March 2010 - Predetermination

H.B. v. Las Virgenes Unified School District, 52 IDELR 163 (CD Cal, 2008)(on remand), affirmed, 110 LRP 15671 (9th Cir, March 11, 2010)(unpublished).

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The story: It appears that the school district entered into a settlement agreement with the family that placed the student at a private school for a period of time with the intent of bringing him back to a public placement in the district. At the IEP/placement meeting held at the end of that time period, district staff assumed that the student would be returning to the district under the terms of the settlement agreement. Although the parents wanted the student to stay at the private school, that option was not discussed at the meeting. The district representative at the meeting began the discussion about placement by stating the need to talk about a transition from the private school to a public program.

The court found the district had "predetermined" the student's placement because it found no evidence that the team discussed "the comparative strengths and weaknesses" of the private program and the public program and did not discuss whether the private program would be capable of implementing the student's IEP. The court found that the district's determination of a public placement did not evidence "the sort of open-mindedness that is necessary to comply with the IDEA" because the district was fully aware of the parents' wishes and did not address them in any meaningful way.

The court did not find fault with the IEP itself or that the proposed placement was inappropriate, but only with the procedure defect that did not allow for meaningful parent participation. The court did not address the impact of the settlement agreement.

Implications for schools:

It is incredibly difficult to walk the fine line between "offering a proposal" and "predetermining placement", particularly in contentious situations where "meaningful participation" by anyone is difficult and consensus most likely impossible.

The court suggests that it would not have found a procedural violation if the team had clearly discussed and documented the pros and cons of both placement options and only discussed the need for a "transition plan" after determining that the placement would be changed.

This case also reinforces the practice of considering not only the placement proposed by the district, but also any placements supported by the parents, even if the parent requested placements are more restrictive than the district's proposed placement.

Given that the court had no problem with the IEP itself, this case reinforces the Rowley position that the procedures can be every bit as important as the actual services provided. A good reminder, if a difficult one to implement.