School District Predetermined Placement for Student with Autism

Kirsch-Goodwin & Kirsch successfully represented a special education student with autism at a due process hearing and secured private placement due to the school district’s predetermination of the student’s placement, and that the placement was not appropriate to meet the student’s unique educational needs.  In Deer Valley Unified Sch. Dist., 111 LRP 71612 (SEA AZ 2011), an Administrative Law Judge found that an Arizona school district predetermined the placement of a student with autism and that the proposed school did not address the student's unique needs.  Because the district denied the student a free and appropriate public education (“FAPE”), both procedurally and substantively, it was directed to reimburse the student's parent for private school tuition and to continue paying tuition for the student's attendance at the private school. 

Implications of this decision:  School districts and charter schools in Arizona should ensure that the IEP team makes initial placement decisions, and not the administration.  Parents must be included in the IEP team decisions.  Parents are members of the IEP team.  The administration of a school district or charger school may not make initial placement decisions that are merely reviewed by the IEP team.  A school district or charter school that has its administration make placement decisions denies parents their due process rights and contravenes the Individual with Disabilities Act (“IDEA”) amounts to predetermination.  Here, the school district denied FAPE to a student with autism when it issued prior written notices (“PWN”) proposing a special school and convened an IEP team to reconsider the placement only after the student's parent rejected it.

Summary:  An Arizona school district denied FAPE to a student with autism when it predetermined an inappropriate placement for him.  After the student was comprehensively evaluated, the district convened a team meeting to develop an IEP for his upcoming school year.  The student's parent presented information from two special schools she wanted the district to consider as potential placement options.

The district subsequently issued two PWNs informing the parent that it was placing the student at a third special school that had not been discussed at prior meetings.  Because this school was populated by peers who functioned on a lower level than her child, the parent rejected the placement as inappropriate and not the LRE.  The district convened another meeting for team members to review the proposed placement.  The team maintained the district's proposed placement as determined by its administration.
The parent filed for due process alleging a denial of FAPE.  The ALJ explained that providing FAPE is a two-fold process inclusive of procedural and substantive obligations.  To comply with procedural obligations, a district must permit parents to participate in making educational decisions concerning their child and must also provide PWN when proposing any changes to the child's IEP.
The ALJ noted that the district did not include the parent in making the initial placement decision. Instead, it issued a PWN imposing a placement for the student that would take effect unless the parent objected.   The parent objected.  The district convened to reconsider the proposed placement. The ALJ stated, "One wonders what Respondent School District would think if, at the beginning of a hearing, the Administrative Law Judge announced that he has reviewed the exhibits and made a decision for the parent, but will keep an open mind and reconsider his decision upon presentation of further evidence at the hearing."

The ALJ also explained that a district has a substantive obligation to provide a student with an IEP that is reasonably calculated to provide the student with an educational benefit and a placement that facilitates the achievement of goals.  The student's IEP contained goals for communication and social development that required him to have interaction with peers at or above his functioning level.  But because the district's proposed placement was populated by students with lower communication skills than those of the student, the IEP goals could not be accomplished through the proposed placement. Therefore, the district engaged in both procedural and substantive violations of the IDEA.