District Wins Right to Place Student at Nonpublic School and Assess Without Consent

What Happened

Student was a 13-year-old eighth grader eligible for special education under the category of emotional disturbance. He had a long history of escalating behavioral challenges, including verbal aggression toward staff and peers, physical altercations, classroom disruptions, and refusal to follow adult directives. By the 2017–2018 school year, Student was failing all his classes and had accumulated dozens of unverified absences. Despite being placed first in general education with resource specialist support, and then in a special day class for four periods a day, his behavior continued to worsen. Student also refused to attend individual counseling that was written into his IEP, and refused to participate in assessments the District had been trying to complete since April 2017.

The District filed for due process in December 2017 after exhausting less restrictive options. The two central questions were: (1) whether the District's December 11, 2017 IEP — which proposed placing Student at a nonpublic school — offered a free appropriate public education (FAPE) in the least restrictive environment; and (2) whether the District could proceed with previously consented-to assessments without Parent's renewed consent, given that Student had refused to participate. Parent did not attend the hearing, did not file a written closing argument, and was not represented by counsel at the time of the hearing.

What the ALJ Found

The ALJ ruled in the District's favor on both issues. On the question of the IEP and placement, the ALJ found that the District had followed proper procedures — Parent was present at the IEP meeting, received her procedural safeguards, and had a meaningful opportunity to participate. The IEP itself was comprehensive: it addressed Student's present levels of performance, included six measurable annual goals in math, writing, attendance, responsibility, behavior, and counseling, and offered 314 minutes per day of specialized academic instruction plus 600 minutes per year of intensive Tier II counseling.

On placement, the ALJ applied the Ninth Circuit's four-factor test and concluded that a regular classroom — even with supports — was not working. Student had already benefited from a prior nonpublic school placement in elementary school, and the District had tried and exhausted general education and special day class options without success. The smaller class sizes, embedded behavior supports, and on-site counselors at the proposed nonpublic school were found to be the least restrictive appropriate setting given Student's needs. Notably, the ALJ also found that a typographical error in the IEP stating no transportation would be provided did not defeat the offer, because District confirmed transportation was always included with nonpublic school placements.

On the assessment issue, the ALJ found that the April 2017 and August 2017 assessment plans were legally proper, the proposed assessors were qualified, and the assessments were clearly warranted by Student's declining behavior and academic performance. Because Parent had already consented to both plans but Student refused to participate, the ALJ concluded that Parent's consent had been rendered meaningless by Student's refusal — and authorized the District to proceed with assessments without additional parental consent.

What Was Ordered

1. The District may implement the December 11, 2017 IEP — including nonpublic school placement — without parental consent, provided Student seeks to receive special education and related services from the District. Transportation to the nonpublic school must be included.
2. The District may assess Student pursuant to the April 11, 2017 and August 15, 2017 assessment plans without parental consent, provided Student seeks to receive special education and related services from the District.

Why This Matters for Parents

1. Withholding your child from assessments can backfire legally. Parent had originally consented to assessments in both April and August 2017, but Student was never made available. The ALJ found this made Parent's consent meaningless — and gave the District permission to assess without going back to Parent. If you have concerns about an assessment plan, address them in writing before signing, rather than signing and then keeping your child away.

2. A district can file for due process too — not just parents. Many parents don't realize that school districts can initiate due process hearings. In this case, the District filed in order to get legal authorization to implement an IEP and conduct assessments over a parent's non-cooperation. Understanding this can help you avoid situations where your inaction gives a district grounds to seek a hearing.

3. Procedural errors don't automatically invalidate an IEP. The IEP contained a typographical error stating no transportation would be provided. However, the ALJ did not throw out the IEP because of this mistake — District staff testified it was an oversight and transportation is standard with nonpublic school placements. Minor errors matter less than whether the overall offer is appropriate and clearly communicated.

4. Prior success at a more restrictive placement can support returning to one. The District pointed to Student's documented improvement during a prior nonpublic school placement as evidence that the proposed placement was likely to work again. If your child previously made progress in a more structured setting, that history can cut both ways in placement disputes.