Was there an unreasonable delay in assessing the student?

On December 5, 2016, the IEP Team in California was informed that Dr. Dyson, hired by the mother, had evaluated the student and determined that he was on the autism spectrum. The student was already receiving special education services, but had never been assessed for autism. Now a reputable source has indicated that the student has this condition. Does this information trigger a duty for the district to do its own evaluation of the student?

The 9th Circuit held that it does.

Next question: if the district waits until the following April to propose such an evaluation has the district dilly dallied around too long? The answer to that is a lawyerly “it depends.” In this case, the 9th Circuit held that the delay was reasonable.

The district cited a couple of reasons why it did not act sooner. First, the district wanted to see Dr. Dyson’s report. The mother promised to provide it as soon as she got it, but then she failed to do that. The court found it reasonable for the district to want to review Dr. Dyson’s report to see what formal testing she had done. Secondly, the district had sound reasons to be skeptical of Dr. Dyson’s report. The district had served the student for more than four years, and had provided a myriad of mental health services. Qualified educators in the district reported that the student’s aggressive behavior was not consistent with an autism diagnosis.

Then there was the fact that the parent held off on consent for the district’s evaluation for four months. The district proposed the evaluation in April and got consent in August.

This case is another illustration of what I call The Unwritten Rule. Courts will always assess the comparative reasonableness of the parties’ behavior. It’s a good rule to have, especially since the entire system of special education law is built on a foundation that assumes good faith collaboration by parties who all want the student to get a good education. But the problem with The Unwritten Rule is that it’s so subjective. For example, in this case the lower court ruled in favor of the parent, finding the district’s delay unreasonable. The Circuit Court looks at the same facts and comes to the opposite conclusion.

Go figure.

The only thing to do is to go forth and be reasonable. And document your actions to create the paper trail that will lead a neutral third party to view your actions as reasonable.

This one is D.O. by Walker v. Escondido Union School District, decided by the 9th Circuit Court of Appeals on January 31, 2023. It’s cited at 2023 WL 1157654 and will be published in the Federal Reporter.


Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: was it a technicality?