This guest post was authored by Heather R. Coffman 

child holding lunch.JPGIn a recently published decision, Anchorage School District v. M.P., (9th Cir. 2012) —F.3d — [2012 WL 2927758], the Ninth Circuit Court of Appeals sent a cool message to school districts struggling to provide special education services to children with hyper-litigious parents: Parents’ poor behavior does not excuse the districts from providing annual Individualized Education Programs (“IEPs”) as required by the Individuals with Disabilities in Education Act (“IDEA”).  The court further held that despite a “stay put” order and parents’ refusal to participate in the process, a district failed to provide a Free Appropriate Public Education (“FAPE”) when it provided services to a third grade child pursuant to his most recently approved IEP, finalized when he was entering second grade. 

Zealous Advocates Turn Hyper-Litigious, Abandon the Collaborative Process 

In 2006, M.P. was a second grade student receiving special education and related services pursuant to an IEP to which his parents had consented.  M.P.’s parents had a history of filing due process complaints.  As their approach became more litigious, rather than collaborative, they refused to meet with the district to update M.P.’s IEP for the 2007-2008 year.  Instead, they filed yet another administrative complaint, which triggered a “stay put” order for M.P.’s writing instruction plan from the 2006 IEP.  Faced with parents who refused to participate in the IEP process, and a “stay put” order as to at least one provision in that IEP, the district froze all efforts to update the IEP, pending the outcome of related due process proceedings.  

Meanwhile, time marched on. M.P. completed the 2007-2008 third grade school year, and transferred schools (same district).  By agreement, he repeated the third grade curriculum at his new school for the 2008-2009 year.  However, M.P.’s parents refused to meet with the staff at his new school.  Left without other guidance, staff relied on the last IEP from 2006, in designing and implementing M.P.’s educational plan for his 2008-2009 school year as a third grader.  The school used third grade curriculum materials.  M.P.’s parents filed another due process complaint, alleging that M.P. did not receive educational benefits when the district applied his 2006 second grade IEP in 2008 as a third grade student.   

Ninth Circuit: Districts Should Keep Trying or File Their Own Complaint 

The Ninth Circuit held that even where, as here, the student’s parents thwarted the IEP’s intended collaborative process, the school district bore the burden to review and revise M.P.’s IEP on an annual basis.  Given the parents’ refusal in this case to participate in an IEP meeting to update the expired 2006 Program, the Court would have had the district either keep trying to develop a mutually agreeable IEP, or file its own administrative complaint for approval of a district-proposed IEP.  

Moreover, the court found that the “stay put” order for M.P.’s writing development did not allow, let alone force, the district to place all revisions to the IEP on hold pending the outcome of the litigation. The court held that “updating an eligible student’s present level of academic achievement and functional performance and establishing corresponding goals and objectives does not qualify as a change to a student’s educational placement, so long as such revisions do not involve changes to the academic setting in which instruction is provided or constitute significant changes in the student’s educational program.”  

The Court then opted to make the factual determination that the school district denied the student a FAPE because “an IEP developed for a second grader is not reasonably calculated to ensure educational benefits to that student in his third grade year.” 

Finally, the Court found the District Court abused its discretion in denying the parents reimbursement for the private tutoring they provided to their son.  

Where Do We Go From Here? 

If read expansively, this decision could place an onerous burden on school districts when parents refuse to participate in good faith in the IEP process. Districts are faced with the unpalatable choice of engaging in drawn-out attempts to discern and address parents’ demands (which may be unreasonable and/or ill advised), or of initiating  due process–both of which are  costly and time-intensive processes that divert precious resources from actually educating and supporting the child at issue. 

Ultimately, this case should serve as a cautionary tale for districts, but should not be treated as a clear statement of law applicable in all settings.  Case law remains unsettled regarding the impact of parent conduct on school districts’ liability in providing special education services.  However, the Ninth Circuit went out of its way to publish this decision (which was initially a memorandum decision with limited precedential value).  The take-away, then, as in most of these thorny situations, is two fold: 

  1. Always remember that the child is the client, not the parent, and do your best to proceed accordingly; 
  2. When parents impede your ability to serve the child, proceed with extreme caution, and seek legal counsel as early in the process as possible, to prepare the best plan of action under admittedly difficult circumstances.