per month, to 240 minutes per week, because, according to the SD, they realized their mistake a week after the IEP, so they amended it. However, the SD did not notify Parents of the change. Parent’s claimed that the SD’s failure to accurately document the offer of services denied M.C. FAPE by precluding Parents from meaningfully participating in the IEP process.
The District Court found that Parents waived this issue during a procedural step that takes place before the DP Hearing, (in which the ALJ ‘restates’ the party’s issues to stream line the case they will address at hearing) so, the ALJ’s restatement of the issues omitted the adequacy of the services issue. The Parents did not know about the unilateral change to the IEP document until after the ALJ had restated the issues so they could not have raised that as a procedural violation. The District Court understood the Parent’s difficult position, but… still found they could not raise the issue.
But, the 9th Circuit issued a warning against ALJ’s reframing of the issues with this statement: “We question the wisdom of such a procedure…(meaning the restatement by the ALJ) A party bringing a due process complaint is entitled to frame the issues it wishes to present and should not be put in the difficult position of contradicting the presiding official who will soon be the trier of fact. In such circumstances, failure to object will not be deemed a waiver of any claim fairly encompassed in the complaint.” The 9th Circuit further stated, “While we haven’t previously recognized this practice in IDEA cases, it has often been applied in a variety of other agency adjudications, (then named, an IRS case, a Patent case, and a Department of Labor case) we see no reason IDEA cases should be treated differently.
The District judge agreed with the ALJ finding that the SD’s amendment to the IEP document merely corrected an unintentional error. The 9th Circuit said they failed to see how that can be so. An IEP is a contract. If the SD did not have Parent consent to amend the IEP, they have to re-open the IEP process and propose a different IEP. The unilateral amendment is a per se violation of the IDEA because it vitiates the parents right to participate at every step of the IEP drafting process. The 9th Circuit goes into great detail on this issue, finding two procedural violations, and gives the following direction: On remand, the district court shall determine whether this course of conduct was a deliberate attempt to mislead Parent or mere bungling on the part of the SD and its lawyers. (This is the greatest thing! The SD will have to go in front of the court and argue whether they were liars or idiots!)
When a student requires “a particular device or service” California law requires that the IEP “include a statement to that effect.” The 9th Circuit decision held lengthy discussion regarding the lack of specificity the SD gave regarding the AT devices being offered in the IEP and how, that gave Parent no way of confirming whether they were actually being provided. The district judge found this procedural violation didn’t seriously infringe on Parent opportunity to participate in the IEP formulation process. However, the 9th Circuit stated that the parents must be able to participate in both the formulation and enforcement of the IEP. Parents must be able to use the IEP to monitor and enforce the services that their child is to receive, when the Parent can’t FAPE has been denied, whether or not Parent had ample opportunity to participate in the formulation of the IEP. The fact that Parent had to incur unnecessary legal fees is a form of prejudice that denies parent and student an educational benefit.
In this case it was the procedural violation of failing to specify the services – in kind or duration – that made it impossible for Parents to be able assess whether the services offered or provided to student were substantively reasonable. The burden is shifted to the SD to show the services they claim the student received, were reasonable. That issue was remanded for such a showing.
The case concluded with the discussion of the District court’s application of the Rowley standard that, by, “an ‘appropriate’ education, it is clear that [Congress] did not mean a potential-maximizing education,” and, the 9th Circuit states, “Recently, the Supreme Court clarified Rowley and provided a more precise standard for evaluating whether a school district has complied substantively with the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of a child’s circumstances.” Endrew F. “In other words, the school must implement an IEP that is reasonably calculated to remediate and, if appropriate, accommodate the child’s disabilities so that the child can “make progress in the general education curriculum,” (id.) commensurate with his non-disabled peers, taking into account the child’s potential.” (I give them a standing ovation in my mind every time I read that!)
The case was then remanded so the District Court could apply the new guidance from the Supreme Court, Endrew F.
These issues are of utmost importance to students with disabilities and their families and while the Supreme Court decision was eagerly awaited at A2Z educational advocates for many reasons, of course most importantly was, the effect of this decision in our work to protect the legal and civil rights of students with disabilities and their families. We commended the Supreme Court’s unanimous rejection of the lower court’s ruling that schools only need to provide a non-trivial benefit, we are thrilled that our 9th Circuit clearly agreed, reiterated Endrew F.’s holding and further elaborated in their decision that our children and families deserve better.