San Diego Unified School District (SDUSD) has been involved in numerous due process hearings over the past five years where parents sought private school or non-public school (NPS) placements for their special-needs children. Outcomes have been mixed, but a clear pattern is that SDUSD often prevails when it can show it offered an appropriate program (a “FAPE” – Free Appropriate Public Education) in-district, whereas parents prevail in cases where the district’s offer or services were demonstrably inadequate.
For example, in a November 2022 case, parents who had unilaterally placed their deaf/hard-of-hearing child in a private program sought reimbursement, but the Administrative Law Judge (ALJ) found SDUSD’s public placement offer was appropriate. The ALJ concluded the student failed to prove any denial of FAPE by the district, and therefore the IDEA “excuses a local educational agency from paying for the cost of education of a disabled child if that agency made a FAPE available…and the parents elected to place the child in a private school” (OAH CASE NO. 2022060214, PARENTS ON BEHALF OF STUDENT, v. SAN DIEGO UNIFIED SCHOOL DISTRICT | IEP Law Firm PC). All of the parents’ claims were denied in that case, with SDUSD prevailing on every issue (ibid.). This reflects a common outcome: if SDUSD’s IEP and placement offer is deemed sufficient, hearing officers will not order the district to fund a private placement.
On the other hand, parents have succeeded in due process when they proved SDUSD’s program failed to meet the student’s needs, especially if the district overlooked significant supports or violated procedural safeguards. A notable example came in August 2021, involving a young student with multiple disabilities during the COVID-19 pandemic. SDUSD had offered only virtual instruction and a constrained health plan, which effectively isolated the student, who could not tolerate mask-wearing. The parents placed the child in a private preschool with in-person services and an ABA-trained aide. The ALJ found SDUSD denied FAPE on multiple grounds – failing to offer critical services (like ABA therapy and social pragmatic goals), predetermining the child’s placement without parental input, and not providing accommodations to allow the child to learn alongside peers (OAH Case No. 2021050118, Parent v. San Diego Unified School District | IEP Law Firm PC). Because these violations deprived the child of educational benefit at a pivotal developmental stage (ibid.), the ALJ ordered extensive remedies. SDUSD was ordered to reimburse the family’s out-of-pocket costs for the private preschool and therapies (over $11,000) and to fund additional services (independent assessments, IEP revisions, etc.). This case illustrates that when SDUSD’s in-house program fell short – here, by not offering any in-person, appropriate setting during remote learning – the district not only lost the due process case, but was compelled to fund the private placement and services as compensatory relief (ibid.).
In these hearings, SDUSD typically argues that it offered an appropriate placement and services such that a private placement is unnecessary. The district often emphasizes the Least Restrictive Environment (LRE) mandate – preferring to keep students in public-school settings with supports rather than segregating them in private schools. It will point to any progress the student made in district programs or argue that the private placement is too restrictive or not significantly better. In the 2022 deaf/hard-of-hearing student case, for instance, SDUSD noted the child was succeeding academically in the private school even without certain supports the parents insisted on, to show that its own offered program was adequate (OAH CASE NO. 2022060214, ibid.).
SDUSD also invokes legal authority that once parents unilaterally enroll a child in private school, the district’s obligations change – a child parentally placed in private has “no individual entitlement to a FAPE” unless the parents actively seek services. On the other side, parents’ arguments usually contend that SDUSD’s proposed IEP was not reasonably calculated to confer an educational benefit (as required by Endrew F.) – for example, lacking needed 1:1 supports, specialized instruction, or an appropriate peer environment – and thus the parents had to seek an NPS. Parents often bring in independent evaluations or expert testimony to show the child could not make progress in the district’s program but has thrived in the private setting (ibid.). They also argue procedural violations (such as SDUSD predetermining a placement or failing to consider parent input) that result in denial of FAPE. In the 2021 case, the parents showed the district had effectively predetermined the child’s placement by making services contingent on accepting a restrictive health plan, which the ALJ agreed was a serious procedural violation that denied the parents a meaningful say (ibid.). When parents win, it’s often by combining evidence of the child’s unmet needs with proof that SDUSD either ignored critical information or placed administrative convenience over the student’s rights.
A key trend in the last five years is the impact of the Ninth Circuit’s Capistrano Unified School District v. S.W. decision (2021) on these cases. After Capistrano, if a student is enrolled in a private school by parents, a district is not obligated to develop new IEPs or keep offering placement unless the parents request an IEP or indicate interest in returning. SDUSD has leveraged this precedent. In a March 2023 SDUSD due process decision, the ALJ, citing Capistrano and federal regulations, agreed that “private school children with disabilities do not have an individual entitlement to a FAPE.” In that case, the student had been privately placed by the parent for over a year, and the ALJ ruled SDUSD was not required to offer an IEP or placement during that period.
Another trend is that ALJs scrutinize whether SDUSD made a “clear and specific” written offer of placement and services in the IEP. This comes from the Union School Dist. v. Smith precedent (9th Cir. 1994) requiring clarity in IEP offers. Indeed, in the 2021 case the ALJ found SDUSD violated FAPE in part by “failing to make a clear and specific offer of a FAPE” in the IEP documents (ibid.). Such rulings underscore a pattern: SDUSD’s procedural missteps (e.g. vague IEPs, lack of parental participation, or predetermination) can tip the scales in favor of parents. However, absent those missteps, the default trend is that SDUSD’s placement decisions are often upheld by OAH. In summary, SDUSD’s record shows a strong defense of its in-district programs – the district wins a significant number of due process cases, especially after 2021, while parents tend to win only when they present compelling evidence of SDUSD’s program failing to provide FAPE.
Given this track record, a parent challenging SDUSD’s denial of a private/NPS placement faces an uphill battle. SDUSD’s success rate in recent years suggests that, in a typical case, the district is more likely than not to prevail unless there are clear deficiencies in the district’s offer. Hearing decisions show that when SDUSD has followed the rules – conducting evaluations, convening IEPs with parents, and offering a placement with appropriate supports – hearing officers often side with the district’s judgment that the student can be served in-district.
For instance, when SDUSD offered a program and the parents simply preferred a private school, OAH refused to shift the cost to the district, invoking the principle that no reimbursement is due if the public school offer was appropriate and the parents “elected to place the child in a private school or facility” despite that offer (OAH CASE NO. 2022060214). Courts have similarly upheld SDUSD in such scenarios. In L.B. v. San Diego Unified School District (2023), a federal judge affirmed an ALJ’s decision in SDUSD’s favor, noting it was “careful and thorough.” The court denied the parents’ appeal and gave deference to the ALJ’s conclusion that SDUSD had not violated the student’s rights (ibid.). In practical terms, if SDUSD can demonstrate that its IEP was reasonably calculated to enable progress (Endrew F. standard) and was offered in a timely, clear manner, the likely outcome is that a due process hearing will uphold the district’s decision and deny an outside placement at public expense.
However, certain patterns in rulings indicate when a parent’s case is more likely to succeed. Parents have a stronger chance if they can show “systemic” or repeated issues with SDUSD’s handling of the case – for example, if SDUSD ignored a child’s known needs, failed to implement parts of the IEP, or refused to consider less restrictive alternatives. Evidence of SDUSD predetermining a placement or refusing to discuss an NPS can be powerful; ALJs consider such predetermination a serious procedural violation that denies parental participation. In one case, SDUSD made the implementation of services contingent on the parents accepting its chosen placement (essentially giving parents no real choice), which the ALJ found unlawful (ibid.). Patterns like these – e.g. multiple families complaining that SDUSD “rubber stamps” in-district placements without genuine IEP team consideration – can influence an ALJ or judge by showing a broader lack of good faith by the district. Additionally, any failure to provide services during critical periods (such as during COVID shutdowns) or delay in evaluating a student can tilt the outcome.
Thus, the likely outcome of a new due process case will depend on the specifics: if a child’s needs are clearly not being met in SDUSD (and the parents have assessments or data to prove it), the parents stand a chance of winning – potentially obtaining an order for private placement or reimbursement. If, on the other hand, SDUSD has papered its case well – offering an IEP reasonably aligned with the child’s needs and following proper procedures – then the district’s record suggests the hearing officer would find in its favor.
It’s also important to consider the impact of Capistrano (2021) on likely outcomes. Under that precedent (binding in California’s Ninth Circuit), if a student was already moved to private school by the parents without collaboration, SDUSD is not obligated to keep making offers once the child is no longer enrolled in public school. SDUSD’s attorneys have successfully used this argument to defend the district. For example, when parents pulled their child from SDUSD and later argued the district failed to offer an IEP or placement during the private enrollment, the case was dismissed – the courts held that “when a child has been enrolled in private school by her parents, the district only needs to prepare an IEP if the parents ask for one.” Therefore, a parent who unilaterally leaves SDUSD and then files due process may face the outcome that no relief is granted for the time the child was in private school unless the parent gave SDUSD a chance to hold an IEP meeting.
Overall, SDUSD’s record shows it often has the upper hand. A fair assessment is that a due process challenge will likely favor SDUSD by default, and a parent’s best chance at a favorable ruling is if they can fit their case into the pattern of the rarer past parent victories – i.e. demonstrating significant inadequacies or procedural errors in SDUSD’s offer.
SDUSD, like most school districts, has strong incentives – financial, policy-driven, and administrative – to deny or limit placements in non-public schools. Understanding these incentives sheds light on why the district often resists private placement requests:
Every student that SDUSD places in an NPS or private program represents a substantial cost to the district. Tuition at specialized private schools (and related services like therapy and transportation) can run tens of thousands of dollars per year. Covering such costs for multiple students can quickly strain a public school budget. SDUSD has a fiduciary incentive to try to serve students in its own schools using existing resources (funded through state/federal special education dollars) rather than pay additional out-of-pocket tuition. Denying an NPS placement often means avoiding a hefty expense. This financial motive can subtly influence the district’s stance in IEP meetings – administrators may feel pressure to assert “we can meet the need in-district” to avert setting a costly precedent.
School districts are legally bound to consider LRE – educating students with disabilities alongside nondisabled peers to the maximum extent appropriate. An NPS is typically a more restrictive setting (composed entirely of special education students). SDUSD may genuinely believe in a philosophy of keeping students in mainstream or district-run special programs whenever possible. Thus, even apart from cost, SDUSD has an ideological/policy incentive to deny private placement if they believe they can modify a public-school program to work. This preference can be well-intentioned but sometimes leads SDUSD to overestimate its capacity rather than conceding a specialized school might be more suitable.
SDUSD operates numerous special education programs with existing staff. Keeping a student in-district allows the district to maintain control over the educational program. Placing a child in an NPS means contracting and oversight burdens. SDUSD might also fear that agreeing to NPS placements could encourage more families to seek private options, increasing overall costs. For this reason, the district may hold a hard line against NPS placement unless a child’s needs are extremely severe or well-documented.
Even when SDUSD privately recognizes a case may favor the parents, it often settles in ways short of agreeing to a formal NPS placement. For example, it might fund home-based or partial private services without formally admitting wrongdoing. This allows the district to avoid setting precedent or expanding obligations beyond one case.
In summary, SDUSD’s incentives for denying NPS placements involve finances, the mission to educate students in the LRE, and the administrative simplicity of providing in-house programs.
When parents are dissatisfied with a due process outcome or wish to address issues beyond the scope of an administrative hearing, they have legal options in state or federal court:
Litigation can be lengthy, but parents who build a strong factual record (multiple IEP meetings, documented attempts to collaborate, expert reports) have a better chance of success.