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9th Circuit Opinion Affirms COPAA Argument: Schools Have an Obligation to Gather Data for FBAs/BIPs

Thursday, March 3, 2016   (0 Comments)

Today, the Ninth Circuit released its opinion in A.G. v. Paradise Valley USD, No. 13-16239.  COPAA appeared as amicus curiae to educate the court on the importance of FBAs and BIPs in evaluating and addressing behavioral needs of special education students.  The Ninth Circuit issued a favorable opinion on the issues that COPAA briefed in 2013 and argued before the Ninth Circuit last year.  

  The Ninth Circuit remanded on the following issues:

   1.       The District Court improperly dismissed AG’s meaningful access and reasonable accommodation arguments. The district court relied on the consent of AG’s parents as grounds that AG’s waived this claim.  As COPAA stated in its amicus brief, the Ninth Circuit confirmed that school districts, not parents, have the affirmative non-delegable obligation to gather data and evaluate the needs of disabled students.  The Ninth Circuit extended its prior holding in the IDEA area to section 504 claims when it said that a parent’s consent to an IEP does not waive a claim of lack of meaningful access to a public benefit.  Further, this issue required specialized expertise that AG’s parents did not have.  The school district cannot absolve itself of its duties to the child by getting the parents’ consent.

2.       Further, the District Court improperly relied on the fact that AG’s parents did not request some of the services that they later argue the district should have provided.  Again, this came down to specialized expertise, and parents cannot be expected to have the expertise – or legal duty – to determine what accommodations might allow the child to remain in her regular educational environment.

3.       The District Court improperly relied on Dr. Ferro’s opinion as to the legal issues, and whether accommodations were a legal necessity to AG.  The Ninth Circuit also recognized that Dr. Ferro, the expert in AG’s case, is not qualified to opinion on legal issues, as noted by Appellants' brief.

4.       While COPAA did not focus on the state law claims, the Ninth Circuit reversed the district court on dismissing the battery and false imprisonment claims.  The school district had been using restraints and seclusion on AG.

This opinion is a great development for both AG and for COPAA. COPAA member, Richard Murphy represented AG and the parents; special thank you to Kristen Proschold who argued the amicus position before the 9th Circuit.   Barrie L. Brejcha, Yea-Jin Angela Chang, Donna Williams, Jenny A. Austin and Angela C. Vigil were on the brief from Baker and McKenzie and wrote COPAA's brief.  Selene Almazan and Catherine Merino Reisman assisted in the review and editing for COPAA.


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