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Turlock Unified School District Prevails in Due Process Case Alleging Child Find, Predetermination, and LRE

In a recent Office of Administrative Hearings (“OAH”) decision, OAH found that the Turlock Unified School District (“District”) appropriately used tiered general education interventions to address the needs of a student during his first-grade school year, and as such, did not violate its child find obligations, among other key findings.

In this case, OAH Case No. 2022091016, parents of a second-grade student requested a due process hearing and asserted that the District denied the student a free and appropriate public education (“FAPE”), in part, by failing to assess the student, and failing to satisfy its child find obligations. Parents also alleged that the District predetermined its placement offer of a special day class (“SDC”) geared towards students with Autism, claiming that general education with a 1:1 aide was the least restrictive environment (“LRE”).

The administrative law judge (“ALJ”) found that the evidence overwhelmingly supported the District’s position. Notably, in finding in favor of the District, the ALJ relied heavily on governing state law, and explained that a student “shall be referred for special education only after the resources of the regular education program have been considered and where appropriate, utilized.” (Ed. Code 56303.)

While each case is fact specific, the decision contains favorable findings which may be relevant to a case involving child find. For example, the ALJ determined that low academic performance due to poor attendance did not trigger “child find” duties to assess. This finding was based upon the ALJ’s reasoning that the District reasonably used general education interventions before referral for special education assessment. Specifically, the ALJ noted that: “Four months of general education interventions were appropriate to determine if Student could make progress with those supports without a referral for special education.” The ALJ also considered the impact of the student’s poor attendance on the District’s ability to determine whether to issue an assessment plan for special education. The District’s reasonable belief that “Student’s delays were impacted by his poor attendance and his prior year of distance learning” was a further factor considered in holding that the District acted appropriately in offering general education intervention for “four months.”

In terms of LRE, the ALJ applied the four-factor test established by the 9th Circuit Court of Appeals, to find that the proposed SDC placement satisfied the LRE mandate. (See Sacramento City Unified Sch. Dist. V. Rachel H. (9th Cir. 1994) 14 F.3d 1398; 20 U.S.C. 1412(a)(5)(A).) Specifically, the ALJ found that significant academic delays, even without disruptive behavior, provided ample reason for the District to develop an initial offer of placement in an SDC classroom, which included 22% of time mainstreamed in a general education setting. This finding was based largely upon the ALJ’s conclusion that the student, “did not receive any educational benefit in the general education setting” and that his “goals would best be addressed in a small group setting, with intensive academic support, in a special day class.”

Finally, even though the District used a draft IEP document at the IEP meeting, the ALJ found that there was no evidence of predetermination. Instead, the ALJ determined that the use of a draft IEP “facilitated parental participation.”

If you have any questions about this blog post, the decision, or child find and LRE requirements, please feel free to contact any of the attorneys at GPV. You can also follow us on Facebook, LinkedIn, or Instagram. GPV attorneys Marcy Gutierrez, Tilman Heyer, and John Louis Chiappe were proud to assist Turlock Unified School District in securing prevailing party status at due process in this matter. This post does not constitute legal advice. Each case must be analyzed based on the specific facts of that case. GPV does not guarantee or predict the same or similar results in all cases. If you have questions about a particular fact pattern, please contact your legal counsel.

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