Summary:
Returning to in-person instruction created unique challenges for the entire educational community. In San Bernardino City Unified School District (Case No. 2023050849) a California Administrative Law Judge (ALJ) found that a district denied FAPE to a student with autism and speech impairment by failing to address the student’s refusal to attend school in person for two years after returning to in-person instruction. The judge ordered extensive compensatory education and staff training.
Facts:
Student attended school in San Bernardino City Unified School District and last attended school in the seventh grade, two years prior to the filing of the Due Process hearing request. When in-person instruction resumed after the pandemic, Student refused to return to in-person learning for two years due to heightened social anxiety and a medical diagnosis of “School Refusal Disorder.”
Initially, the District proposed virtual learning options, but those were deemed inappropriate for Student as the student’s former teachers felt strongly that Student would not excel or meet his IEP goals virtually. The teachers all agreed that Student required in-person instruction. Student struggled with paying attention in class and work completion in the online learning setting. He hardly turned on his camera and limited his participation to the online chat groups during “zoom” classes. Student’s parents requested a program allowing student to participate virtually in the student’s regular classroom from home with aide support. The District rejected parents’ proposed request due to privacy concerns.
The District continued to offer only in-person instruction and assessments at school, while the Student continued to refuse to attend school. The District did not (1) revise its IEP to address Student’s attendance issues related to his disability or (2) initiate Due Process to implement the proposed IEP without parental consent.
Parent refused to consent to the District’s IEP. Student did not attend school for two years, which would have been the student’s eighth and ninth grade school years, however, Student remained enrolled as student in the District.
Discussion:
The IDEA requires local educational agencies (LEAs) to offer FAPE tailored to each student’s unique needs. (20 U.S.C. Section 1414(d).) Where a student cannot access their education due to their disability, the LEA must take appropriate steps to address those barriers. (34 CFR 300.324(a)(2)(i).) The IDEA also requires LEAs to file a due process complaint against a parent when a parent will not consent to a proposed IEP component that they have previously consented to or if the LEA determines that the IEP component is necessary to provide the Student with a FAPE. (Cal. Educ. Code § 56346(f).)
In addition, California law requires every person between the ages of 6 and 18 to attend the full school day and be on time. (Cal. Educ. Code § 48200.) A School Attendance Review Board (S.A.R.B.) is an interagency group authorized by California law (Cal. Educ. Code § 48320, et seq.) that assists families experiencing school truancy, attendance, and/or behavioral problems to find solutions to improve attendance by providing resources. The goal of S.A.R.B. is to support families to comply with school attendance laws.
Here, the District failed to seek support from S.A.R.B. in accessing resources from third party agencies which could have included: student and family services, student welfare and attendance personnel, community representatives and/or community-based organizations to support Student’s ongoing refusal and fear to attend school post the COVID-19 pandemic. Community organizations such as “big-brother” programs, Tutors for America, mental health services, or other supports that encourage friendships and healthy relationship could have made a difference in encouraging Student to attend in person classes.
In addition to S.A.R.B., District had two options to address and remedy Student’s ongoing refusal and fear to attend in person school. First, the District could have developed an IEP that specifically addressed Student’s ongoing fear and refusal to attend in person instruction, including goals and services that addressed these concerns and measure Student’s progress. Second, the District could have initiated and filed its’ own Due Process complaint against Student seeking an order to implement their proposed IEP which included in-person instruction and assessments at school, without parental consent.
The IDEA requires LEAs to take appropriate steps to address a Student’s barriers to accessing their education due to their disability, and state law requires that LEAs file due process to implement an IEP over a parent’s objection when it is necessary for the student to receive FAPE. Student remained enrolled in the District as a student, and it was the District’s responsibility to ensure Student was receiving an education tailored to his unique needs.
Conclusion:
The judge found that the District denied Student a FAPE by failing to appropriately address Student’s ongoing refusal to attend school in-person and how Student’s disability affected his right to FAPE. As a result, the judge ordered extensive compensatory education and staff training. The District was also ordered to fund an independent assistive technology evaluation and convene an IEP meeting to review and consider placement options, including retention and nonpublic school placement.
Since District had not performed any in-person assessments of Student since December of 2019, OAH arranged for an independent and impartial psychoeducational assessment of Student to be conducted to inform the administrative law judge and the parties of Student’s needs and make recommendations for Student’s compensatory education to be specifically tailored to his unique needs and circumstances.
The District may have avoided this result by (1) using S.A.R.B.’s resources to encourage Student to attend in-person instruction, (2) conducting in person assessments away from the school campus, or (3) initiating and filing a due process complaint against Student to implement its’ proposed IEP without parental consent. The IDEA requires LEAs to offer FAPE tailored to each student’s unique needs, and where a student cannot access their education because of their disability, it is the LEAs responsibility to initiate the appropriate steps to address those barriers for the student to have a FAPE.
For further assistance, please contact Cristina A. Quinonez at quinonez@estattorneys.com.
