I'm as sympathetic as the next person to the claim that slight administrative hassles don't permit a bureaucracy to infringe fundamental rights. Probably more so.
That's especially the case when it comes to kids and their right to an appropriate education. That's important. Parents should be involved. A school bureaucracy shouldn't be allowed to use picayune administrative excuses to deprive a parent of their right to be involved in the education that's given to their child.
For this reason, you might think that I'd greet today's Ninth Circuit opinion with a big "Hallelujah." Since that's what it squarely holds.
That was not, however, my reaction.
At some point, a parent simply goes too far, and administrative reasons are a legitimate basis to move forward without the parent. And in my mind, this case exemplifies the point. Or at least comes darn close in a way the Ninth Circuit doesn't recognize.
Here are the facts. To which -- it bears mention -- everyone substantially agrees.
Spencer C. has an IEP in Maui, and his father (Doug C.) wants to be consulted about where Spencer gets placed in school. That's their right. It's a good thing. As a result, there needs to be a meeting at which Doug and the school administrators discuss where Spencer should be placed. Fair enough.
Federal law imposes strict guidelines on this issue. You've got to do an IEP once a year. Spencer's eighteen years old, so we've got to figure out where's going to go. Spencer's one-year deadline ends on Saturday, November 13th. Pursuant to federal law, a decision on Spencer has to be made by then. So, necessarily, the meeting with his father (Doug) needs to happen by then. Makes sense.
The support team -- and we're talking about a dozen or so school teachers and administrators that are involved in the decision about what services Spencer needs -- first talks with Doug in September. A date two months before the deadline. Everyone, including Doug, agrees to have the final meeting on October 28. Plenty of time to meet the deadline two weeks later. Let's write that down:
(1) October 28.
The school people testify that this was a "firm" date. But Doug says it was only "tentative." Based on my personal experience -- as well as what transpires later -- I'm pretty darn confident that I believe the school. But let's put that to one side. There's an October 28 meeting date.
On October 22, the school calls Doug -- very kindly -- to remind him about the meeting. At which point he says: "Can't make it." Why? Whatever. Okay. So we'll reschedule. Everyone then agrees that they'll meet on November 4 or 5 (there's disagreement about which date was chosen). Mind you, that means that the dozen or so school people who were supposed to be at the October 28 meeting now have to change their schedules. But okay. We'll accommodate the parent's preferences and/or whim. Still plenty of time to meet the deadline. Let's write this one down too:
(2) November 4/5.
The next day, Doug calls the school. He again interprets the November 4/5 date as "tentative" and says that, nope, he's not free on that date either. So the school says: "Well, when will you be free?" He says November 9. Fair enough. November 9 it is. We'll rearrange everyone's schedule again. Everyone, including Doug, agrees that November 9 is a firm date. Four days before the deadline.
Let's write it down again:
(3) November 9.
Can you guess what happens on November 9? Of course you can. Doug e-mails the school at 7:27 a.m. He says he's "sick" and can't make it. Of course.
So now what does the school do? They've got four days until the statutory deadline. They're facing a parent who's missed/blown off/couldn't attend/rescheduled multiple meetings. They've got to get a dozen people in a room, with a parent who doesn't seem able to actually attend any of the dates they have set. Oh, and they've already got the dozen school people assembling later that day to meet what was the admittedly "firm" date four days before the deadline.
Does the school at that point simply tell the parent to fork off? No. It doesn't. It tells the parent: "Look, we've got to do this thing by November 12. That's the law. It's now November 9, and you advise us at 7:27 a.m. that you can't make it. What about tomorrow, November 10? Or the next day, November 11? We can't do it on Friday, November 12, because some of the people who need to be there can't make it that day (having repeatedly rearranged their schedules on multiple times already). Which of November 10 or 11 works for you?" I'll write those down too:
(4) November 10/11.
At which point Doug says: "I don't know. I can't schedule anything. I'm sick. Who knows if I'll be available on those days?"
At that point, what's the school supposed to do? Blow the deadline? That's not only bad for Spencer, but a good way to be sued. Set a new meeting for November 11? Doug's already said he's unable to commit to be there that day, since he might still be sick. November 12? For the same reasons, Doug might still be "sick" that day too, and not everyone's available anyway. Which presumably matters, as we want the right decision at the meeting, which means that everyone with information should be there. Which, maximally, includes Doug. But he's already blown off/rescheduled multiple meetings, and can't commit to attending any before the deadline.
So the school does what it thinks it has to. It conducts the meeting as "firmly" scheduled on the 9th, and gets in a plan as required by law on the 12th. They're then finally able to meet with Doug on the 7th of December, and at that point, Doug attends the meeting (finally!), but refuses to substantively participate, claiming that the school screwed him by conducting the earlier meeting without him.
Doug then sues. The administrative tribunal and the district court find for the school, holding that it didn't do anything wrong.
The Ninth Circuit reverses.
Judge Paez says that the school district was "clearly unreasonable" in not including Doug at its meeting. Again, I'm partially sympathetic, and definitely want Doug to be included. But Doug's repeatedly flaked. Repeatedly rescheduled. What's the school supposed to have done?!
Judge Paez says that the school improperly refused to schedule the meeting for November 10 or 11. Seriously? Doug expressly said he might well still be "sick" either of those days. Judge Paez seems to say that the school should have nonetheless schedule a meeting for either (or both) of those days, gotten the 13 school people together in a room, and waited for the (likely inevitable) last-minute e-mail. I find that unreasonable. Parental involvement matters. But so does administrative burden. When a parent expressly says he can't commit to showing up at a meeting on a particular day, having already missed a meeting one or two days earlier, I don't think it's unreasonable not to have a dozen employees sitting around in the almost certainly vain hope that the parent decides to make it that day.
Judge Paez also says that the school improperly refused to schedule the meeting for November 12. Really? Not only were some important participants unvailable, but if Doug could not commit to showing up on November 10 or 11 -- as he expressly said -- because be "might still be sick," why in the world would the school have any reason to think that things would be any different a single day later? It boggles the mind to think that Doug would say: "I'm 'sick' to can't promise I'll make it on the 10th or 11th, since I might still be sick, but don't worry, I'm positive I'll be better on the 12th." Paticularly given the history described above.
If Doug was a doctor, or hadn't flaked on multiple prior meetings, or the school had any reason to believe that Doug's "sickness" as a one-time thing, that'd be something. In particular circumstances, when an IEP meeting is coming up, I could well see a parent saying "I've got a cold, so I'm sorry I can't make it today, but don't worry, I should be better by Friday at the latest, and come hell or high water, I'll make it." In those circumstances, yeah, I'm totally on board for the school having to do a meeting on Friday, the day before the deadline. Regardless of whether everyone could be there.
That ain't this case. By a longshot.
Judge Paez finally says that the school could have just ignored the statutory deadline, and done the meeting thereafter. This part, surprisingly enough, isn't crazy. I think that in some cases, that's right. The school would potentially be opening itself up to liability, so I don't think it's an awesome choice, or that the decision to avoid such a consequence would be unreasonable. But, yeah, in a particular case, I get Judge Paez's point. So the meeting's a couple of days late. Big deal. Just get the parent involved. As long as delaying the meeting won't harm the child, a couple of days won't matter.
Here's the thing, though. I'm not sure that this is the best case -- or potentially, even an appropriate one -- in which to make such a holding. Because there was ample reason for the school to think that the issue was not about a "couple of days" or so. Doug had been blowing off meetings for a month. There was absolutely no reason to think that he'd show up for a "firm" meeting on, say, November 16th any more than the "firm" meeting on November 9 or, prior to that, the one in October (which he interpreted as "tentative"). Given Doug's history, the school district could quite reasonably, in my view, think that there was simply no way of knowing when, if ever, Doug would show up. That's a sufficient basis, at least for me, for the school to conclude that Doug had effectively "affirmatively declined" to attend the required IEP meeting. End of story.
At an absolute minimum, I think it's overboard to hold -- as the Ninth Circuit does -- that the school district "clearly" acted unreasonably and violated the IDEA. Couldn't a reasonable factfinder decide, on an appropriate record, that Doug was perhaps not really "sick" on November 9, but was instead making excuses just like he had repeatedly done previously? Couldn't a reasonable factfinder hold that the school district, when faced with a difficult decision, acted reasonably, given that there was no certainty that Doug would ever actually show up for a meeting? There seem to be lots of fact issues here. And I'm bummed that they're decided the way the Ninth Circuit implicitly decides them. Even more so since, were I the factfinder, my initial belief, upon reading the facts of this case, would be to draw a conclusion directly opposite to the one the Ninth Circuit draws. It at least seems a question of fact. Particularly on these, somewhat egregious, facts.
(I forthrightly concede, by the way, that part of this is driven by the revulsion that Doug will almost certainly use the school district's "violation" of the IDEA to (1) obtain a potentially substantial cost and attorney fee award, and (2) get his son's private school paid for by taxpayers. I'd be fine with (2) if that were the right result. But to have it transpire not because it's in Spencer's interest, but instead potentially due to Doug's deliberate procedural manipulation of the meeting schdule, somewhat galls me.)
What's particuarly frustrating -- not only to me, but, I'm sure, even more so to the school district -- is that the district essentially did precisely what Judge Paez suggested, and indeed went forward with a successful meeting with Doug in December after he failed to show up for the scheduled meetings in October and November. I understand what Judge Paez says about that -- that, doctrinally, that does not "count" since the IEP had already been created, so the parent wasn't allowed to "participate" in the process. But it's still frustrating. Especially since that same doctrine would presumably apply equally to the statutory violation of not getting the IEP in by the statutory deadline. The district is essentially in a damned-if-you-do-damned-if-you-don't dilemma. They've got to provide a plan and services by the deadline, so they have to decide on what those services are, and if they don't, they get sued (and the child suffers). But if they follow that rule, and do indeed decide by the deadline, then they get sued by a come-lately parent even after they follow the Ninth Circuit's advice and say "Well, we decided by the deadline, but we still want your input," even when the parent says (as Doug did in this case) "Screw you. You violated the statute by not including me. I'm not talking to you."
Not my sense of justice.
Really, truly, and sincerely: I could not appreciate and agree more with the sentiment expressed by Judge Paez's opinion. But even someone as sympathetic as I am is unsure that this sentiment is the appropriate response to this case.
