EdLawConnect Blog

Assessments are one of the primary vehicles by which IEP teams better understand the unique educational needs of special education students.  There are times, however, when a school district’s efforts are frustrated before testing even begins.  Luckily, two recent cases, one decided before the California Office of Administrative Hearing (OAH) and a second decided by OAH then the United States District Court, Southern District of California, are instructive and helpful to school districts and IEP teams.

Unreasonable Conditions Imposed on Assessment

The 2013 case Torrance Unified School District v. Parent on Behalf of Student (OAH Case No. 2013030530) involved a parent who imposed conditions upon the district’s ability to assess a student.  The student had qualified for special education and related services under the eligibility category of autistic-like behaviors.  The district wanted to conduct comprehensive assessments of the student for his triennial review and presented the parents with a proposed assessment plan; the district never received a response.  After a second attempt to obtain parental consent to an assessment plan and the district’s filing for due process, the parties agreed to cooperate through the assessment process.  Notwithstanding the district’s expectation of cooperation during the assessment process, student’s parent obtained a doctor’s note stating that the student’s anxiety required that his parent be present during any assessment.  On the dates of assessment, the student was accompanied by his parent who, with the doctor’s note in hand, requested to remain present during the student’s assessments.  During an assessment in which the parent was present, the results of the testing were rendered invalid as the parent would make comments regarding testing, redirect the student, and soothe him when frustrated.  Other portions of the student’s triennial assessment could not be conducted at all because of the parent’s insistence on being present during testing. Because of these impediments, the matter was ultimately resolved through a due process hearing before OAH.

In its decision, OAH stated, “When a parent imposes unreasonable conditions upon the assessment process, their consent is effectively withheld.”  OAH recognized that parents cannot withhold their consent to assessment and still insist that their children receive special education and related services.  The order issued by OAH permitted the district to assess the student, and even went as far as instructing that if the parents failed to cooperate with the conduct triennial reassessment, the district may provide prior written notice to parents and terminate the student’s special education services without any further order.

Selection of Testing Instruments for Assessment is Within the District’s Discretion

In Haowen Z. v. Poway Unified School District,a 2013 case before the U.S. District Court, Southern District of California, (S.D. Cal., August 14, 2013, 113 LRP 33260) the parent of a special education student brought a motion for preliminary injunction to prevent the district from administering the KABC-II I.Q. test.  The test had been used in the student’s two previous triennial assessments, each time producing uninterpretable results likely due to the student’s autism, communication deficits, and being an English language learner.  The district sought to administer the KABC-II again to resolve those discrepancies, but the parent refused consent to the test.  The parent expressed concern about the district’s need for the student’s IQ score and the reliability of such testing on autistic students to reflect their true abilities.  The OAH decision allowed for the District to perform the KABC-II test over parent’s objection.  On appeal, the District Court held that the parent is not entitled to choose the tests that the district may use to assess the student.

This decision reaffirms the principle that school districts may exercise discretion in the selection of a particular testing or evaluation instrument, so long as evaluation procedures required by law are otherwise met.  However, this deference to school districts’ test selections does not excuse them from backing their decisions with solid reasoning.  Assessors should always be qualified to make such determinations and be able to explain the appropriateness of a desired test instrument or measure.