IEP Not Required For Students Unilaterally Placed In Private Schools Unless Specifically Requested by Parents According to Ninth Circuit


On December 30, 2021, the Ninth Circuit Court of Appeals ruled in favor of the school district in Capistrano School District v. S.W. 2021 WL 6141122, where the Parents unilaterally placed their child in a private school when they grew dissatisfied with the public school’s IEP for the Student. The Court held for the District on all three issues, finding the IEP’s goals were sufficient, that the District was not under an obligation to file for due process if it determined the agreed-upon portions of the IEP constituted FAPE, and, critically, that the District was not obligated to prepare an IEP for the student because it was not specifically requested by the parents, even though the parents were seeking tuition reimbursement from the District.


Student was enrolled at the District for kindergarten and first grade. Parents were dissatisfied with Student’s kindergarten IEP, and at her first grade annual IEP meeting, expressed a desire for Student to receive more intensive support. The District proposed new goals and accommodations that did not meet the Parents’ requests. Parents consented to components of the IEP, but not the whole IEP. Parents filed a due process complaint and withdrew Student from public school in winter of the Student’s first grade school year. Student continued to attend private school in second grade, and Parents filed a new due process complaint requesting reimbursement for Student’s private school costs. The District declined the request, proposed an IEP meeting, and filed its own due process complaint seeking to assess Student for special education.


The Court acknowledged three remaining legal issues on appeal from the District Court and Office of Administrative Hearings: 1) whether the District’s IEP goals were sufficiently adequate to constitute FAPE given alleged deficiencies in responding to parent concerns and data collection, 2) whether the District was obligated to file for due process in Student’s first grade year when Parents only partially consented to the District’s IEP, and 3) whether the District was obligated to prepare an IEP for Student’s second grade year given Parents had submitted a request for reimbursement. After holding in favor of the District that the IEP goals were sufficient, the Court established significant precedent for LEAs in its jurisdiction in holding in favor of the District on the second and third issues.

Specifically, the Court held that the District was not required to file for due process despite Parents’ partial consent of Student’s first grade IEP because, in the District’s judgment, the consented portions constituted FAPE for the Student. The Court reviewed the plain text of Education Code § 56346(e) and prior cases analyzing the subsection, finding that the District was only under an obligation to file for due process where “the school district determines” the unconsented portion was necessary to provide FAPE. If the consented portions of the IEP are sufficient to provide FAPE, the District was not required to file for due process. The Court made it clear that the District had ample discretion to come to this conclusion.

The Court also held that the District was not obligated to continue to develop IEPs for Student through second grade even though there was a pending FAPE dispute and the Parents had requested reimbursement for private school costs. The Court reviewed the plain language of the IDEA at § 1414(d)(2)(A), which stated that, generally, LEAs must prepare IEPs for students in the LEA’s jurisdiction, with the exception of students in private schools, who are entitled to a services plan. The Court did not disturb the longstanding rule that parents with students in private schools are only entitled to an IEP when they specifically request an IEP. The Court simply found no justification to require LEAs to develop an IEP when there is nothing outside of a request for reimbursement. The Court reviewed a case from the First Circuit Court of Appeals where this rule was established, Town of Burlington v. Department of Education (1st Cir. 1984) 736 F.2d 773, and disagreed with its holding, finding no statutory basis for the rule.


This ruling lightens the burden on LEAs. First, while LEAs must still file for due process against a parent in certain circumstances, this case makes clear the requirement does not extend to all unsigned IEPs. Rather, the obligation only arises if the LEA determines that the unsigned components of the IEP are required to provide Student with FAPE.

Secondly, LEAs do not have to develop IEPs for students in private schools unless the parents specifically request an IEP. A request for reimbursement does not trigger this requirement on its own for LEAs in the Ninth Circuit’s jurisdiction. This is a welcome rule for LEAs because writing an IEP for a student who has not been attending the LEA presents significant challenges from both a logistical and assessment standpoint.