SDUSD Special Education Guide - 8. Spotlight on the Capistrano Case

7. Spotlight on the Capistrano Case

7.1 Summary of Capistrano Unified School District v. S.W. (Ninth Circuit, 2021)

In Capistrano, the court held that:

When a child is placed in private school unilaterally by the parents, the public school district’s obligation to propose or update an IEP may be limited if parents have no intention of returning to the public school system.
However, once parents indicate they are open to an IEP or public school placement, the usual IDEA requirements reapply.

7.2 Implications for SDUSD Parents

If you place your child in a private or non-public school due to SDUSD’s alleged failure, inform the district that you remain interested in receiving an appropriate IEP offer.
Avoid giving the impression that you have permanently “opted out” of public education, or SDUSD might claim it has no duty to propose an IEP.
Capistrano does not relieve the district of its obligation to consider past data, staff input, or private evaluations once it does develop an IEP.

Capistrano Unified School District v. S.W. (9th Cir. 2021) – Parent’s Guide to IEP Disputes

In-Depth Legal Analysis

Case Background and Facts

In Capistrano Unified School District v. S.W. (2021), the parents of a first-grade student (B.W.), who has autism, became dissatisfied with the educational program offered by their public school. A few months into first grade, they challenged B.W.’s kindergarten and first-grade IEPs through a due process complaint, alleging the IEPs were inadequate [2†L46-L54]. In the winter of that year, while the complaint was pending, the parents unilaterally withdrew B.W. from public school and enrolled her in a private school, stating she would remain in private placement for the rest of first grade and all of second grade [2†L48-L56][10†L75-L83]. They notified the district that they would seek tuition reimbursement for both years due to the district’s failure to provide a Free Appropriate Public Education (FAPE) [2†L49-L57]. The school district denied the reimbursement request and instead proposed holding an IEP meeting, but the parents did not respond to that offer and initially withdrew their due process complaint [10†L79-L87].

At the start of B.W.’s second-grade year (with B.W. still attending private school), the parents refiled their due process complaint, again seeking reimbursement for the private school costs [2†L52-L60][10†L81-L90]. In response, Capistrano Unified again denied that reimbursement was owed and proposed another IEP meeting [10†L81-L89]. Notably, during the period B.W. attended the private school, the district did not convene any new IEP meetings for B.W.’s second grade and did not initiate a due process hearing on its own to defend the last proposed IEP [10†L87-L92]. The parents’ complaint alleged that the district’s inactions – failing to update the IEP for second grade and failing to file a due process hearing to defend the first-grade IEP – along with the alleged inadequacy of the first-grade IEP, resulted in a denial of FAPE for their child [10†L87-L92].

Judicial Reasoning and Ninth Circuit Ruling

After an administrative hearing, an ALJ had ruled in the parents’ favor on all issues, but a federal district court later disagreed on several points. The case eventually reached the Ninth Circuit Court of Appeals, which issued a significant decision in December 2021. The Ninth Circuit panel affirmed that Capistrano Unified had denied B.W. a FAPE in first grade with respect to placement and services (a point the district did not contest on appeal, as the first-grade program was “indisputably inadequate” in that regard [1†L77-L84]). However, the Ninth Circuit reversed the findings in favor of the parents on the other key issues, ruling instead for the school district on each of those points [2†L65-L69][3†L73-L81].

The court addressed three major questions on appeal, which are especially relevant for special education disputes:

Were the IEP Goals Adequate? – Yes. The parents argued that B.W.’s first-grade IEP goals were inappropriate or insufficient. The Ninth Circuit disagreed, finding that the district had developed goals targeting B.W.’s unique needs [3†L73-L81]. The court noted that an IEP is not required to include every conceivable goal that might benefit the child, nor must it use a parent’s preferred data collection methods for progress monitoring [3†L75-L83]. What matters is that the goals address the child’s identified areas of need. The panel emphasized that while parental input must be considered, schools are not bound to defer to parents’ or private experts’ recommendations on every point [3†L75-L83].
Did the District Need to File for Due Process to “Defend” its IEP? – No. The parents contended that when they disagreed with the first-grade IEP, the school district was obligated to initiate a due process hearing to prove that its IEP offer was adequate. They relied on an IDEA procedural safeguard (mirrored in California law) that if a parent does not consent to an element of an IEP that the school believes is necessary for FAPE, the district “shall initiate” a due process hearing [6†L19-L27]. The Ninth Circuit rejected the notion that every impasse or disagreement triggers this duty [3†L81-L89]. The court clarified that the “sole trigger” for a district’s obligation to file a due process complaint is the district’s determination that lack of parental consent to a particular IEP component will result in the child not receiving FAPE [12†L115-L123].
Did the District Have to Develop an IEP for Second Grade after the Parents Placed B.W. in Private School? – No, not unless the parents requested one. This was perhaps the most consequential part of the ruling. By the time B.W. was due to start second grade, she was enrolled in a private school by her parents’ choice. The parents argued the district violated the IDEA by failing to have an IEP in place at the start of that school year. The Ninth Circuit held that when parents unilaterally enroll their child in a private school, the public school district is not obligated to continue creating new IEPs annually – unless and until the parents affirmatively request an IEP from the district [3†L90-L98]. Even though B.W.’s parents were seeking reimbursement (meaning a FAPE dispute was ongoing), the court found no automatic duty for the district to convene an IEP meeting for second grade without a parental request [3†L90-L98][29†L1-L4].

Final Ruling: The Ninth Circuit ultimately ruled in favor of the school district on all the contested issues [6†L7-L15][6†L49-L57]. In practical terms, this meant that while the district acknowledged shortcomings in the first-grade IEP’s services (entitling the family to some relief for that period), the district was not liable for failing to convene a second-grade IEP meeting or for not preemptively litigating the first-grade dispute. The case was remanded only for consideration of attorneys’ fees, since the split outcome in lower proceedings raised the question of who was the “prevailing party” to what extent [1†L55-L63]. The legal precedent set by this decision clarifies several gray areas in special education law regarding private placements. The U.S. Supreme Court declined to review the Ninth Circuit’s decision (certiorari was denied in October 2022) [28†L28-L36], so this ruling stands as the governing law in the Ninth Circuit.

Comparison to Similar Rulings and IDEA Alignment

The Capistrano decision did not arise in a vacuum; it aligns with existing provisions of the IDEA and echoes guidance from the U.S. Department of Education, while also clarifying open questions in case law:

IDEA’s Framework for Private Placements: Under the IDEA, if a public school fails to provide FAPE and parents unilaterally place their child in a private school, parents can seek reimbursement for the private education through due process [10†L69-L77]. However, the Act draws a distinction between parentally-placed private school students and those placed in private settings by the school district.
Consistency with U.S. Department of Education Guidance: In OSEP’s 2019 “Letter to Wayne,” federal regulators answered a question about a district’s obligation when a parent places a child in private school without disputing the availability of FAPE. OSEP advised that if a parent makes clear they intend to keep their child in private school, the LEA (district) “is not required to make FAPE available to the child” going forward [20†L84-L92]. However, the district must be prepared to develop an IEP again if the parent later decides to return the child to public school [20†L88-L96][20†L94-L102].
Other Court Rulings: Capistrano was a case of first impression in the Ninth Circuit on these specific issues [10†L51-L59]. However, other courts and states have grappled with similar scenarios.
Alignment with IDEA’s Safeguards and Purpose: The decision aligns with the IDEA’s procedural safeguards in that parents retained the right to due process and reimbursement for the period FAPE was denied (first grade), but it clarifies how those safeguards operate when parents choose a private alternative.

In summary, the Capistrano ruling is firmly grounded in IDEA’s provisions and policies. It underscores the balance between a child’s right to FAPE and a parent’s choice to pursue private education.

Practical Guidance for Parents

For parents, Capistrano Unified v. S.W. provides valuable lessons on how to navigate IEP disputes, especially if you are considering or have made a private school placement due to dissatisfaction with your child’s public school program. Below is step-by-step guidance and practical advice to help you maintain your rights under IDEA and make strategic decisions in light of this ruling.

Step-by-Step Actions When Placing Your Child in Private School

Raise Your Concerns and Work with the IEP Team: Before making a unilateral placement, document your concerns with the current IEP. Request an IEP team meeting to discuss the issues and allow the school a chance to address them.
Provide Ten-Day Notice of Private Placement (in Writing): If you decide to withdraw your child and enroll them in a private program, the IDEA requires that you notify the school district in advance if you intend to seek reimbursement.
Enroll in the Private School and Save Documentation: Once your child starts at the private school, save all records of tuition payments, related service costs, and any communications about your child’s program there.
Allow the School District to Evaluate (If Requested): In many cases, after a parent pulls a child from public school and requests reimbursement, the school district may ask to reevaluate the child or gather updated information.
File for Due Process to Seek Reimbursement (If Needed): If you remain convinced that the public school failed to offer FAPE and you want the district to reimburse your private school costs or provide additional services, you will need to pursue a due process hearing under the IDEA.
Stay Organized and Meet Deadlines: Throughout this process, maintain an organized file of all relevant documents: IEPs, evaluations, correspondence, notices, receipts, etc.

Maintaining Your IDEA Rights During a Private School Placement

One of the key lessons from the Capistrano case is that parents must be proactive to maintain their child’s IDEA rights if they choose a private placement. Here are strategies:

Keep the Door Open with the School District: Even though you’ve moved your child to a private school, let the district know if you are open to considering a return to public school under the right circumstances.
Request an IEP Meeting When Needed: If at any point during the private placement you are dissatisfied or even just curious what the public school can offer now, send a written request for an IEP meeting or updated evaluation.
Ensure Evaluations Stay Up to Date: Even if your child is in private school, you can request that the public school conduct the periodic reevaluations required by IDEA.
Participate in Equitable Services if Applicable: When a child is parentally placed in private school, school districts are required to spend a proportionate share of federal funds to provide some services to students with disabilities in private schools.
Know Your Child Find Rights: School districts have a continuing “child find” obligation to locate, identify, and evaluate children with disabilities in their area – including those in private schools.

Communicating Effectively with the School District (Post-Capistrano)

Clear and effective communication with the school district is vital, especially after the Capistrano ruling which places importance on parental requests. Here are some tips:

Always Communicate in Writing for Important Matters: Verbal conversations can be friendly and useful, but when it comes to significant requests or notices, follow up in writing.
Be Polite but Firm, and Reference the Law When Necessary: You can be collaborative in tone but do not hesitate to reference your rights under IDEA.
Use Prior Written Notice to Your Advantage: If the district refuses something you request, ask for a Prior Written Notice (PWN) of their refusal.
Stay Professional and Child-Focused: Keep the focus on what’s best for your child, not on personal conflict.
Document Phone Calls and Meetings: If you have phone discussions or informal meetings, consider sending a brief follow-up email summarizing what was discussed.
Consider Involving an Advocate or Attorney: If communications with the district have become contentious or complex, you might benefit from having a special education advocate or attorney help draft letters or represent you.

Broader Policy Implications

The Ninth Circuit’s decision in Capistrano Unified School District v. S.W. has implications that extend beyond this single case, influencing how school districts and parents approach IEP disputes involving private placements. Below we examine the impact on special education law and policy in California and other states, as well as potential changes or advocacy efforts that could arise in response to this ruling.

Impact on Special Education Law in California and the Ninth Circuit

Because this is a Ninth Circuit decision, it is binding precedent in all states within the Ninth Circuit’s jurisdiction. The immediate impact is a clarified legal standard regarding two key responsibilities of school districts: whether to continue developing IEPs for students who are no longer in public school, and when a district must initiate a due process hearing in the face of disagreement.

Furthermore, the decision clarifies the application of California’s own Education Code §56346(f) in light of federal law [6†L19-L27]. The Ninth Circuit’s interpretation – that the district’s duty to initiate a hearing arises only when lack of consent deprives the child of FAPE [12†L115-L123] – will guide how California districts respond to partial parent consent.

Influence Beyond the Ninth Circuit

While the ruling is directly binding only in the Ninth Circuit, other jurisdictions often look to significant appellate decisions for guidance, especially on IDEA matters where the Supreme Court has not spoken. There is a possibility that other Circuit Courts of Appeal could confront similar questions. Parent advocates in other regions might push for a different interpretation. Without a Supreme Court ruling, differences could persist, but the logic of Capistrano may well be adopted elsewhere over time.

Effects on IEP Development Procedures

This decision has prompted many school districts to reevaluate their procedural practices for IEPs:

Annual IEP Meetings: Normally required at least annually for a student in public school. Post-Capistrano, districts will likely suspend that automatic schedule for students known to be parentally placed elsewhere.
Prior Written Notice (PWN) Documentation: Districts will be careful to document the parents’ decision to reject the IEP and go private.
IEP Team Training: IEP teams may receive updated training highlighting that they should invite parents to request services if circumstances change.
Record Keeping and Transfers: If a student is parentally placed in private and later returns to public school, districts will ensure they promptly convene an IEP meeting upon re-enrollment.

Advocacy and Potential Legislative Changes

The Capistrano case raises policy questions that parent advocates and legislators might seek to address:

Ensuring Parents are Informed: One concern is that not all parents will know they need to ask for an IEP after going private.
Legislation on Continued IEP Obligation: The parents in this case essentially wanted the law to impose an affirmative duty on districts to keep offering IEPs, arguing that this would better protect children’s rights.
State-Level Protections: States could enact laws requiring districts to offer an IEP annually unless the parent opts out.
Monitoring and Data: This ruling may prompt states to monitor outcomes for kids who exit public schools.
504 Plans and Other Avenues: Families might turn to Section 504 for accommodations, but 504 does not require public schools to serve students who are not enrolled there.

In summary, Capistrano Unified School District v. S.W. is an influential case that every parent considering a private placement should understand. It reinforces that parents have the ultimate say in whether to accept or decline the public school’s offer – but with that choice comes the need to take initiative to maintain your child’s rights under IDEA.