District Wins Right to Assess Student Over Parent's Refusal to Consent

What Happened

Student is a 16-year-old eligible for special education under the category of specific learning disability. He had recently been released from a California Youth Authority (CYA) facility and moved in with Parent just before the start of the 2008–2009 school year. When Parent enrolled Student, he simultaneously sent the District a letter requesting a due process hearing, an independent educational evaluation (IEE), and copies of Student's records. The most recent IEP — written by a CYA school — was acknowledged by both the District and Parent to be insufficient for Student's current needs.

Rather than immediately conducting its own assessment, the District first agreed to fund an IEE, sending Parent a proposed assessment plan in August 2008. Parent refused to sign it. In November 2008, the District sent a new plan proposing that its own staff assess Student in areas including intellectual development, academic achievement, communication, social/behavioral functioning, adaptive behavior, and health. Parent again refused to consent, stating he would only agree if the District provided Student with a free attorney — something the law does not require. In the meantime, Student had attended his continuation high school for only eight days, rarely completed work, and spent much of class time with his head on the desk. The District filed for due process in December 2008 seeking permission to assess Student without parental consent.

What the ALJ Found

The ALJ ruled entirely in favor of the District. Although Parent raised several objections — including claims that District staff were biased, unqualified, and that multiple assessments would harm Student — no evidence was presented to support any of these claims. The ALJ noted that Parent himself acknowledged in principle that Student needed reassessment; he simply did not want District personnel to conduct it.

The ALJ found that the District had followed proper procedures: it provided Parent with written assessment plans and copies of the procedural safeguards handbook on multiple occasions. The District demonstrated that it employed qualified, credentialed staff to conduct each part of the assessment, and that it would use a variety of validated, appropriate tools. Under both federal and California law, a parent who wants their child to receive special education services cannot indefinitely refuse to allow the district to assess that child. If they do, the district has the right to seek a hearing officer's authorization to proceed. The ALJ also clarified that Parent's IEE request had already been denied in a prior case (OAH Case No. 2008090019), and that the issue of District bias was outside the scope of a special education due process hearing.

What Was Ordered

1. The District is authorized to assess Student pursuant to the November 5, 2008 assessment plan without parental consent.
2. Parent is required to make Student reasonably available for the District's assessment.

Why This Matters for Parents

1. Refusing to consent to a district assessment does not protect your child — it can backfire legally. Under federal and California law, if your child is receiving special education services, the district has the right to reassess when conditions warrant it. If you refuse, the district can go to a hearing and get an order forcing the assessment anyway — and you may lose credibility in the process.

2. An IEE is not a substitute for a district assessment, and you cannot demand one to avoid district testing. In this case, Parent tried to use an IEE request as a way to block District assessment. The law does not work that way. A district's right to conduct its own evaluation exists independently of any IEE process.

3. If you believe district staff are biased or unqualified, you must bring evidence — not just assertions. Parent claimed the District was biased and lacked qualified assessors, but presented no witnesses or documents to support this. The ALJ gave these claims no weight. If you have real concerns about who is assessing your child, document them and bring evidence to the hearing.

4. A hearing officer cannot award free legal counsel for students. Parent repeatedly asked the hearing officer to appoint a lawyer for Student. The IDEA does not provide this right. If your child needs legal representation, you must seek it through other means, such as legal aid organizations or special education advocacy groups, before the hearing.