Thoughts on meaningful parent participation and some practical suggestions on improving parent communications from a legal perspective.

1. Education Law
What we will cover today:
• The Practical Problem –
 What can you do when parents are uncooperative
or worse?
• What does the Law and the Courts Say About
Parental Participation?
• Strategies to Create Meaningful Parent
Participation.
• Questions.
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2. Education Law
PRESENTED BY
Jack B. Clarke, Jr.
Partner
Thoughts on meaningful parent participation
and some practical suggestions on improving
parent communications from a legal
perspective.
©2017 Best Best & Krieger LLP
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3. Education Law
What We Will Cover Today:
1. The Practical Problem –
• What can you do when parents are uncooperative
or worse?
2. What Does the Law and the Courts Say About
Parent Participation?
3. Strategies to Create Meaningful Parent
Participation.
4. Questions.
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4. Education Law
The Practical Problem
• Parents are difficult to get to the IEP.
• Parents won’t come to the IEP.
• Parents come, but they don’t act in a
collaborative manner.
• Parents come and “terrorize” your staff.
What can you do under the law?
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5. Education Law
The Law
• 34 CFR 300.501 Opportunity to examine records; parent participation in meetings.
(a) Opportunity to examine records. The parents of a child with a disability must be
afforded, in accordance with the procedures of §§ 300.613 through 300.621, an
opportunity to inspect and review all education records with respect to--
(1) The identification, evaluation, and educational placement of the child; and
(2) The provision of FAPE to the child.
(b) Parent participation in meetings. (1) The parents of a child with a disability must be
afforded an opportunity to participate in meetings with respect to--
(i) The identification, evaluation, and educational placement of the child; and
(ii) The provision of FAPE to the child.
(2) Each public agency must provide notice consistent with § 300.322(a)(1) and (b)(1) to
ensure that parents of children with disabilities have the opportunity to participate in
meetings described in paragraph (b)(1) of this section.
(3) A meeting does not include informal or unscheduled conversations involving public
agency personnel and conversations on issues such as teaching methodology, lesson plans,
or coordination of service provision. A meeting also does not include preparatory activities
that public agency personnel engage in to develop a proposal or response to a parent
proposal that will be discussed at a later meeting. (next slide )
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6. Education Law
The Law
• 34 CFR 300.501 (cont’d.)
(c) Parent involvement in placement decisions. (1) Each public agency must ensure that
a parent of each child with a disability is a member of any group that makes decisions on
the educational placement of the parent's child.
(2) In implementing the requirements of paragraph (c)(1) of this section, the public agency
must use procedures consistent with the procedures described in § 300.322(a) through
(b)(1).
(3) If neither parent can participate in a meeting in which a decision is to be made relating
to the educational placement of their child, the public agency must use other methods to
ensure their participation, including individual or conference telephone calls, or video
conferencing.
(4) A placement decision may be made by a group without the involvement of a parent, if
the public agency is unable to obtain the parent's participation in the decision. In this case,
the public agency must have a record of its attempt to ensure their involvement.
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7. Education Law
What Does the Law and What do the
Courts Say About This?
• When can we have the IEP without the parents?
 The answer is in Title 34, C.F.R. § 300.322 and 300.501(c)(4)
[Parent participation and opportunity to examine records; parent
participation in meetings.]
 We can only have an IEP without the parents if we cannot
“convince” them to attend.
 The efforts to convince them must be supported by a record
such as:
• Detailed records of telephone calls;
• Copies of correspondence sent to the parents and any responses.
• Detailed records of visits made to the parents’ home or place of
employment.
 What if the parents just say: “We cannot attend on the offered
date?”
See Elk Grove Unified School District (May 6, 2005) 105 LRP 53397.
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8. Education Law
The Courts (cont’d.)
• Sacramento City Unified School District (January 16, 2014 CA
SEA) 114 LRP 6937.
 An ALJ found that a school district violated a parent’s right to
meaningful parent participation by not giving the parent
sufficient notice of an IEP meeting.
 The ALJ’s reasoning:
• “As noted in Legal Conclusions 30, 32, and 33 below, Father engaged in
repeated obstruction of the IEP process since December 2012, refused
to cooperate in the agenda for convened IEP team meetings, refused to
set aside his complaints to review Student’s progress or update his IEP,
refused to attend the May 2013 IEP meeting, and refused to attend any
other IEP team meeting until the fall of 2013. In these circumstances,
Father’s actions prevented District from meeting its legal obligations to
Student in a timely manner. However, this did not entitle District to
bypass the legal requirements to document detailed attempts to
schedule the June 2013 IEP team meeting or entitle them to make no
attempts whatsoever. Since District did not validly hold the IEP team
meeting in the absence of Parents, the June 7, 2013 IEP developed at
that meeting is voided.”
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9. Education Law
How do the Courts Apply the Precepts
of Law?
• M.M. etc. v. Lafayette School District etc., et al. (9th Cir. 2014)
767 F.3d 842.
 Student C.M. was a male kindergartener at Lafayette Elementary
School.
 The School was implementing a new response to intervention in
Kindergarten and by the end of Kindergarten, he met some areas
of grade level reading and he was approaching others.
 In 1st grade, he encountered some difficulty and therefore he
was assessed for potential special education eligibility. C.M. was
fond eligible due to a phonological processing disorder.
 By the third grade, parents were not satisfied with the progress
C.M. was making and, therefore, obtained their own assessment
and enrolled C.M. in an intensive reading and comprehension
program.
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10. Education Law
The Courts (cont’d.)
• M.M. etc. v. Lafayette School District, cont’d.
 Parents then filed multiple due process complaints
against the District alleging multiple violations of the
I.D.E.A. The District prevailed in the due process
proceedings, but the parents then filed three lawsuits
in Federal District Court. The District Court found in
favor of the District on all but one claim and the
parents appealed to the Ninth Circuit Court of
Appeals.
 The Ninth Circuit focused on the issue of whether the
District should have disclosed the RTI data to the
parents.
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11. Education Law
The Courts (cont’d.)
• Tehachapi Unified Sch. Dist. (Dec. 1, 2016 CA
SEA) 116 LRP 51118
 9 year old. Found student eligible for services
under the category of SLI.
 The ALJ found that the District had
“predetermined” the S/L services Tehachapi would
provide to student.
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12. Education Law
The Courts (cont’d.)
• Tehachapi Unified Sch. Dist. (cont’d.)
 Here is the ALJ’s reasoning:
• Nowhere is Tehachapi’s predetermination of its offer more
apparent than at the March 31, 2016 IEP team meeting,
where the running theme of the discussion regarding
Student’s speech minutes was that Tehachapi would not offer
additional services because it did not want to offer something
that it could not provide. Ms. W. was only able to provide
student 40 minutes per week of group speech sessions, and
Mr. F. told the IEP team that Tehachapi did not have any other
resources for student. Mr. F. was reluctant to stand by
Tehachapi’s December 2015 annual offer of 80 minutes per
month of one-to-one speech sessions until Student’s teacher
offered to provide these minutes.”
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13. Education Law
The Courts (cont’d.)
• What else is predetermination/lack of
meaningful parent participation?
• Compton Unified School District (July 22, 2016
CA SEA) 116 LRP 31141.
 Parent claimed that not having a general education
teacher at the IEP was a procedural violation even
though the parent signed an excusal from at the
end of the meeting. The ALJ agreed.
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14. Education Law
The Courts (cont’d.)
• Compton Unified School District (cont’d.)
• Here is the ALJ’s reasoning:
 “At the December 4, 2015 and January 15, 2016 IEP team meetings, Mother
had questions concerning the level of academics presented to preschool
children in both special education and general education programs. A general
education placement and mainstreaming with a one-on-one aide were options
Mother wanted the team to consider. District proposed placing Student in a
special day classroom with mainstreaming opportunities in a State-run
preschool program with typical peers, outside of special education, for 20
percent of Student’s school day, but had nobody in attendance who could
provide Mother with information on general education preschool
opportunities. Mother raised questions regarding the appropriateness of a
general education classroom with aide support for Student, and had a
procedural right to receive answers from a general education preschool
teacher. Instead, parents were left without information on general education
options and unable to determine whether the program offered was a FAPE in
the least restrictive preschool environment. The absence of a general
education teacher at these important meetings was a procedural violation that
impeded Parents’ opportunity to participate in the IEP process, and so resulted
in a substantive denial of FAPE.”
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15. Education Law
The Courts (cont’d.)
• In light of those cases, how do we reconcile
Abdella et al. v. Folsom Cordova Unif. Sch.
District (U.S. D.C. Eastern Dist. CA 2016) 116
LRP 26448.
 The Court ruled that a psychoeducational
assessment sufficiently summarized the underlying
data so as to allow meaningful parent
participation.
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16. Education Law
The Courts (cont’d.)
• Abdella et al. v. Folsom Cordova Unif. Sch. District (cont’d.)
 The Court reasoned:
• “While plaintiffs disagree with the school psychologist’s
characterization of M.A.’s potential attention deficit as being only a
‘mild concern,’ plaintiffs, and the IEP team, were informed that the
Conner 3-Report completed by Mr. W. (like that completed by plaintiffs
themselves) indicated that inattention and ADHD were a concern for
M.A. Plaintiffs have failed to explain how the lack of a copy of Mr. W’s
Conners 3-Report caused the loss of an educational opportunity,
seriously infringed plaintiffs’ opportunity to participate in the IEP
formulation process or caused the deprivation of educational benefits.
Cf. Lafayette, 767 F.3d at 856 (‘Without the RTI data, the parents were
struggling to decipher his unique deficits, unaware of the extent to
which he was not meaningfully benefitting from the ISP, and thus
unable to properly advocate for changes to his IEP.’) Amanda J., 267
F.3d at 894 (‘The IEP team could not create an IEP that addressed
Amanda’s special needs as an autistic child without knowing that
Amanda was autistic.’) Here, the entire IEP team was informed that
M.A. was at risk for inattention and ADHD.”
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17. Education Law
The Courts (cont’d.)
• How else can a procedural violation take
place?
 Tamalpais Union High Sch. Dist. (July 27, 2015 CA
SEA) 115 LRP 39394.
• ALJ ruled that failure to have a district designee who
could make a decision on the parent’s request denied
parent participation and therefore denied the child a
FAPE.
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18. Education Law
The Courts (cont’d.)
 Tamalpais Union High Sch. Dist. (cont’d.)
• “The California Department of Education’s determination that
Tamalpais violated the IDEA by failing to have someone at the
February 28, 2014 IEP team meeting who could approve of
the extension of Autistry’s services is considered
independently here. Its determination is persuasive. The
original decision to fund Autistry’s services was made by the
IEP team in the IEP team meeting of June 10, 2013, through
an agreement was executed outside the IEP process. The
Tamalpais members of the February 28, 2014 IEP team were
mistaken in their belief that they could not consider Parents’
request to extend those services at an IEP team meeting.
Tamalpais does not argue otherwise in its closing brief.”
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19. Education Law
The Courts (cont’d.)
• Aveson Charter Schools, Aveson School of Leaders
and Aveson Global Leadership Academy (Dec. 7,
2015 CA SEA) 116 LRP 241.
 Student was an 11 year-old male who entered into the
Charter School after a significant amount of
homeschooling.
 The year before the due process hearing, the Student
was found eligible for IDEA services based on a
determination the Student had SLD.
 The pertinent portion of the case to this decision
found that the School violated the Parents’
participation rights by not having a school psychologist
at a March 22, 2012 IEP.
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20. Education Law
The Courts (cont’d.)
• Aveson Charter Schools, Aveson School of Leaders
and Aveson Global Leadership Academy (cont’d.)
 The ALJ’s reasoning:
• “The failure to have Ms. M. present at the March 2012 IEP did
not deny Student educational opportunity or deprive him of
educational benefits because, as discussed below, Student
failed to prove his eligibility for special education prior to
December 11, 2014. However, the failure to have the person
who conducted Student’s psychoeducational assessment (and
upon whose recommendation for eligibility the IEP team
relied) present at Student’s initial IEP team meeting interfered
with Parents’ opportunity to meaningfully participate in the
IEP process. …”
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21. Education Law
The Courts (cont’d.)
• Oakland Unified School District (June 2, 2015
CA SEA) 115 LRP 20632.
• What is the bottom line of this case?
 District did not translate the IEP and assessments
into Spanish. Therefore, that error denied the
Parent meaningful parent participation.
• What is the nuance of this case?
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22. Education Law
The Courts (cont’d.)
• Compare Y.A. etc. v. New York City Dept. of
Educ. (Sept. 16, 2016 U.S. District Court, So.
Dist. N.Y.) 117 LRP 220.
 Another translation case: Parent appeared to
know some English. But Parent’s primary language
was Russian. Court found that Parents “lack of
fluency” in English showed she should have been
provided an interpreter. This denied the Parent
meaningful parent participation.
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23. Education Law
The Courts (cont’d.)
• Is there hope?
• Mrs. J. and Mr. J. etc., et al. v. Portland Public
Schools (Dec. 5, 2016 U.S. Dist. Court, Maine)
116 LRP 50803.
 The Court was able to side-step the issue of
predetermination of a Student’s placement
because the District agreed to consider the results
of new evaluations of the Student making any
procedural violation “harmless.”
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24. Education Law
• But don’t parents have some responsibility to act
reasonably?
• In some parts of America, “yes.”
 Rockwall Independent School District v. M.C., etc. et al.
(5th Cir. 2016) 11 LRP 9727.
• Student qualified for services under the eligibility category of
ED. Student was in the eighth grade at the time of the
dispute.
• After a series of difficulties in school (declining grades,
truancy, detentions and suspensions), parents determined
that they were going to residentially treat the student.
• Parents did place the student, but ultimately, the Courts
denied tuition reimbursement.
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The Courts (cont’d.)
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25. Education Law
 Rockwall Independent School District v. M.C., etc. et al. (cont’d.)
 Here is part of the Court’s reasoning:
• “M.C.’s father’s testimony at the due process hearing further highlights
the parents’ inflexible position during the IEP process: ‘I was more than
interested in working with Rockwall School District on continuing to
work with the IEP as long as [M.C.] was able to, you know, do the
transition thing that we were talking about.’
In sum, the record indisputably reveals that the parents adopted an
‘all-or-nothing’ approach to the development of M.C.’s IEP and that
they thereby adamantly refused to consider any of RISD’s alternative
proposals that did not involve M.C. remaining at the DLC for the spring
2012 semester. As the district court supportably found, the parents’
actions ‘broke down’ the IEP-development process, resulting in an
incomplete IEP for M.C. for the spring 2012 semester. We conclude that
the parents’ actions, well-intentioned as they may have been,
constituted an unreasonable approach to the IEP-development process,
rather than the collaborative or interactive approach envisioned by the
IDEA. …WE therefore conclude that the parents are not entitled to
reimbursement of costs incurred by M.C.’s attendance at the DLC for
the spring 2012 semester.”
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The Courts (cont’d.)
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26. Education Law
• But is that good news for us?
• Here is what an Administrative Law Judge in California said about unreasonable
parents:
 “The evidence did not show why Mother did not return the assessment plan sooner. East Side
now blames her for the delay, and she does have some partial responsibility for it. But the
Ninth Circuit Court of Appeals has repeatedly rejected attempts to blame parents for a school
district’s failure to comply with the IDEA. (See Doug C. v. Hawai’i Dept. of Educ. (9th Cir. 2013)
720 F.3d 1038, 1045 [“We have consistently held that an agency cannot eschew its affirmative
duties under the IDEA by blaming the parents.”]; Anchorage Sch. Dist. v. M.P. (9th Cir. 2012) 689
F.3d 1047, 1055 [“[P]articipating educational agencies cannot excuse their failure to satisfy the
IDEA’s procedural requirements by blaming parents.”]); W.G. v. Target Range Sch. Dist. No. 23,
supra, 960 F.2d at p. 1485 [school district could not blame parents’ leaving IEP team meeting
for its failure to create an IEP with participation of appropriate parties].). It was East Side, not
Mother, which decided to assess in early August 2014 but did not begin the process until
November. It was East Side which decided to delay changing Student’s failing placement, and
perhaps even to delay convening an IEP team meeting, until it could assess Student. And it was
East Side which did not use available and effective mechanisms for communicating with
mother until March 2015. Having placed such a premium on assessing first, East Side cannot
persuasively argue that its unhurried use of its ordinary but ineffectual methods satisfied the
legal requirement. East Side therefore violated the IDEA’s requirement for timely presentation
of an assessment plan.”
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The Courts (cont’d.)
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27. Education Law
So What Can We Do?
• Keep an open mind;
• Elicit parent input and document it;
• Use PWN to clarify and explain your offers,
particularly in different cases;
• Re-evaluate your translation services;
• Keep an open mind;
• Document efforts to communicate and
negotiate with the families; and
• Keep an open mind!
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28. Education Law
Questions?
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29. Education Law
Thank you for attending.
Jack B. Clarke, Jr.
Partner
Best Best & Krieger LLP
3390 University Ave., 5th Floor
Riverside, CA 92501
(951) 686-1450
Email: jack.clarke@bbklaw.com
www.bbklaw.com
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