District Wins Right to Assess Student Over Guardian's Refusal

What Happened

Student is a 16-year-old attending Berkeley High School who has never been found eligible for special education. He lives with his grandmother, who holds power of attorney over his educational decisions. Student had been assessed for special education twice before — once by Oakland Unified School District in 2003 and once by Berkeley Unified in early 2004 — and was not found eligible either time. For the 2004–2005 school year, the District agreed to fund an independent educational evaluation (IEE) conducted by a licensed psychologist. That evaluator diagnosed Student with a Major Depressive Episode and recommended that the IEP team find him eligible for special education under the category of emotional disturbance (ED). However, the IEE was incomplete: the guardian had denied the evaluator permission to exchange information with the school, meaning the evaluator could not review Student's records, observe him at school, or interview his teachers.

Because the IEE lacked critical school-based information, the IEP team determined it did not have enough to make an eligibility decision and proposed conducting its own reassessment. The District offered assessment plans to the guardian on four separate occasions — in November 2005, January 2006, January 2006 again, and March 2006 — but the guardian refused to sign any of them. By the end of tenth grade, Student was attending school only part-time and receiving failing grades in all three of his classes. The District filed for due process to obtain the legal authority to assess Student without the guardian's consent.

What the ALJ Found

The ALJ ruled entirely in the District's favor. The central legal question was whether the District could proceed with a reassessment over the guardian's objection. Under California and federal law, a school district can override a parent's or guardian's refusal to consent to assessment by proving at a due process hearing that (1) an appropriate written assessment plan was provided and refused, and (2) that conditions warrant reassessment. The ALJ found the District met both requirements.

The independent evaluator the family had requested — and the District had funded — explicitly acknowledged her assessment was incomplete because the guardian had blocked her access to school information. The ALJ found this created a situation where the IEP team genuinely could not determine whether Student was eligible for special education, and that conditions therefore warranted the District conducting its own assessment. The proposed reassessment was designed not to repeat what Dr. Jacques had already done, but to fill the gaps she identified — particularly how Student's depression affected his educational performance. The guardian's claim that the assessment would "over-assess" Student was not supported by the evidence. The ALJ also noted that courts have consistently held that parents who want their child to receive special education services cannot simultaneously block the assessments needed to determine eligibility.

What Was Ordered

1. The District is authorized to assess Student in accordance with the reassessment plans dated November 9, 2005; January 17, 2006; January 27, 2006; and March 20, 2006.
2. The District must notify the guardian in writing of the date and location of the assessment at least 15 calendar days in advance.
3. The guardian must make Student reasonably available for the reassessment.

Why This Matters for Parents

1. Requesting an IEE does not eliminate the district's right to conduct its own assessment. When the District disagreed with the IEE's conclusions and found it incomplete, it retained the legal authority to assess Student independently. An IEE is one piece of the puzzle, not the final word.

2. Blocking the evaluator's access to school records undermined the family's own case. The independent evaluator the family requested could not finish a complete assessment because the guardian denied her access to school information. This created the very gap in information that justified the District's reassessment request. If you request an IEE, giving the evaluator full access to records and school staff produces a stronger, more defensible report.

3. Refusing all assessment plans can result in a hearing — and the district may win. California law gives districts a legal pathway to assess a student without parental consent if they can show the assessment is warranted and the plan was appropriate. Repeatedly refusing assessment plans does not permanently block evaluation; it may simply delay it and force a hearing.

4. If you want your child to receive special education services, you must allow the district to evaluate them. Federal courts have been clear on this point: a parent or guardian cannot demand special education for their child while also refusing the assessments needed to determine eligibility. These two positions are legally incompatible.