District Wins Right to Assess Student With Down Syndrome Over Parent's Objections

What Happened

Student is a child with Down Syndrome, a heart condition, asthma, and allergies who was approximately 10 years old at the time of hearing. He had previously been found eligible for special education under orthopedic impairment and speech and language impairment, and his last agreed-upon IEP was developed when he was in first grade. His most recent assessments were completed in December 2019 by his previous district. When Student enrolled in Newark Unified at the start of the 2020-2021 school year, Newark had never assessed him and had no current information about his present levels of performance. Complicating matters further, Student had significant difficulty participating in virtual instruction during the COVID-19 pandemic, did not attend in-person school during the 2021-2022 school year, and had not received any IEP services during the 2022-2023 school year by the time of hearing.

Beginning in October 2020, Newark repeatedly tried to obtain Parent's consent to conduct a comprehensive reassessment. Parent's primary objection was the use of standardized or norm-referenced testing tools, which Parent believed would unfairly highlight Student's deficits rather than capture his true abilities. Parent wanted assessors to use only alternative methods with embedded supports and collaborative planning. Newark responded to Parent's questions, offered meetings with proposed assessors, provided lists of assessment tools, and even scheduled a mediation — but Parent never consented. After more than two years of unsuccessful attempts, Newark filed for due process in February 2023 to obtain authorization to assess Student without parental consent.

What the ALJ Found

The ALJ found entirely in favor of Newark on the sole issue presented. The ALJ determined that a comprehensive reassessment was clearly warranted: Student's last evaluation was over three years old, his IEP was built on data from first grade, and the district had no current information about his needs or functioning. Triennial reassessments are required by law, and the passage of time alone — combined with Student's extended absence from school services — made updated assessment data essential for developing an appropriate IEP.

The ALJ also found that Newark's August 2022 assessment plan was legally compliant. It was written in plain English, identified each area of assessment and the qualified examiner responsible for it, explained what each area measured, and properly notified Parent that no IEP changes would occur without consent. All eight proposed assessors — including a school nurse, school psychologist, two speech-language pathologists, an occupational therapist, physical therapist, adaptive physical education teacher, and special education teacher — were found to be qualified and knowledgeable about Student's disabilities.

On the question of assessment methodology, the ALJ rejected Parent's demand to prohibit standardized tools. Once a district proves the need for assessment and meets legal requirements, parents cannot impose conditions on how assessments are conducted. The selection of specific testing instruments is left to the district's discretion. The school psychologist testified persuasively that standardized tools provide valuable baseline data, that accommodations would be made as needed during testing, and that any deviations from standard protocols would be documented in the report. The ALJ found this approach both legally sound and professionally reasonable. Newark's request to communicate with Student's treating doctors was denied, however, because the district had not demonstrated it made reasonable efforts to obtain Parent's consent for that specific purpose.

What Was Ordered

1. Newark Unified School District is authorized to reassess Student pursuant to its August 29, 2022 assessment plan, using qualified assessors and assessment tools of its choosing.
2. Parent must cooperate in making Student reasonably available for each assessment.
3. Newark's additional requests for relief — including an order allowing communication with Student's treating physicians — were denied.

Why This Matters for Parents

1. Districts have the legal right to reassess students, and parents cannot block this indefinitely. If a district proves the reassessment is needed and has followed proper procedures, it can go to a due process hearing and obtain an order to assess without your consent. Refusing to sign an assessment plan does not permanently prevent an evaluation.

2. Parents cannot dictate which assessment tools a district uses. Once a district is authorized to assess, the choice of specific tests and instruments belongs to the district. You can share concerns about particular tools, and qualified assessors should document any accommodations they make — but you cannot legally require the district to use only alternative methods or prohibit standardized testing altogether.

3. Documenting your concerns in writing still matters, even if the district prevails. Parent's ongoing written objections to standardized tools created a record that assessors would need to address. When assessments are completed, you have the right to review the reports and challenge conclusions you believe are inaccurate or incomplete.

4. Triennial reassessments exist to protect your child. The three-year reassessment requirement is designed to ensure your child's IEP reflects their current needs — not who they were years ago. Outdated assessments can lead to inappropriate goals, services, and placements. Engaging with the assessment process, even when you have concerns about methods, typically serves your child's interests better than blocking it entirely.