Ninth Circuit Upholds District’s Unilateral Change Of Location Of IEP Services, Emphasizes Importance Of Academic Needs In LRE Analysis

September 2019
Number 41

On April 24, 2019, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) issued a decision inR.M. v. Gilbert Unified School District, No. 17-16722 (9th Cir. Apr. 24, 2019), in which the parents of a special education student (Plaintiffs) challenged the Gilbert Unified School District’s (District) decisions to: (1) increase the student’s special education instruction by 20 minutes per day; and (2) unilaterally move the location of the student’s services from his neighborhood school to a different, but substantially similar, program at a school that was not his neighborhood school.

In the underlying matter, the District and Plaintiffs were in disagreement on at least two key aspects of the student’s IEP, which were addressed in a January 22, 2018 prior written notice (PWN) issued by the District. The PWN
included two proposals: (1) to increase the student’s special education instruction by 20 minutes per day; and (2) to change the location of the student’s special education services from Ashland Ranch to the Academic SCILLS Program[1] at Pioneer Elementary (Academic SCILLS). Plaintiffs argued that the District’s proposed actions would not provide the student with a free appropriate public education (FAPE) in the least restrictive environment (LRE).

As to the increased special education support, which resulted in a reduction in the amount of time the student would spend in a general education classroom, the Ninth Circuit affirmed the lower court’s (District Court) analysis, relying on the factors expressed inSacramento City Unified School District v. Rachel H., 14 F.3d 1398 (9th Cir. 1994), and held that the District appropriately increased the student’s special education time. Based in part on its previous decision in Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1184 (9th Cir. 2016), the Ninth Circuit reaffirmed that, even when other Rachel H. factors (i.e., the non-academic benefits of such placement, the effect the student has on the teacher and children in the regular class, and the costs of mainstreaming the student) weigh in favor of mainstreaming a student, the educational program is still based primarily on the student’s academic needs. In other words, when a student will not gain benefit in a typical classroom and his or her academic needs weigh most heavily against a mainstream environment, a smaller classroom meets the FAPE standard.

With respect to the District’s act in unilaterally moving the student from Ashland Ranch to Academic SCILLS, the Ninth Circuit rejected the Plaintiffs’ argument that this issue too should be analyzed under the LRE factors set forth in Rachel H. The Ninth Circuit held instead that the Rachel H. factors only apply when and where there is a proposal to change a student’s placement, as opposed to simply changing the location where a student will be receiving his or her IEP services. Interestingly, the District Court addressed this issue by applying a four-factor test, consistent with guidance from the Office of Special Education Program (OSEP) in “Letter to Fisher,” 21 IDELR 992 (OSEP 1994), in which OSEP urged consideration of the following in order to determine whether a change to placement or location has occurred: (1) whether the educational program set out in the student’s IEP has been revised; (2) whether the child will be able to be educated with non-disabled children to the same extent; (3) whether the child will have the same opportunities to participate in non-academic and extracurricular services; and (4) whether the new placement option is the same option on the same continuum of alternative placements. The Ninth Circuit affirmed the District Court’s determination that, when balanced, these factors indicated that student’s move to Academic SCILLS was a change oflocation only, and not a change in placement.

As to whether the Academic SCILLS class constituted FAPE in the LRE for Student, the Ninth Circuit affirmed the District Court’s findings that it did. For starters, the student’s IEP required that the District provide him with services in a small-group setting to allow for the development of social and behavioral skills with peers working on similar academic and social levels. There were no peers at Ashland Ranch at the same level as the student, whereas Academic SCILLS provided the student with greater access to peers at his same level of functioning in a small group setting. In addition, while the District Court had acknowledged the preference for students to attend the school they would attend if not disabled, it concluded that because the student was overstimulated in his general education class despite an isolated learning environment and separate instruction in the resource room, the District correctly determined that his needs could be more appropriately met (and the IEP fulfilled as written) in the small group environment provided at Academic SCILLS.

Lastly, Plaintiffs argued at the District Court level that Student was being denied FAPE because his IEP was in fact “too difficult” in light of his circumstances. The District Court rejected the argument for two important reasons. First, the adequacy of a student’s IEP must be evaluated as of the time it was developed – not in hindsight. Here, the District Court found that the student’s IEP was reasonably developed from information gathered about his needs, during a multi-disciplinary evaluation.

Second, the District Court made clear that, while the IDEA may require a school district to provide a student with a disability a “basic floor of opportunity,” this does not mean that states do not have the power to provide students with an education that they consider to be more appropriate than that proposed by a student’s parents. Based on the Supreme Court’s decision inEndrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017), school districts are instead required to provide students with something more than de minimis progress, in light of the child’s unique circumstances. The District Court was unpersuaded by Plaintiffs’ argument, which would have required a lowering of this standard for the student. In its short three-page decision, a panel of the Ninth Circuit affirmed the District Court’s decision as to the appropriateness of the increased special education support, and the District’s unilaterally moving the student’s special education services to a different location.

While the court’s decision inR.M. v. Gilbert Unified School District is, at first glance, a win for school districts, we caution against firm reliance on its outcome. While the Ninth Circuit found that a change in placement did not occur, it is difficult to predict whether a similar outcome would result in California. California law defines the phrase “specific educational placement” quite broadly (Cal. Code Regs. tit. 5, § 3042, subd. (a)) and may restrict a school district’s ability to unilaterally change the location of a student’s special education services, despite the holding inR.M. v. Gilbert Unified School District. While not binding, in at least one case, the State of California, Office of Administrative Hearings (OAH), relied upon Section 3042(a) of Title 5 of the California Code of Regulation, to broadly interpret “specific educational placement,” noting that this term includes “that unique combination of facilities, personnel,location or equipment necessary to provide instructional services to an individual with exceptional needs,” (emphasis added) as specified in the IEP. (Oakland Unified School District (November 30, 2018) OAH Case Nos. 2017120075 and 2018060529; Cal. Code Regs. tit. 5, § 3042, subd. (a).) Therefore, California school districts likely have a more nuanced analysis of location changes than the one utilized by the Court inR.M. v. Gilbert Unified School District. When contemplating whether or not a move from one school site or location to another constitutes a change in placement, school districts should consult with legal counsel.

For more information this case or to discuss any special education matters, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

[1]Academic SCILLS provides students with a hands-on, concrete approach to reading, math, written expression, and content areas. The academics are based off of the Arizona Common Core Standards, but alternative curriculum and methods are used to focus on the most important concepts and skills. When appropriate, children are given opportunities to “pre-learn” lesson material from the general education classroom to increase their success levels in that setting.

Written by:

Marcy Gutierrez

Partner

Kyle A. Raney

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The United States Supreme Court Again Confronts The Reach Of The Establishment Clause

September 2019
Number 40

In American Legion, et al. v. American Humanist Association, et al., the United States Supreme Court, by split decision, ruled that a World War I memorial in Prince George’s County, Maryland, consisting of a cross, did not violate the Establishment Clause of the First Amendment of the United States Constitution, which prohibits the government from establishing an official religion or favoring one religion over another.

In 1918, residents of Prince George’s County formed a committee to erect the memorial for County residents who had fallen during World War I. The committee decided a Latin cross would be an appropriate memorial, as it had become a central symbol of the war and “row after row of plain white crosses” marking the graves of the fallen overseas was a central image on the minds of many Americans. When the Committee ran out of money, the local American Legion completed the memorial’s construction, whose emblem is featured at the center. During the dedication ceremony, a Catholic priest and a Baptist pastor engaged in religious ceremonial activities. The memorial has since been used regularly for patriotic events. In 1961, the Maryland-National Capital Park and Planning Commission acquired the memorial and the land where it sits, but the American Legion retained the right to use the memorial for patriotic events. The memorial has been maintained with public funds since the commission took possession of the memorial. In 2012, a group of local residents filed a lawsuit arguing the memorial violates the Constitution’s Establishment Clause. The case ultimately made its way to the Supreme Court.

For context, in 1971, the Supreme Court established the “Lemon test” in Lemon v. Kurtzman. Under the Lemon test which was intended to determine whether a governmental practice violates the Establishment Clause, a court analyzes a governmental practice’s constitutionality based by reviewing whether: (1) the practice has a secular purpose, (2) the practice’s principal effect advances or inhibits religion, and (3) the practice creates an excessive government entanglement with religion. Over time, various members of the Court, past and present, have criticized the Lemon test.

In his opinion in American Legion, Justice Alito declined to apply the Lemon test to the instant case, reasoning that although the cross is historically a Christian symbol and continues to have that meaning today, it has become secular in other contexts. As such, in this instance, the cross’ status as a “central symbol” of World War I explains the choice to use a cross as the memorial. Justice Alito further observed that the Lemon test attempted, but failed, to “bring order and predictability to Establishment Clause decision making.” In reaching this conclusion, the Court noted that “retaining established, religiously expressive monuments” was different than creating new ones, primarily because: established, religiously expressive monuments are often old, and it is difficult to determine the monument’s original intent; over time, the purposes and intent associated with a particular monument increase or, even if the monument was originally associated with religion, the passage of time diminishes that sentiment and the monument is retained for its historical significance; the message of a monument may evolve; and when the passage of time gives a particular monument familiarity, the removal of the monument may not appear neutral.

The Court also found that the memorial clearly had, at least, the secular purpose of memorializing the fallen, which also became important from a historical perspective. The memorial reminds local residents of the heroism of area soldiers. The Court also noted there is no evidence that Jewish soldiers were either “deliberately left off the list on the memorial” or “included on the Cross against the wishes of their families.”

In Justice Breyer’s separate concurring opinion, joined by Justice Kagan, he concluded that the most important consideration in each case is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.” Justice Breyer’s words could potentially have the effect of narrowing the impact of the decision by making it clear that these cases must be decided on a case-by-case basis.

A majority of the Court seems to agree that the Lemon test’s applicability to all Establishment Clause cases is no longer (and has not been) an absolute. The Court also made clear that the Lemon test does not fit well with cases involving long-established, religiously expressive monuments.

Local governments should take note of this opinion as it will have an impact on what type of religiously-themed monuments are allowable under the Establishment Clause and whether any existing religiously expressive monuments are in violation. Under American Legion, it appears monuments which are established, have assumed a role in history and/or society beyond religious symbolism, and provide some sort of community function aside from religion, are more likely to be allowed under the Establishment Clause.

For more information about the American Legion case, the Establishment Clause, or other constitutional questions common to governmental entities, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

More Time For Paid Family Leave Is Now Available For State Employees

September 2019
Number 39

Governor Gavin Newsom recently signed Senate Bill (SB) 83. SB 83 affects employees who are eligible for and pay into State Disability Insurance (SDI). SDI allows employees to receive income replacement for up to six weeks while disabled and off work. SB 83 extends the wage replacement benefits under SDI from six weeks to eight weeks effective July 1, 2020. In addition, SB 83 expands the uses for California’s SDI to include:

  • care for a seriously ill child, spouse, parents, grandparent, grandchild, sibling, or domestic partner; or
  • bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

SB 83 further requires the Governor, by November 2019, following recommendations from a task force, to present a plan to the legislature for the further expansion of paid family leave from six weeks to six months for parents to care for and bond with their newborn or newly adopted child.

Public agency employers with employees who pay into SDI should review existing leave benefits and policies and be prepared for the increase in benefits, including the increase starting July 2020, and the potential increase by 2022 pending the Governor’s November 2019 proposal.

For further information regarding SB 83, paid family leave, or employment issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Dulcinea Grantham

Partner

Marina L. Ramirez

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.