Milpitas Parent Wins Only on Transportation Lapse; Most FAPE Claims Denied

What Happened

Student is a seven-year-old boy eligible for special education under the categories of autism and speech-language disability. He enrolled in Milpitas Unified School District as a preschooler during the 2022-2023 school year. The district assessed Student and held an IEP meeting in March 2022, offering him services — but Parent declined consent. Because Parent refused to consent, Student did not receive any special education services that year. During the 2023-2024 school year, Parent consented to a new IEP developed in October 2023, and Student began receiving services including specialized academic instruction in a special day class and group speech therapy. At the start of the 2024-2025 school year, the district held another IEP meeting and offered an updated program including a behavior intervention plan, augmentative and alternative communication (AAC) device support, and continued special day class placement. Parent did not consent to that IEP.

Parent filed for due process in March 2025, raising more than 20 claims across three school years. She alleged the district failed to assess Student in functional behavior, speech-language, and occupational therapy; failed to offer appropriate behavior supports; failed to provide a one-to-one aide; failed to offer transportation; failed to provide a health plan; offered an inappropriate placement; failed to support communication needs; and failed to implement the IEP. Parent represented Student herself and relied primarily on her own testimony and that of Student's grandmother. The district was represented by legal counsel. The case went to hearing in October 2025, and the ALJ issued a decision in November 2025.

What the ALJ Found

The ALJ ruled in favor of the district on all but one of the more than 20 issues raised. The core reason across virtually every claim was the same: Parent did not present sufficient evidence to meet her burden of proof. Parent and Grandparent testified, but neither provided documentary evidence, and their testimony largely did not address the specific school years or issues in dispute. No independent experts, outside evaluators, or school records were introduced by Student's side. Without evidence that the district's assessments were inadequate, that Student needed services not offered, or that the placements were inappropriate, the ALJ could not find in Student's favor.

On the single issue where Student prevailed — transportation implementation during the 2024-2025 school year — the evidence was clear and undisputed. The district's own Special Education Director acknowledged that Student did not receive IEP-required transportation for the first seven school days of the school year (August 15–23, 2024). During that time, Parent was also caring for a foster child and had to drive extensively between multiple schools to ensure both children attended. The ALJ found this was a "material" failure to implement the IEP — not a minor technical issue — because it shifted the transportation burden entirely onto Parent during a period of significant hardship. The district argued Parent was not harmed because Student did not miss school, but the ALJ rejected that reasoning.

Notably, the ALJ also declined to consider claims Parent raised for the first time in her written closing brief, including allegations about a unilateral school transfer, retaliation, negligence, and violations of Section 504, the ADA, and the McKinney-Vento Act. OAH does not have jurisdiction over those claims, and issues not raised in the original complaint cannot be added at the end of a hearing.

What Was Ordered

1. Within 30 days of the decision, Milpitas Unified School District must reimburse Parent for 37.8 miles of driving (2.7 miles each way, 7 days, round trips) at the current IRS mileage reimbursement rate.
2. The district may not require Parent to submit any additional documentation to receive this reimbursement.
3. All other requests for relief — including placement at a non-public school, a full-time one-to-one aide, third-party transportation of Parent's choosing, and reimbursement for additional costs — were denied.

Why This Matters for Parents

1. Evidence is everything in a due process hearing. Parent raised more than 20 claims but prevailed on only one — the one where the district itself admitted to a failure. Every other claim failed because Parent did not introduce documents, outside evaluations, or expert testimony. If you believe your child's IEP is inadequate, you need records, evaluations, and witnesses who can speak to what your child specifically needed and didn't receive.

2. When you refuse to consent to an IEP, the district generally has no obligation to provide those services. In this case, Parent's refusal to consent to the initial 2022 IEP meant Student received no services that year — and the district could not be held responsible for failing to deliver a program Parent declined. Similarly, refusing consent to the 2024 IEP meant the behavior plan and AAC device the district offered could not be implemented.

3. A district's failure to provide IEP-required transportation can be a FAPE violation — even if the child doesn't miss school. The ALJ found that forcing a parent to personally transport a child when the IEP requires bussing is a material implementation failure, especially when doing so causes real hardship. Keep records of any days the bus doesn't show up and what you had to do as a result.

4. Raise all of your issues before the hearing, not in your closing brief. The ALJ refused to consider claims Parent raised for the first time in her written closing argument. If you are filing for due process, list every concern in your original complaint — you generally cannot add new issues later without the other party's agreement.