• Education Code 56329 Does Not Require Districts to Open Doors to 'Parent Assessors' Outside of the IEE Process
  • May 31, 2004 | Author: Ian T. Wade
  • Law Firm: Atkinson, Andelson, Loya, Ruud & Romo, A Professional Corporation - Cerritos Office
  • On February 6, 2003, California Senator Dede Alpert introduced a bill, SB 145, slated to amend Section 56506 of the Education Code by creating, "[t]he right to obtain an independent educational assessment pursuant to subdivision (b) of Section 56329." Included in that amendment was the student's right, during an IEE, to an"observation by an independent assessor of the pupil in the pupil's current or proposed educational placement and setting ...." After a series of revisions, the proposed amendment of Section 56506 was redrafted to include an amendment of Section 56329 of the Education Code. After a series of subsequent changes to SB 145, the bill was chaptered and the new law took effect on January 1, 2004. Portions of the law currently read as follows:

    If a public education agency observed the pupil in conducting its assessment, or if its assessment procedures make it permissible to have in-class observation of a pupil, an equivalent opportunity shall apply to an independent educational assessment of the pupil in the pupil's current educational placement and setting, and observation of an educational placement and setting, if any, proposed by the public education agency, regardless of whether the independent educational assessment is initiated before or after the filing of a due process hearing proceeding. See Cal. Ed. Code § 56329(b-c).

    The need for this law arose after a 2002 hearing officer's decision that SEHO "lacked the authority to compel a local education agency to allow an independent assessor to conduct an observation in the student's classroom...." In an effort to "level the playing field" in due process hearings, the California Legislature took it upon itself to open the doors of local educational agencies ("LEA") to independent assessors for the purpose of allowing parents the opportunity to obtain an IEE.

    Recently, the meaning of the clause "...and observation of an educational placement and setting, if any, proposed by the public education agency..." has come into question. Some student advocates and attorneys interpret this clause as creating a student's right, independent of the assessment process, for an independent expert to observe any educational placement proposed by an LEA's IEP team members. Both the Legislative intent of California lawmakers and a recent decision by the California Special Education Hearing Office demonstrate that Education Code Section 56329 creates no such right. See Bill Documents, available at, http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=sb_145&sess=CUR&house=B&author=alpert, see also, Encinitas Union School District, CSEHO Case No. SN03-02645 (2004).

    In Encinitas, the hearing officer denied a motion by the Student-Petitioner to compel a classroom observation, stating in pertinent part, "Section 56329 entitles an independent assessor the right to observe the student in the classroom only for purposes of conducting an educational assessment, not for purposes of preparing for due process hearing. Thus, section 56329 does not provide a right to classroom observation by the parents' assessor in this case." Furthermore, the hearing officer in Encinitas continued, "in a due process proceeding, the law does not provide parties with the right to conduct many types of discovery. In fact, the nature of due process proceedings is at odds with this type of discovery." When a student's stated purpose for the observation is preparation for hearing, "such discovery is not allowed in due process proceedings."

    Furthermore, on May 5, 2004 a hearing officer in Student v. Long Beach Unified School District, CSEHO Case No. SN03-02548, denied a Student's motion to allow an expert to observe a proposed public school placement. In Long Beach, the Student argued that because the District conducted an assessment and observed the Student in his current private school placement, that the Student had a reciprocal right for his expert to observe the proposed public school placement under Section 56329. The District argued that Section 56329 did not authorize or require such an observation and that Student was merely requesting this observation for discovery purposes.

    The hearing officer in Long Beach, recognizing that this was "clearly a request for discovery," held that "the Petitioner is attempting to utilize a code section that is inapplicable to the present facts. California Education Code section 56329(b) is specifically referring to the right of the pupil to conduct an independent educational assessment and the ability to observe educational placements and proposed placements within that context." (Emphasis added). Student's argument that the observation of a proposed placement is a separate concept, independent of the IEE process, "fails to recognize both the plain language of the statute and the purpose of this code section." The hearing officer continued, "[t]his code section is only in reference to conduct during the independent education assessment process and does not refer to experts observing proposed placements pending a due process hearing."

    Section 56329, both on its face, and from a close reading of the legislative intent, does not hold, nor imply, that the right to an observation of a proposed placement by a student's expert exists anywhere except as a function of the IEE process. Furthermore, subsequent case law interpreting this law clearly demonstrates that this section is not to be used for the purpose of evidentiary discovery outside of the IEE process.

    Significance

    California Education Code Section 56329 et seq. does not require districts to provide a Student's expert the opportunity to observe proposed placements when such an observation is not part of an Independent Educational Evaluation. Thus, when parents attempt to have experts observe a proposed educational placement by the district and this observation is not for the purpose of an IEE, districts can rely on both the legislative intent and the Encinitas and Long Beach cases in denying such requests.