District Prevails After Student's Chronic Absences Undermine FAPE and Speech Therapy Claims

What Happened

Student is a twelve-year-old girl with ocular albinism, nystagmus, photophobia, and a specific learning disability. Although she has average cognitive ability, she struggles with math, writing, articulation, and auditory conceptualization. At the start of the 2008-2009 school year, Parent enrolled Student in the Mare Island Technology Academy (MIT), a charter school chartered by Vallejo City Unified School District. MIT placed Student in a sixth-grade general education class with significant supports: resource room instruction, speech therapy, vision specialist services, and a long list of accommodations such as large-print materials, screen magnification software, audio books, extended time on tests, and shortened assignments.

Parent filed for due process in April 2009, arguing that the district violated Student's rights in two ways: (1) by not reducing Student's curriculum across all subjects to a third or fourth-grade level, and (2) by failing to provide the speech therapy required by Student's IEP. Parent left the hearing before it concluded, which meant the district and MIT presented their evidence without cross-examination by Parent.

What the ALJ Found

The ALJ ruled in favor of the district and MIT on both issues.

On the curriculum claim, the evidence showed that Student's abilities varied by subject — she could perform at roughly a fifth-grade level in English language arts but only at a second-to-third grade level in math. Teachers did not apply a blanket grade-level reduction; instead, each instructor individually adapted lessons and materials to wherever Student was actually functioning. The school psychologist's evaluation confirmed that Student had average cognitive ability and the capacity to learn at a rate similar to her peers. The ALJ found no evidence that a general across-the-board curriculum reduction was needed or appropriate.

On the speech therapy claim, the district's speech and language pathologist — who had 25 years of experience in the field — testified that she was always on campus and ready to provide services. Student attended speech therapy only about five times in the fall semester and not at all in the spring semester until June. The ALJ found that the district made the services available as required; Student simply did not show up.

The ALJ also noted that Student attended school on only about 50 percent of school days, was frequently suspended for behavioral issues (including fighting, theft, and aggression), rarely wore her prescribed glasses at school, and declined to use the vision aids provided to her. These factors — not any failure by the district — explained Student's low grades and academic struggles. The ALJ concluded that the IEP was appropriately designed, addressed Student's unique needs, and was fully implemented to the extent possible given Student's attendance.

What Was Ordered

1. Student's requests for relief were denied in their entirety.
2. The district and MIT were found to have prevailed on both issues.

Why This Matters for Parents

1. Attendance and participation directly affect your legal claims. When a student misses school chronically or refuses to use provided services, it becomes very difficult to argue that the district failed to deliver FAPE. The ALJ specifically found that Student's absences — not any flaw in the IEP — caused her academic difficulties. If your child is struggling, consistent attendance and use of provided supports is critical both educationally and legally.

2. "Available" services count as "provided" services under the law. The ALJ ruled that because speech therapy was offered and the therapist was ready and waiting, the district met its obligation — even though Student almost never attended. If your child is missing related services like speech therapy, document why and notify the district in writing so the record is clear about what is causing the gap.

3. A blanket demand for a lower grade-level curriculum needs supporting evidence. Parent's request that all of Student's coursework be dropped to a third or fourth-grade level was denied because there was no evidence it matched Student's actual needs. Curriculum modifications need to be grounded in assessment data and tied to specific subjects and goals — not applied uniformly across all classes.

4. Procedural missteps can seriously hurt your case. Parent missed multiple prehearing conference deadlines, failed to timely submit exhibits and a witness list, and left the hearing before it ended. These missteps limited what evidence could be considered and left the district's witnesses uncontested. If you are representing yourself in a due process hearing, follow every procedural deadline carefully — or consider seeking legal or advocate support.