Duty to provide FAPE does not end when parents enroll student in out-of-district private school, says Ninth Circuit

November 09, 2020

Q: When does a school district’s duty to provide FAPE end?

A: The Ninth Circuit made clear it does not end when a student gets enrolled in an out of district private school.

Why are we caring about the Ninth Circuit again? Because Montana is in the Ninth Circuit and rulings from the Ninth Circuit inform decisions made in Montana courts.

Ruling: Because a California district knew that the parents of a parochial school student with a disability wanted their daughter to return to public school, it erred in conditioning their request for an updated IEP on the student’s reenrollment. The 9th U.S. Circuit Court of Appeals affirmed a District Court ruling at 74 IDELR 231 that required the district to reimburse the parents for the student’s private placement.

Background: A California district made an expensive mistake when it refused to develop a new IEP for a middle schooler with a disability unless she left her parochial school and reenrolled in the public school system.

• The 9th Circuit held that the district’s failure to make FAPE available amounted to an IDEA violation and entitled the parents to recover the cost of the student’s private placement.
• The three-judge panel observed that a district must make FAPE available to all resident students with disabilities, even those enrolled in out-of-district private schools, upon the parent’s request.
• Because the student still lived in the district, the panel explained, the district remained responsible for reevaluating her and providing special education services. The panel recognized that the district would not have to make a written offer of FAPE if the parents clearly stated their intent to continue the student’s private placement.
  • However, it rejected the districts’ claim that the parents had no interest in a public school program. “In fact, [the parents’] letters to [the district] in 2015 and 2016 indicate that they are still interested in a public-school placement for [the student], and [the district] was required to provide an offer of FAPE,” the panel wrote in an unpublished decision. The panel also held that the parochial school placement was appropriate, and that the parents’ failure to provide 10 days’ notice of that placement did not warrant a reduction of their reimbursement award.

What you need to know: The question is not when but IF a district’s obligation to provide FAPE ends. A district’s obligation to offer FAPE to a resident student with a disability does not end when the parents enroll the student in an out-of-district private school. This means that the district must convene an IEP meeting if it has any reason to believe the parents are interested in a public program. Here, the parents sent the district three letters requesting an IEP. Had the district convened an IEP meeting, it might have avoided paying for the student’s parochial school placement.

What is the name of the case and where can you read it? The name of the case is Bellflower Unified Sch. Dist. v. Lua ex rel. K.L. U.S. Court of Appeals, Ninth Circuit 10/26/20. Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.