L.M. v. Capistrano Unified ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
L. M., a minor by and through his 
Guardian Ad Litem, SAM M. and
MARIETTE M.; SAM M., on his own
behalf; MARIETTE M., on her own
behalf, No. 07-55469
Plaintiffs-Appellees,  D.C. No.
v. CV-06-03049-ABC
CAPISTRANO UNIFIED SCHOOL
DISTRICT,
Defendant-Appellant.

L. M., a minor by and through his 
Guardian Ad Litem, SAM M. and
MARIETTE M.; SAM M., on his own
behalf; MARIETTE M., on her own
behalf, No. 07-55585
Plaintiffs-Appellees,  D.C. No.
v. CV-06-03049-ABC
CAPISTRANO UNIFIED SCHOOL
DISTRICT,
Defendant-Appellant.

1755
1756 L. M. v. CAPISTRANO USD
L. M., a minor by and through his 
Guardian Ad Litem, SAM M. and
MARIETTE M.; SAM M., on his own
behalf; MARIETTE M., on her own
behalf, No. 07-55758
Plaintiffs-Appellants,  D.C. No.
v. CV-06-03049-ABC
CAPISTRANO UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.

L. M., a minor by and through his 
Guardian Ad Litem, SAM M. and No. 07-56373
MARIETTE M.; SAM M., on his own D.C. No.
behalf; MARIETTE M., on her own CV-06-03049-ABC
behalf,
Plaintiffs-Appellees,  ORDER
AMENDING
v. OPINION AND
CAPISTRANO UNIFIED SCHOOL AMENDED
DISTRICT, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
June 3, 2008—Pasadena, California
Filed August 19, 2008
Amended February 13, 2009
L. M. v. CAPISTRANO USD 1757
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and James K. Singleton,*
Senior District Judge.
Opinion by Judge Tallman
*The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
L. M. v. CAPISTRANO USD 1759
COUNSEL
S. Daniel Harbottle, Rutan & Tucker, LLP, Costa Mesa, Cali-
fornia, for the defendant-appellant/appellee.
Bruce E. Bothwell, Law Office of Bruce E. Bothwell, Long
Beach, California, for the plaintiff-appellee/appellant.
ORDER
The Opinion filed on August 19, 2008, is AMENDED as
follows:
1760 L. M. v. CAPISTRANO USD
The text following Section IV of the slip opinion appearing
at pages 11021-11023, is DELETED and REPLACED with
the following:
Parents challenge the district court’s denial of a “stay put”
order pursuant to 20 U.S.C. § 1415(j). The “pendent place-
ment” or “stay put” provision requires the child to remain in
his “current educational placement” during the course of
administrative and judicial proceedings. Id.; Susquenita Sch.
Dist. v. Raelee S., 96 F.3d 78, 82 (3d Cir. 1996). Section
1415(j) states:
Except as provided in subsection (k)(4) of this sec-
tion, during the pendency of any proceedings con-
ducted pursuant to this section, unless the State or
local educational agency and the parents otherwise
agree, the child shall remain in the then-current edu-
cational placement of the child, or, if applying for
initial admission to a public school, shall, with the
consent of the parents, be placed in the public school
program until all such proceedings have been com-
pleted.
The IDEA does not define the phrase “current educational
placement.” Courts have generally interpreted the phrase to
mean the placement set forth in the child’s last implemented
IEP. Johnson v. Special Educ. Hearing Office, 287 F.3d 1176,
1180 (9th Cir. 2002) (“typically the placement described in
the child’s most recently implemented IEP”); Thomas v. Cin-
cinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990) (“[the
placement at the time of] the previously implemented IEP”);
Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d Cir.
1996) (“the dispositive factor in deciding a child’s ‘current
educational placement’ should be the [IEP] . . . actually func-
tioning when the ‘stay put’ is invoked.”) (internal quotation
marks and citation omitted).
Alternatively, if the student has no implemented IEP
because he is applying for initial admission to public school,
L. M. v. CAPISTRANO USD 1761
the parents may consent to the student being placed in public
school during the pendency of administrative proceedings. In
that case, even if the parents disagree with the school’s initial
proposed placement, the public school becomes the child’s
“current educational placement” for purposes of a “stay put”
action. See 20 U.S.C. § 1415(j).
L.M. does not fit into either of these common “current edu-
cational placement” categories. First, he never had an imple-
mented IEP. The District and Parents never agreed on a
placement for L.M. Second, at the time this litigation com-
menced, L.M. was making his initial application for public
school. But rather than consenting to L.M. being placed in a
public school for the duration of the litigation as provided for
in § 1415(j), Parents unilaterally placed L.M. in a very expen-
sive private program.
Therefore, Parents’ only viable argument for entitlement to
“stay put” is to construe the district court’s March 13, 2007,
reimbursement order as creating a “current educational place-
ment” implied by law. Clovis Unified Sch. Dist. v. Cal. Office
of Admin. Hearing, 903 F.2d 635, 641 (9th Cir. 1990) (per
curiam) (discussing Sch. Comm. of the Town of Burlington v.
Mass. Dep’t of Educ., 471 U.S. 359 (1985), and concluding
that “once the State educational agency decided that the par-
ents’ placement was the appropriate placement, it became the
‘then current educational placement’ within the meaning of
section 1415”); see Mackey, 386 F.3d at 163 (“ ‘once the par-
ents’ challenge [to a proposed IEP] succeeds . . . , consent to
the private placement is implied by law, and the requirements
of § 1415(j) become the responsibility of the school dis-
trict.’ ” (alterations in original) (quoting Bd. of Educ. v.
Schutz, 290 F.3d 476, 484 (2d Cir. 2002)). Where the agency
or the court has ruled on the appropriateness of the educa-
tional placement in the parents’ favor, the school district is
responsible for appropriate private education costs regardless
of the outcome of an appeal. Clovis, 903 F.2d at 641.
1762 L. M. v. CAPISTRANO USD
Parents argue their private placement is L.M.’s “current
educational placement” because they prevailed before the dis-
trict court in their procedural challenge. See Mackey, 386 F.3d
at 163. However, in each of the cases where a court implied
a “current educational placement,” the court or agency below
had expressly deemed the private placement appropriate. In
Mackey, a State Review Officer (“SRO”) considered the two
plans, found the public placement inappropriate, and con-
cluded the student’s needs were met at the private school the
parents had chosen. 386 F.3d at 162. In Clovis, the adminis-
trative hearing officer explicitly found the private hospital
placement was appropriate. 903 F.2d. at 639. In Schutz, the
hearing officer made a “determination that the services
selected by the parents were appropriate.” 290 F.3d at 484-85.
On the basis of those findings on the merits, the reviewing
courts could imply “current educational placements” for the
purpose of § 1415(j). The Mackey court reasoned that “[t]he
regulations provide that a child’s current placement may be
changed upon agreement between the parents and the state,
and that an SRO decision that ‘agrees with the parents that a
change of placement is appropriate . . . must be treated as
such an agreement.’ ” 386 F.3d at 163 (quoting 34 C.F.R.
§ 300.514(a) and (c)). The court concluded Mackey’s pen-
dency placement changed “once the SRO rendered a deci-
sion.” Id. In Clovis, we concluded the school district was
responsible for maintaining the student in that placement
“after the administrative decision that the placement was
appropriate.” 903 F.2d at 641. Similarly, the Second Circuit
held in Schutz that § 1415(j) applied because the parents had
successfully challenged the proposed IEP and the services
chosen by the parents were appropriate. 290 F.3d at 484-85.
That did not occur here because, in reviewing the ALJ’s
decision, the district court found the procedural violation to be
structural and ordered the specific relief requested by Parents
without ever “adjudicat[ing] the appropriateness of [L.M.’s]
L. M. v. CAPISTRANO USD 1763
private placement.”1 In its May 15, 2007, Order denying the
stay put injunction, the district court reiterated that it had not
ruled on the merits of L.M.’s placement.
Unlike in Mackey, Clovis, and Shutz, the district court here
made no determination from which we can imply L.M.’s pri-
vate program is his “current educational placement.” Unless
the district court or agency actually reaches the merits of the
appropriate placement, we will not imply a “current educa-
tional placement” for purposes of § 1415(j).
Because L.M.’s private program, chosen by his parents
alone, does not qualify as a “current education placement”
under § 1415(j), the “stay-put” provision does not apply and
the district court properly denied Parents’ motion.
The panel has voted to deny the petitions for panel rehear-
ing. Judges O’Scannlain and Tallman have voted to deny the
petitions for rehearing en banc and Judge Singleton so recom-
mends.
The full court has been advised of the petitions for rehear-
ing en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petitions for panel rehearing and the petitions for
rehearing en banc are denied.
1
L.M. points to language in the district court’s opinion indicating “the
private in-home services . . . were appropriate, under the circumstances”
to support his argument that the court did rule on the merits of his place-
ment. He takes this language entirely out of context. In that section of its
opinion, the district court addressed the right to reimbursement under sec-
tion § 1412(a)(10)(c), which permits reimbursement if the child has
received “some educational benefit.” The district court deemed the private
placement “appropriate under the circumstances” only in the sense that
L.M. had received some educational benefit entitling Parents to reimburse-
ment for the one year for which they actually sought relief. It has no bear-
ing on the merits of the two programs for purposes of § 1415(j).
1764 L. M. v. CAPISTRANO USD
No further petitions for rehearing en banc shall be enter-
tained.
OPINION
TALLMAN, Circuit Judge:
L.M. is the autistic child of two loving parents, Samuel and
Mariette (collectively “Parents”), who have spared no expense
to obtain private in-home treatment for their developmentally
disabled son. The local Capistrano Unified School District
(“District”) balked at the idea of continuing the in-home edu-
cational plan at public expense and offered an alternative
plan. The matter ended up before an administrative law judge
in California who conducted a four-day evidentiary hearing to
resolve the dispute, ultimately ruling in favor of the District.
We must decide whether the district court clearly erred by
reversing the state administrative agency’s finding that a pro-
cedural violation of the Individuals with Disabilities Educa-
tion Act (“IDEA”), 20 U.S.C. §§ 1400-1482, amounted to
harmless error. The answer depends on whether the District
significantly restricted Parents’ right to participate in their dis-
abled child’s Individual Educational Program (“IEP”) by lim-
iting Parents’ classroom observational opportunities to twenty
minutes, when the District observed the child in his private
education program for up to three hours. The district court
had jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C.
§ 1415(i)(3). We have appellate jurisdiction under 28 U.S.C.
§ 1291.
In reversing the administrative agency, the district court
failed to properly consider whether Parents’ right to partici-
pate was “significantly affected.” In other words, the district
court failed to consider whether the District’s policy of limit-
ing Parents’ classroom observational opportunities to twenty
L. M. v. CAPISTRANO USD 1765
minutes was harmless because Parents nevertheless had a full
opportunity to participate in the process to fashion an appro-
priate educational plan for L.M. with help from an informed
and knowledgeable expert. There is no evidence to support a
finding that Parents’ right to participate was significantly
affected. We therefore reverse the district court’s order requir-
ing the District to reimburse Parents for the cost of in-home
services and vacate its subsequent award of attorneys’ fees to
Parents as the prevailing party. We also affirm the district
court’s denial of a “stay put” order requiring the District to
reimburse Parents for continuing education expenses beyond
that covered in its original order.
I
In July 2004, a pediatric neurologist diagnosed L.M., then
two and one-half years old, with autism. L.M. began receiving
early intervention services from the Regional Center of
Orange County in late August 2004. Through the early inter-
vention services, L.M. received speech-language therapy,
occupational therapy, and started a one-to-one in-home
behavioral program. Autism Comprehensive Educational Ser-
vices (“ACES”), a non-public agency, administered L.M.’s
private behavioral program. In December 2004, L.M.’s par-
ents began paying ACES for a few additional hours of one-to-
one services per week, eventually increasing his one-to-one
services to twenty-five hours per week.
In November 2004, Parents met with the District’s school
psychologist Luisa Martinez to begin discussing L.M.’s tran-
sition to the District on his third birthday. In December and
January, the District conducted several observations of L.M.
during his in-home education services. On January 10, 2005,
L.M.’s IEP team met to discuss L.M.’s assessment results and
initial placement in the District.1 The District offered to place
1
An IEP is a written statement developed for each disabled child by an
“IEP team” that typically consists of the parents, a special education
1766 L. M. v. CAPISTRANO USD
L.M. in the Palisades Elementary School, provide individual
intensive behavior instruction for four hours per week,
speech-language therapy for two thirty-minute sessions per
week, occupational therapy for thirty minutes per week, and
extended school year services. Parents attended the meeting,
asked questions, but did not indicate whether they approved
of the District’s proposed program.
L.M. turned three-years-old on January 22, 2005, but did
not begin attending school in the District. Parents continued
to fund the one-to-one services provided from ACES. After
the initial IEP meeting, Parents twice visited the proposed
school, once with the principal and once with Dr. Melanie
Lenington, a licensed psychologist. Dr. Lenington asked to
observe the proposed program for a continuous ninety-minute
period, but was limited to twenty-minute increments because
of a district-wide policy.2 Dr. Lenington never returned to
conduct further observations after her initial twenty-minute
visit.
In February and March 2005, District psychologist Marti-
nez attempted to contact Parents to discuss the IEP offer. The
Parents did not respond, and in March 2005, they filed a
request for a due process hearing pursuant to 20 U.S.C.
teacher, a representative of the local education agency, an expert, and
when appropriate, the child. 20 U.S.C. § 1414(d); Christoper S. v. Stanis-
laus County Office of Educ., 384 F.3d 1205, 1208 n.1 (9th Cir. 2004).
Some of the information the IEP must contain includes: (1) information
regarding the child’s present levels of performance; (2) a statement of
annual goals and short-term instructional objectives; (3) a statement of the
special educational and related services to be provided to the child; (4) an
explanation of the extent to which the child will not participate with non-
disabled children in the regular class; and (5) objective criteria for measur-
ing the child’s progress. 20 U.S.C. § 1414(d).
2
To limit classroom disruption, the District did not allow classroom
observations to extend beyond twenty minutes. However, Dr. Lenington
could have returned anytime for another twenty-minute observation
period. She chose not to do so because of the time and expense involved
in commuting to and from the school.
L. M. v. CAPISTRANO USD 1767
§ 1415(f), alleging that the proposed IEP offer denied L.M. a
free appropriate public education (“FAPE”).3 In response to
the due process request, on April 7, 2005, the District sent a
letter to Parents offering additional services including more
tutoring in the home and a formal transition plan.
In June 2005, the IEP team met for a second IEP meeting.
During this meeting L.M.’s father, Samuel, asked several
pointed questions regarding the research supporting the Dis-
trict’s program. After some discussion, District staff objected
to Samuel’s questions because they felt interrogated. When
District staff attempted to change the subject to topics specific
to L.M., Samuel objected, and stated that the last two minutes
of the meeting should be used to talk about the District’s top-
ics. In September 2005, Parents enrolled L.M. in the Center
for Autism and Related Disorders program.
The California due process hearing took place in February
2006. The hearing lasted four full days and twelve witnesses
were called. During the hearing and in her subsequent Opin-
ion, Administrative Law Judge (“ALJ”) Suzanne B. Brown
addressed four separate issues: (1) whether the District
offered L.M. a FAPE in the least restrictive environment from
3
The IDEA guarantees all disabled children a FAPE, which “empha-
sizes special education and related services designed to meet their unique
needs and prepare them for further education, employment, and indepen-
dent living.” 20 U.S.C. § 1400(d)(1)(A). The IDEA defines FAPE as
special education and related services that—
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized edu-
cation program required under section 1414(d) of this title.
20 U.S.C. § 1401(9).
1768 L. M. v. CAPISTRANO USD
January 22, 2005, through April 7, 2005; (2) whether the Dis-
trict offered L.M. a FAPE in the least restrictive environment
from April 7, 2005, through June 7, 2005; (3) whether the
District offered L.M. a FAPE in the least restrictive environ-
ment from June 7, 2005, to February 2006; and (4) whether
L.M. is entitled to reimbursement for privately funded ser-
vices and prospective placement with his service providers.
The ALJ concluded that the District failed to offer L.M. a
FAPE from January 22, 2005, to April 7, 2005, because the
District had not clearly offered thirty minutes of weekly indi-
vidual speech-language therapy4 and because the District’s
proposed IEP lacked a transition plan that was designed to
address L.M.’s unique needs.5 Although the District offered
Parents an IEP with a transition plan on April 7, 2005, the
new IEP still neglected to provide L.M. with the necessary
thirty minutes of weekly individual speech-language therapy.
Therefore, the ALJ concluded that the District also failed to
offer L.M. a FAPE in the least restrictive environment from
April 7, 2005, to June 7, 2005. As a result of these procedural
violations, the ALJ ordered the District to reimburse Parents
for the cost of providing the in-home program from January
22, 2005, to April 7, 2005. The ALJ also ordered the District
to reimburse Parents for the cost of providing one hour of
speech-language therapy per week from January 22, 2005, to
July 22, 2005, and from the start of the 2005-2006 school year
until the date of the ALJ’s decision filed March 28, 2006.
The ALJ also determined that the District violated Califor-
nia Education Code section 56329(c)6 when it limited Dr.
4
Although the District offered two thirty-minute sessions of speech-
therapy, it did not specifically offer at least one thirty-minute session of
individual speech-language therapy.
5
The District did not appeal the ALJ’s findings regarding these viola-
tions.
6
California Education Code section 56329(c) provides:
L. M. v. CAPISTRANO USD 1769
Lenington’s classroom observation time to twenty-minute
increments, but the ALJ nevertheless concluded that the pro-
cedural flaw in the development of the IEP was harmless and
did not amount to the denial of a FAPE. The ALJ determined
that Parents still had the opportunity to participate in the “due
process hearing with an expert witness prepared to provide a
knowledgeable opinion about the proposed placement.” The
ALJ noted that Dr. Lenington admitted during her testimony
that she “was still able to develop opinions about the [Palisade
program], advise the parents regarding [Palisade], and give
informed testimony at the hearing regarding the [Palisade pro-
gram].” Moreover, “given Dr. Dores’ [(the District’s expert)]
extensive knowledge about the [Palisade program], [the ALJ
believed that] an additional 70 minutes of Dr. Lenington’s
observations likely would not have significantly affected the
weight given to her testimony regarding the appropriateness
of the [Palisade program].”
Ultimately, the ALJ did not find a procedural or substantive
violation of the IDEA that would allow Parents to receive
reimbursement of the costs of in-home care after April 7,
If the parent or guardian obtains an independent educational
assessment at private expense, the results of the assessment shall
be considered by the public education agency with respect to the
provision of free appropriate public education to the child, and
may be presented as evidence at a due process hearing pursuant
to Chapter 5 (commencing with Section 56500) regarding the
child. If a public education agency observed the pupil in conduct-
ing its assessment, or if its assessment procedures make it per-
missible to have in-class observation of a pupil, an equivalent
opportunity shall apply to an independent educational assessment
of the pupil in the pupil’s current educational placement and set-
ting, and observation of an educational placement and setting, if
any, proposed by the public education agency, regardless of
whether the independent educational assessment is initiated
before or after the filing of a due process hearing proceeding.
(Emphasis added.)
1770 L. M. v. CAPISTRANO USD
2005. The ALJ also declined to find that L.M. is entitled to
prospective placement with his current providers since she
determined that the District’s proposed IEP amounted to a
substantively viable FAPE.
Parents challenged the ALJ’s decision to the United States
District Court for the Central District of California. Primarily
at issue in this appeal is whether the district court clearly
erred in reversing the ALJ’s finding of harmlessness with
regards to the District’s technical violation of section
56329(c). The district court concluded that the limitation
amounted to more than a “mere technical violation” since it
“constitute[d] a procedural violation of the IDEA by depriv-
ing [Parents] of the right to meaningfully participate in the
IEP process.” By limiting Dr. Lenington’s ability to observe
the Palisades program, the District “frustrated the purpose of
Cal. Edu. Code § 56329 by denying [Parents] the opportunity
to gather evidence regarding the appropriateness [of] placing
[L.M.] at Palisades.” The district court ordered the District to
reimburse Parents for the cost of all in-home services received
between January 22, 2005, until the date the District properly
prepared an IEP. The district court remanded the case to the
ALJ for a determination on the reimbursement amount. The
District timely appealed.7
II
A party aggrieved by the findings and decision of an ALJ
in a due process hearing may seek review through a civil
action in United States district court. 20 U.S.C. § 1415(i)(2).
The IDEA provides that in reviewing a due process hearing,
the district court:
[1] shall receive the records of the administrative
proceedings;
7
Including attorneys’ fees, the District was ultimately ordered to pay
approximately $215,000 to Parents. In appeal No. 07-55585 and No. 07-
56373, the District appeals the district court’s award of attorneys’ fees.
L. M. v. CAPISTRANO USD 1771
[2] shall hear additional evidence at the request of
a party; and
[3] basing its decision on the preponderance of the
evidence, shall grant such relief as the court
determines appropriate.
20 U.S.C. § 1415(i)(2)(C).
In reviewing administrative decisions, the district court
must give “due weight” to the state’s judgments of education
policy. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206 (1982); County of San Diego v.
Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1466 (9th
Cir. 1996). In recognition of the administrative agency’s
expertise, the court “must consider [the agency’s] findings
carefully and endeavor to respond to the hearing officer’s res-
olution of each material issue.” County of San Diego, 93 F.3d
at 1466 (internal quotation marks omitted). Although the dis-
trict court “is free to determine independently how much
weight to give the administrative findings” the “courts are not
permitted simply to ignore [them].” Id. (internal quotation
marks omitted). A district court shall accord more deference
to administrative agency findings that it considers “thorough
and careful.” Capistrano Unified Sch. Dist. v. Wartenberg, 59
F.3d 884, 892 (9th Cir. 1995). The ALJ’s twenty-page Opin-
ion certainly meets that standard in our judgment. We review
for clear error a district court’s findings of fact in an IDEA
case. Id.III
[1] The IDEA assures that all disabled children receive a
FAPE through IEPs. 20 U.S.C. § 1400(d)(1)(A). As a part of
their FAPE, the IDEA guarantees certain procedural safe-
guards for the disabled child and his or her parents. 20 U.S.C.
§ 1415(a); W.G. v. Bd. of Trs. of Target Range Sch. Dist. No.
23, 960 F.2d 1479, 1483 (9th Cir. 1992) (“Target Range”),
1772 L. M. v. CAPISTRANO USD
superseded by statute on other grounds by Individuals with
Disability Education Act Amendments of 1997, Pub. L. 105-
17, § 614(d)(1)(B), 111 Stat. 37. “Central among the safe-
guards is the process of developing an [IEP] for each child.”
Id. (citing 20 U.S.C. §§ 1401(a)(18)(D), 1412(1)); see also
Rowley, 458 U.S. at 181 (stating that in reviewing an IDEA
case, a court must first determine whether “the State complied
with the procedures set forth in the Act”).
[2] Procedural flaws in the IEP process do not always
amount to the denial of a FAPE. Target Range, 960 F.2d at
1484; see also M.L. v. Federal Way Sch. Dist., 394 F.3d 634,
652 (9th Cir. 2005) (plurality) (Gould, J., concurring) (citing
28 U.S.C. § 2111). Once we find a procedural violation of the
IDEA, we must determine whether that violation affected the
substantive rights of the parent or child. M.L., 394 F.3d at 652(Gould, J., concurring); Target Range, 960 F.2d at 1484; see
also Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d
1072, 1079-80 (9th Cir. 2003), superseded on other grounds
by 20 U.S.C. § 1414(d)(1)(B) (2003); Amanda J. v. Clark
County Sch. Dist., 267 F.3d 877, 891-92 (9th Cir. 2001).
“[P]rocedural inadequacies that result in the loss of educa-
tional opportunity, or seriously infringe the parents’ opportu-
nity to participate in the IEP formulation process, clearly
result in the denial of a FAPE.” Target Range, 960 F.2d at
1484 (citations omitted). Here, Parents do not contend that by
limiting Dr. Lenington’s ability to observe, the District caused
“a lost educational opportunity.” Therefore, we are concerned
only with whether the procedural violation “significantly
restricted” Parents’ participation in the IEP process. See M.L.,
394 F.3d at 653 (Gould, J., concurring); Target Range, 960
F.2d at 1484.
[3] California Education Code section 56329(c) provides
that “[i]f a public education agency observed the pupil in con-
ducting its assessment . . . an equivalent opportunity shall
apply to an independent educational assessment” for the par-
ents with regards to observation of the proposed educational
L. M. v. CAPISTRANO USD 1773
placement and setting. The purpose of section 56329(c) is to
level the playing field between the parents and a more knowl-
edgeable school district. Benjamin G. v. Special Educ. Hear-
ing Office, 131 Cal. App. 4th 875, 881 (Cal. Ct. App. 2005).
“IDEA acknowledges the fact that school districts have better
access to information and more educational expertise than
parents and thus provides for a ‘due process’ hearing to ‘level
the playing field’ by permitting the parents to present all the
evidence they can muster to challenge the district’s decision.”
Id. “To that end, IDEA gives the child and his parents the
right to be advised by experts, to have those experts testify at
their due process hearing, and to have someone other than a
district employee as a hearing officer.” Id.The ALJ concluded that the District’s time limitation, while
a violation of California Education Code section 56329(c),
did not so undermine the statute’s purpose as to deprive Par-
ents of their right to participate in the due process hearing
with an independent, knowledgeable expert. Indeed, as Dr.
Lenington testified, even with the time limitation, she was
still able to develop opinions, advise Parents, and give
informed testimony at the hearing. Having heard all of the
live testimony, and having concluded that the District’s expert
—who had extensive knowledge about the Palisade program
—was more credible, the ALJ concluded that an additional
seventy minutes of observation “likely would not have signifi-
cantly affected the weight” she gave to Dr. Lenington’s testi-
mony.
Despite concluding that the ALJ’s careful and thorough
opinion deserved “substantial deference,” the district court
rejected the ALJ’s assessment and held that the District’s pro-
cedural violation deprived Parents of their right to “meaning-
fully participate in the IEP process.” Relying on Benjamin G.,
the district court held that the District “not only technically
violated [section 56329],” it “also frustrated the purpose of
[that section] by denying [Parents] the opportunity to gather
evidence regarding the appropriateness [of] placing [L.M.] at
1774 L. M. v. CAPISTRANO USD
Palisades.” According to the district court, this arose to more
than a “mere technical violation” because some of the most
important procedural safeguards are those that protect a par-
ent’s right to participate. The district court also noted that the
ALJ concluded Dr. Lenington was “ ‘not particularly familiar
with [Palisades] or other components of the District’s pro-
gram, and thus [her] testimony regarding the District’s pro-
gram carried less weight than that of [the District’s expert,]
Dr. Dores, who helped to design the program and continues
to supervise it.’ ” Although the district court did not disagree
with the ALJ’s assessment of the knowledge and credibility
of the witnesses, it disagreed with the ALJ’s conclusion that
the procedural violation did not deprive Parents of their right
to “meaningfully participate in the IEP process.”
[4] The district court misconstrued the ALJ’s findings, and
in doing so, it failed to properly apply the harmless error anal-
ysis required by our precedent. Not all procedural flaws result
in the denial of a FAPE. We have never adopted as precedent
the structural defect approach discussed by Judge Alarcón in
M.L. v. Federal Way School District, 394 F.3d 634 (9th Cir.
2005) (plurality). See id. at 652-52 (Gould, J., concurring).
Our precedent is clear: a procedural violation may be harm-
less, and we must consider whether the procedural error either
resulted in a loss of educational opportunity or significantly
restricted parental participation. Id.; Shapiro, 317 F.3d at
1079-80; Amanda J., 267 F.3d at 891-92; Target Range, 960
F.2d at 1484.
[5] Although the district court properly recognized that Par-
ents have a substantial right to participate in the IEP process,
it neglected to consider whether Parents’ right was signifi-
cantly affected by the District’s procedural violation. In an
action for judicial review of an administrative decision, the
burden of persuasion rests with the party challenging the
ALJ’s decision. Clyde K. v. Puyallup Sch. Dist., No. 3, 35
F.3d 1396, 1399 (9th Cir. 1994), superseded on other grounds
as recognized in M.L., 341 F.3d at 1063 n.7. Parents fail to
L. M. v. CAPISTRANO USD 1775
present any evidence that undermines the ALJ’s credibility
findings, or proffer any evidence that they could have found
had they received more classroom observation time. Dr. Len-
ington could have gone back on other occasions for more
twenty-minute visits. Dr. Lenington also conceded that she
was able to provide Parents with an informed and independent
opinion, and Parents presented the opinion of Dr. Lenington
during the due process hearing. Having heard all of the testi-
mony, the ALJ determined that there was likely nothing Dr.
Lenington could have discovered during an additional seventy
minutes of observation time that would have changed the
ALJ’s ultimate opinion that placement in Palisade was appro-
priate for L.M. Because we conclude that there is nothing in
the record to support a finding that the procedural flaw during
the development of L.M.’s IEP deprived Parents of their right
to meaningfully participate in the due process hearing, we
conclude that the district court’s finding to the contrary was
clearly erroneous.8
IV
[6] Parents challenge the district court’s denial of a “stay
put” order pursuant to 20 U.S.C. § 1415(j). The “pendent
placement” or “stay put” provision requires the child to
remain in his “current educational placement” during the
course of administrative and judicial proceedings. Id.;
Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 82 (3d Cir.
1996). Section 1415(j) states:
Except as provided in subsection (k)(4) of this sec-
tion, during the pendency of any proceedings con-
ducted pursuant to this section, unless the State or
local educational agency and the parents otherwise
8
Because we reverse the district court’s underlying order granting Par-
ents reimbursement for a procedural violation, we vacate the order grant-
ing Parents attorneys’ fees as the prevailing party (Nos. 07-55585/07-
56373).
1776 L. M. v. CAPISTRANO USD
agree, the child shall remain in the then-current edu-
cational placement of the child, or, if applying for
initial admission to a public school, shall, with the
consent of the parents, be placed in the public school
program until all such proceedings have been com-
pleted.
[7] The IDEA does not define the phrase “current educa-
tional placement.” Courts have generally interpreted the
phrase to mean the placement set forth in the child’s last
implemented IEP. Johnson v. Special Educ. Hearing Office,
287 F.3d 1176, 1180 (9th Cir. 2002) (“typically the placement
described in the child’s most recently implemented IEP”);
Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th
Cir. 1990) (“[the placement at the time of] the previously
implemented IEP”); Drinker v. Colonial Sch. Dist., 78 F.3d
859, 867 (3d Cir. 1996) (“the dispositive factor in deciding a
child’s ‘current educational placement’ should be the [IEP]
. . . actually functioning when the ‘stay put’ is invoked.”)
(internal quotation marks and citation omitted).
[8] Alternatively, if the student has no implemented IEP
because he is applying for initial admission to public school,
the parents may consent to the student being placed in public
school during the pendency of administrative proceedings. In
that case, even if the parents disagree with the school’s initial
proposed placement, the public school becomes the child’s
“current educational placement” for purposes of a “stay put”
action. See 20 U.S.C. § 1415(j).
[9] L.M. does not fit into either of these common “current
educational placement” categories. First, he never had an
implemented IEP. The District and Parents never agreed on a
placement for L.M. Second, at the time this litigation com-
menced, L.M. was making his initial application for public
school. But rather than consenting to L.M. being placed in a
public school for the duration of the litigation as provided for
L. M. v. CAPISTRANO USD 1777
in § 1415(j), Parents unilaterally placed L.M. in a very expen-
sive private program.
Therefore, Parents’ only viable argument for entitlement to
“stay put” is to construe the district court’s March 13, 2007,
reimbursement order as creating a “current educational place-
ment” implied by law. Clovis Unified Sch. Dist. v. Cal. Office
of Admin. Hearing, 903 F.2d 635, 641 (9th Cir. 1990) (per
curiam) (discussing Sch. Comm. of the Town of Burlington v.
Mass. Dep’t of Educ., 471 U.S. 359 (1985), and concluding
that “once the State educational agency decided that the par-
ents’ placement was the appropriate placement, it became the
‘then current educational placement’ within the meaning of
section 1415”); see Mackey, 386 F.3d at 163 (“ ‘once the par-
ents’ challenge [to a proposed IEP] succeeds . . . , consent to
the private placement is implied by law, and the requirements
of § 1415(j) become the responsibility of the school dis-
trict.’ ” (alterations in original) (quoting Bd. of Educ. v.
Schutz, 290 F.3d 476, 484 (2d Cir. 2002)). Where the agency
or the court has ruled on the appropriateness of the educa-
tional placement in the parents’ favor, the school district is
responsible for appropriate private education costs regardless
of the outcome of an appeal. Clovis, 903 F.2d at 641.
[10] Parents argue their private placement is L.M.’s “cur-
rent educational placement” because they prevailed before the
district court in their procedural challenge. See Mackey, 386
F.3d at 163. However, in each of the cases where a court
implied a “current educational placement,” the court or
agency below had expressly deemed the private placement
appropriate. In Mackey, a State Review Officer (“SRO”) con-
sidered the two plans, found the public placement inappropri-
ate, and concluded the student’s needs were met at the private
school the parents had chosen. 386 F.3d at 162. In Clovis, the
administrative hearing officer explicitly found the private hos-
pital placement was appropriate. 903 F.2d. at 639. In Schutz,
the hearing officer made a “determination that the services
selected by the parents were appropriate.” 290 F.3d at 484-85.
1778 L. M. v. CAPISTRANO USD
On the basis of those findings on the merits, the reviewing
courts could imply “current educational placements” for the
purpose of § 1415(j). The Mackey court reasoned that “[t]he
regulations provide that a child’s current placement may be
changed upon agreement between the parents and the state,
and that an SRO decision that ‘agrees with the parents that a
change of placement is appropriate . . . must be treated as
such an agreement.’ ” 386 F.3d at 163 (quoting 34 C.F.R.
§ 300.514(a) and (c)). The court concluded Mackey’s pen-
dency placement changed “once the SRO rendered a deci-
sion.” Id. In Clovis, we concluded the school district was
responsible for maintaining the student in that placement
“after the administrative decision that the placement was
appropriate.” 903 F.2d at 641. Similarly, the Second Circuit
held in Schutz that § 1415(j) applied because the parents had
successfully challenged the proposed IEP and the services
chosen by the parents were appropriate. 290 F.3d at 484-85.
[11] That did not occur here because, in reviewing the
ALJ’s decision, the district court found the procedural viola-
tion to be structural and ordered the specific relief requested
by Parents without ever “adjudicat[ing] the appropriateness of
[L.M.’s] private placement.”9 In its May 15, 2007, Order
denying the stay put injunction, the district court reiterated
that it had not ruled on the merits of L.M.’s placement.
[12] Unlike in Mackey, Clovis, and Shutz, the district court
9
L.M. points to language in the district court’s opinion indicating “the
private in-home services . . . were appropriate, under the circumstances”
to support his argument that the court did rule on the merits of his place-
ment. He takes this language entirely out of context. In that section of its
opinion, the district court addressed the right to reimbursement under sec-
tion § 1412(a)(10)(c), which permits reimbursement if the child has
received “some educational benefit.” The district court deemed the private
placement “appropriate under the circumstances” only in the sense that
L.M. had received some educational benefit entitling Parents to reimburse-
ment for the one year for which they actually sought relief. It has no bear-
ing on the merits of the two programs for purposes of § 1415(j).
L. M. v. CAPISTRANO USD 1779
here made no determination from which we can imply L.M.’s
private program is his “current educational placement.”
Unless the district court or agency actually reaches the merits
of the appropriate placement, we will not imply a “current
educational placement” for purposes of § 1415(j).
[13] Because L.M.’s private program, chosen by his parents
alone, does not qualify as a “current education placement”
under § 1415(j), the “stay-put” provision does not apply and
the district court properly denied Parents’ motion.
V
The district court neglected to give the ALJ’s careful and
thorough assessment of the harmlessness of the District’s pro-
cedural violation the substantial deference it deserved. Parents
participated in the due process hearing with an informed,
knowledgeable, independent expert. There is nothing in the
record to suggest that an additional seventy minutes of contin-
uous observation time would have provided any information
that would have undermined the ALJ’s credibility findings.
Because the district court failed to consider whether Parents’
substantial rights were significantly affected, and because
there is nothing in the record to support a conclusion that they
were, we conclude that the district court’s factual findings
were clearly erroneous. We reverse the district court’s reim-
bursement order (No. 07-55469) and vacate its award of attor-
neys’ fees (Nos. 07-55585/07-56373). We affirm the district
court’s denial of a “stay put” order (No. 07-55758). Each
party shall bear its own costs on appeal.
REVERSED (No. 07-55469); VACATED (Nos. 07-
55585/07-56373); AFFIRMED (No. 07-55758).