FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

L. M., a minor by and through his 

Guardian Ad Litem, SAM M. and

MARIETTE M.; SAM M., on his own

behalf; MARIETTE M., on her own

No. 07-55469 behalf,

Plaintiffs-Appellees,  D.C. No.

CV-06-03049-ABC v.

CAPISTRANO UNIFIED SCHOOL

DISTRICT,

Defendant-Appellant. 

L. M., a minor by and through his 

Guardian Ad Litem, SAM M. and

MARIETTE M.; SAM M., on his own

behalf; MARIETTE M., on her own

No. 07-55585 behalf,

Plaintiffs-Appellees,  D.C. No.

CV-06-03049-ABC v.

CAPISTRANO UNIFIED SCHOOL

DISTRICT,

Defendant-Appellant. 

11005
L. M., a minor by and through his 

Guardian Ad Litem, SAM M. and

MARIETTE M.; SAM M., on his own

behalf; MARIETTE M., on her own

No. 07-55758 behalf,

Plaintiffs-Appellants,  D.C. No.

CV-06-03049-ABC v.

CAPISTRANO UNIFIED SCHOOL

DISTRICT,

Defendant-Appellee. 

L. M., a minor by and through his 

Guardian Ad Litem, SAM M. and

MARIETTE M.; SAM M., on his own

behalf; MARIETTE M., on her own No. 07-56373

behalf, D.C. No.

Plaintiffs-Appellees,  CV-06-03049-ABC

v. OPINION

CAPISTRANO UNIFIED SCHOOL

DISTRICT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

June 3, 2008—Pasadena, California

Filed August 19, 2008

Before: Diarmuid F. O’Scannlain and Richard C. Tallman,

11006 L. M. v. CAPISTRANO USD
Circuit Judges, and James K. Singleton,*

Senior District Judge.

Opinion by Judge Tallman

*The Honorable James K. Singleton, United States District Judge for

the District of Alaska, sitting by designation. 

L. M. v. CAPISTRANO USD 11007
COUNSEL

S. Daniel Harbottle, Rutan & Tucker, LLP, Costa Mesa, California, for the defendant-appellant/appellee. 

Bruce E. Bothwell, Law Office of Bruce E. Bothwell, Long

Beach, California, for the plaintiff-appellee/appellant.

OPINION

TALLMAN, Circuit Judge: 

L.M. is the autistic child of two loving parents, Samuel and

Mariette (collectively “Parents”), who have spared no expense

to obtain private in-home treatment for their developmentally

disabled son. The local Capistrano Unified School District

(“District”) balked at the idea of continuing the in-home educational plan at public expense and offered an alternative

plan. The matter ended up before an administrative law judge

in California who conducted a four-day evidentiary hearing to

resolve the dispute, ultimately ruling in favor of the District.

We must decide whether the district court clearly erred by

reversing the state administrative agency’s finding that a procedural violation of the Individuals with Disabilities EducaL. M. v. CAPISTRANO USD 11009
tion Act (“IDEA”), 20 U.S.C. §§ 1400-1482, amounted to

harmless error. The answer depends on whether the District

significantly restricted Parents’ right to participate in their disabled child’s Individual Educational Program (“IEP”) by limiting Parents’ classroom observational opportunities to twenty

minutes, when the District observed the child in his private

education program for up to three hours. The district court

had jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C.

§ 1415(i)(3). We have appellate jurisdiction under 28 U.S.C.

§ 1291. 

In reversing the administrative agency, the district court

failed to properly consider whether Parents’ right to participate was “significantly affected.” In other words, the district

court failed to consider whether the District’s policy of limiting Parents’ classroom observational opportunities to twenty

minutes was harmless because Parents nevertheless had a full

opportunity to participate in the process to fashion an appropriate educational plan for L.M. with help from an informed

and knowledgeable expert. There is no evidence to support a

finding that Parents’ right to participate was significantly

affected. We therefore reverse the district court’s order requiring the District to reimburse Parents for the cost of in-home

services and vacate its subsequent award of attorneys’ fees to

Parents as the prevailing party. We also affirm the district

court’s denial of a “stay put” order requiring the District to

reimburse Parents for continuing education expenses beyond

that covered in its original order.

I

In July 2004, a pediatric neurologist diagnosed L.M., then

two and one-half years old, with autism. L.M. began receiving

early intervention services from the Regional Center of

Orange County in late August 2004. Through the early intervention services, L.M. received speech-language therapy,

occupational therapy, and started a one-to-one in-home

behavioral program. Autism Comprehensive Educational Ser11010 L. M. v. CAPISTRANO USD
vices (“ACES”), a non-public agency, administered L.M.’s

private behavioral program. In December 2004, L.M.’s parents began paying ACES for a few additional hours of one-toone services per week, eventually increasing his one-to-one

services to twenty-five hours per week. 

In November 2004, Parents met with the District’s school

psychologist Luisa Martinez to begin discussing L.M.’s transition to the District on his third birthday. In December and

January, the District conducted several observations of L.M.

during his in-home education services. On January 10, 2005,

L.M.’s IEP team met to discuss L.M.’s assessment results and

initial placement in the District.1 The District offered to place

L.M. in the Palisades Elementary School, provide individual

intensive behavior instruction for four hours per week,

speech-language therapy for two thirty-minute sessions per

week, occupational therapy for thirty minutes per week, and

extended school year services. Parents attended the meeting,

asked questions, but did not indicate whether they approved

of the District’s proposed program. 

L.M. turned three-years-old on January 22, 2005, but did

not begin attending school in the District. Parents continued

to fund the one-to-one services provided from ACES. After

the initial IEP meeting, Parents twice visited the proposed

school, once with the principal and once with Dr. Melanie

1An IEP is a written statement developed for each disabled child by an

“IEP team” that typically consists of the parents, a special education

teacher, a representative of the local education agency, an expert, and

when appropriate, the child. 20 U.S.C. § 1414(d); Christoper S. v. Stanislaus County Office of Educ., 384 F.3d 1205, 1208 n.1 (9th Cir. 2004).

Some of the information the IEP must contain includes: (1) information

regarding the child’s present levels of performance; (2) a statement of

annual goals and short-term instructional objectives; (3) a statement of the

special educational and related services to be provided to the child; (4) an

explanation of the extent to which the child will not participate with nondisabled children in the regular class; and (5) objective criteria for measuring the child’s progress. 20 U.S.C. § 1414(d). 

L. M. v. CAPISTRANO USD 11011
Lenington, a licensed psychologist. Dr. Lenington asked to

observe the proposed program for a continuous ninety-minute

period, but was limited to twenty-minute increments because

of a district-wide policy.2 Dr. Lenington never returned to

conduct further observations after her initial twenty-minute

visit. 

In February and March 2005, District psychologist Martinez attempted to contact Parents to discuss the IEP offer. The

Parents did not respond, and in March 2005, they filed a

request for a due process hearing pursuant to 20 U.S.C.

§ 1415(f), alleging that the proposed IEP offer denied L.M. a

free appropriate public education (“FAPE”).3 In response to

the due process request, on April 7, 2005, the District sent a

letter to Parents offering additional services including more

tutoring in the home and a formal transition plan. 

In June 2005, the IEP team met for a second IEP meeting.

During this meeting L.M.’s father, Samuel, asked several

2To limit classroom disruption, the District did not allow classroom

observations to extend beyond twenty minutes. However, Dr. Lenington

could have returned anytime for another twenty-minute observation

period. She chose not to do so because of the time and expense involved

in commuting to and from the school. 

3The IDEA guarantees all disabled children a FAPE, which “emphasizes special education and related services designed to meet their unique

needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). The IDEA defines FAPE as 

special education and related services that— 

(A) have been provided at public expense, under public

supervision and direction, and without charge; 

(B) meet the standards of the State educational agency; 

(C) include an appropriate preschool, elementary school, or

secondary school education in the State involved; and 

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(9). 

11012 L. M. v. CAPISTRANO USD
pointed questions regarding the research supporting the District’s program. After some discussion, District staff objected

to Samuel’s questions because they felt interrogated. When

District staff attempted to change the subject to topics specific

to L.M., Samuel objected, and stated that the last two minutes

of the meeting should be used to talk about the District’s topics. In September 2005, Parents enrolled L.M. in the Center

for Autism and Related Disorders program. 

The California due process hearing took place in February

2006. The hearing lasted four full days and twelve witnesses

were called. During the hearing and in her subsequent Opinion, Administrative Law Judge (“ALJ”) Suzanne B. Brown

addressed four separate issues: (1) whether the District

offered L.M. a FAPE in the least restrictive environment from

January 22, 2005, through April 7, 2005; (2) whether the District offered L.M. a FAPE in the least restrictive environment

from April 7, 2005, through June 7, 2005; (3) whether the

District offered L.M. a FAPE in the least restrictive environment from June 7, 2005, to February 2006; and (4) whether

L.M. is entitled to reimbursement for privately funded services and prospective placement with his service providers. 

The ALJ concluded that the District failed to offer L.M. a

FAPE from January 22, 2005, to April 7, 2005, because the

District had not clearly offered thirty minutes of weekly individual speech-language therapy4

 and because the District’s

proposed IEP lacked a transition plan that was designed to

address L.M.’s unique needs.5 Although the District offered

Parents an IEP with a transition plan on April 7, 2005, the

new IEP still neglected to provide L.M. with the necessary

thirty minutes of weekly individual speech-language therapy.

4Although the District offered two thirty-minute sessions of speechtherapy, it did not specifically offer at least one thirty-minute session of

individual speech-language therapy. 

5The District did not appeal the ALJ’s findings regarding these violations. 

L. M. v. CAPISTRANO USD 11013
Therefore, the ALJ concluded that the District also failed to

offer L.M. a FAPE in the least restrictive environment from

April 7, 2005, to June 7, 2005. As a result of these procedural

violations, the ALJ ordered the District to reimburse Parents

for the cost of providing the in-home program from January

22, 2005, to April 7, 2005. The ALJ also ordered the District

to reimburse Parents for the cost of providing one hour of

speech-language therapy per week from January 22, 2005, to

July 22, 2005, and from the start of the 2005-2006 school year

until the date of the ALJ’s decision filed March 28, 2006. 

The ALJ also determined that the District violated California Education Code section 56329(c)6

 when it limited Dr.

Lenington’s classroom observation time to twenty-minute

increments, but the ALJ nevertheless concluded that the procedural flaw in the development of the IEP was harmless and

did not amount to the denial of a FAPE. The ALJ determined

that Parents still had the opportunity to participate in the “due

process hearing with an expert witness prepared to provide a

knowledgeable opinion about the proposed placement.” The

ALJ noted that Dr. Lenington admitted during her testimony

6California Education Code section 56329(c) provides: 

If the parent or guardian obtains an independent educational

assessment at private expense, the results of the assessment shall

be considered by the public education agency with respect to the

provision of free appropriate public education to the child, and

may be presented as evidence at a due process hearing pursuant

to Chapter 5 (commencing with Section 56500) regarding the

child. 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. 

(Emphasis added.) 

11014 L. M. v. CAPISTRANO USD
that she “was still able to develop opinions about the [Palisade

program], advise the parents regarding [Palisade], and give

informed testimony at the hearing regarding the [Palisade program].” Moreover, “given Dr. Dores’ [(the District’s expert)]

extensive knowledge about the [Palisade program], [the ALJ

believed that] an additional 70 minutes of Dr. Lenington’s

observations likely would not have significantly affected the

weight given to her testimony regarding the appropriateness

of the [Palisade program].” 

Ultimately, the ALJ did not find a procedural or substantive

violation of the IDEA that would allow Parents to receive

reimbursement of the costs of in-home care after April 7,

2005. The ALJ also declined to find that L.M. is entitled to

prospective placement with his current providers since she

determined that the District’s proposed IEP amounted to a

substantively viable FAPE. 

Parents challenged the ALJ’s decision to the United States

District Court for the Central District of California. Primarily

at issue in this appeal is whether the district court clearly

erred in reversing the ALJ’s finding of harmlessness with

regards to the District’s technical violation of section

56329(c). The district court concluded that the limitation

amounted to more than a “mere technical violation” since it

“constitute[d] a procedural violation of the IDEA by depriving [Parents] of the right to meaningfully participate in the

IEP process.” By limiting Dr. Lenington’s ability to observe

the Palisades program, the District “frustrated the purpose of

Cal. Edu. Code § 56329 by denying [Parents] the opportunity

to gather evidence regarding the appropriateness [of] placing

[L.M.] at Palisades.” The district court ordered the District to

reimburse Parents for the cost of all in-home services received

between January 22, 2005, until the date the District properly

prepared an IEP. The district court remanded the case to the

L. M. v. CAPISTRANO USD 11015
ALJ for a determination on the reimbursement amount. The

District timely appealed.7

II

A party aggrieved by the findings and decision of an ALJ

in a due process hearing may seek review through a civil

action in United States district court. 20 U.S.C. § 1415(i)(2).

The IDEA provides that in reviewing a due process hearing,

the district court: 

[1] shall receive the records of the administrative

proceedings; 

[2] shall hear additional evidence at the request of

a party; and 

[3] basing its decision on the preponderance of the

evidence, shall grant such relief as the court

determines appropriate. 

20 U.S.C. § 1415(i)(2)(C). 

In reviewing administrative decisions, the district court

must give “due weight” to the state’s judgments of education

policy. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist.

v. Rowley, 458 U.S. 176, 206 (1982); County of San Diego v.

Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1466 (9th

Cir. 1996). In recognition of the administrative agency’s

expertise, the court “must consider [the agency’s] findings

carefully and endeavor to respond to the hearing officer’s resolution of each material issue.” County of San Diego, 93 F.3d

at 1466 (internal quotation marks omitted). Although the district court “is free to determine independently how much

7

Including attorneys’ fees, the District was ultimately ordered to pay

approximately $215,000 to Parents. In appeal No. 07-55585 and No. 07-

56373, the District appeals the district court’s award of attorneys’ fees. 

11016 L. M. v. CAPISTRANO USD
weight to give the administrative findings” the “courts are not

permitted simply to ignore [them].” Id. (internal quotation

marks omitted). A district court shall accord more deference

to administrative agency findings that it considers “thorough

and careful.” Capistrano Unified Sch. Dist. v. Wartenberg, 59

F.3d 884, 892 (9th Cir. 1995). The ALJ’s twenty-page Opinion certainly meets that standard in our judgment. We review

for clear error a district court’s findings of fact in an IDEA

case. Id. 

III

[1] The IDEA assures that all disabled children receive a

FAPE through IEPs. 20 U.S.C. § 1400(d)(1)(A). As a part of

their FAPE, the IDEA guarantees certain procedural safeguards for the disabled child and his or her parents. 20 U.S.C.

§ 1415(a); W.G. v. Bd. of Trs. of Target Range Sch. Dist. No.

23, 960 F.2d 1479, 1483 (9th Cir. 1992) (“Target Range”),

superseded by statute on other grounds by Individuals with

Disability Education Act Amendments of 1997, Pub. L. 105-

17, § 614(d)(1)(B), 111 Stat. 37. “Central among the safeguards is the process of developing an [IEP] for each child.”

Id. (citing 20 U.S.C. §§ 1401(a)(18)(D), 1412(1)); see also

Rowley, 458 U.S. at 181 (stating that in reviewing an IDEA

case, a court must first determine whether “the State complied

with the procedures set forth in the Act”). 

[2] Procedural flaws in the IEP process do not always

amount to the denial of a FAPE. Target Range, 960 F.2d at

1484; see also M.L. v. Federal Way Sch. Dist., 394 F.3d 634,

652 (9th Cir. 2005) (plurality) (Gould, J., concurring) (citing

28 U.S.C. § 2111). Once we find a procedural violation of the

IDEA, we must determine whether that violation affected the

substantive rights of the parent or child. M.L., 394 F.3d at 652

(Gould, J., concurring); Target Range, 960 F.2d at 1484; see

also Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d

1072, 1079-80 (9th Cir. 2003), superseded on other grounds

by 20 U.S.C. § 1414(d)(1)(B) (2003); Amanda J. v. Clark

L. M. v. CAPISTRANO USD 11017
County Sch. Dist., 267 F.3d 877, 891-92 (9th Cir. 2001).

“[P]rocedural inadequacies that result in the loss of educational opportunity, or seriously infringe the parents’ opportunity to participate in the IEP formulation process, clearly

result in the denial of a FAPE.” Target Range, 960 F.2d at

1484 (citations omitted). Here, Parents do not contend that by

limiting Dr. Lenington’s ability to observe, the District caused

“a lost educational opportunity.” Therefore, we are concerned

only with whether the procedural violation “significantly

restricted” Parents’ participation in the IEP process. See M.L.,

394 F.3d at 653 (Gould, J., concurring); Target Range, 960

F.2d at 1484. 

[3] California Education Code section 56329(c) provides

that “[i]f a public education agency observed the pupil in conducting its assessment . . . an equivalent opportunity shall

apply to an independent educational assessment” for the parents with regards to observation of the proposed educational

placement and setting. The purpose of section 56329(c) is to

level the playing field between the parents and a more knowledgeable school district. Benjamin G. v. Special Educ. Hearing Office, 131 Cal. App. 4th 875, 881 (Cal. Ct. App. 2005).

“IDEA acknowledges the fact that school districts have better

access to information and more educational expertise than

parents and thus provides for a ‘due process’ hearing to ‘level

the playing field’ by permitting the parents to present all the

evidence they can muster to challenge the district’s decision.”

Id. “To that end, IDEA gives the child and his parents the

right to be advised by experts, to have those experts testify at

their due process hearing, and to have someone other than a

district employee as a hearing officer.” Id.

The ALJ concluded that the District’s time limitation, while

a violation of California Education Code section 56329(c),

did not so undermine the statute’s purpose as to deprive Parents of their right to participate in the due process hearing

with an independent, knowledgeable expert. Indeed, as Dr.

Lenington testified, even with the time limitation, she was

11018 L. M. v. CAPISTRANO USD
still able to develop opinions, advise Parents, and give

informed testimony at the hearing. Having heard all of the

live testimony, and having concluded that the District’s expert

—who had extensive knowledge about the Palisade program

—was more credible, the ALJ concluded that an additional

seventy minutes of observation “likely would not have significantly affected the weight” she gave to Dr. Lenington’s testimony. 

Despite concluding that the ALJ’s careful and thorough

opinion deserved “substantial deference,” the district court

rejected the ALJ’s assessment and held that the District’s procedural violation deprived Parents of their right to “meaningfully participate in the IEP process.” Relying on Benjamin G.,

the district court held that the District “not only technically

violated [section 56329],” it “also frustrated the purpose of

[that section] by denying [Parents] the opportunity to gather

evidence regarding the appropriateness [of] placing [L.M.] at

Palisades.” According to the district court, this arose to more

than a “mere technical violation” because some of the most

important procedural safeguards are those that protect a parent’s right to participate. The district court also noted that the

ALJ concluded Dr. Lenington was “ ‘not particularly familiar

with [Palisades] or other components of the District’s program, and thus [her] testimony regarding the District’s program carried less weight than that of [the District’s expert,]

Dr. Dores, who helped to design the program and continues

to supervise it.’ ” Although the district court did not disagree

with the ALJ’s assessment of the knowledge and credibility

of the witnesses, it disagreed with the ALJ’s conclusion that

the procedural violation did not deprive Parents of their right

to “meaningfully participate in the IEP process.” 

[4] The district court misconstrued the ALJ’s findings, and

in doing so, it failed to properly apply the harmless error analysis required by our precedent. Not all procedural flaws result

in the denial of a FAPE. We have never adopted as precedent

the structural defect approach discussed by Judge Alarcón in

L. M. v. CAPISTRANO USD 11019
M.L. v. Federal Way School District, 394 F.3d 634 (9th Cir.

2005) (plurality). See id. at 652-52 (Gould, J., concurring).

Our precedent is clear: a procedural violation may be harmless, and we must consider whether the procedural error either

resulted in a loss of educational opportunity or significantly

restricted parental participation. Id.; Shapiro, 317 F.3d at

1079-80; Amanda J., 267 F.3d at 891-92; Target Range, 960

F.2d at 1484. 

[5] Although the district court properly recognized that Parents have a substantial right to participate in the IEP process,

it neglected to consider whether Parents’ right was significantly affected by the District’s procedural violation. In an

action for judicial review of an administrative decision, the

burden of persuasion rests with the party challenging the

ALJ’s decision. Clyde K. v. Puyallup Sch. Dist., No. 3, 35

F.3d 1396, 1399 (9th Cir. 1994), superseded on other grounds

as recognized in M.L., 341 F.3d at 1063 n.7. Parents fail to

present any evidence that undermines the ALJ’s credibility

findings, or proffer any evidence that they could have found

had they received more classroom observation time. Dr. Lenington could have gone back on other occasions for more

twenty-minute visits. Dr. Lenington also conceded that she

was able to provide Parents with an informed and independent

opinion, and Parents presented the opinion of Dr. Lenington

during the due process hearing. Having heard all of the testimony, the ALJ determined that there was likely nothing Dr.

Lenington could have discovered during an additional seventy

minutes of observation time that would have changed the

ALJ’s ultimate opinion that placement in Palisade was appropriate for L.M. Because we conclude that there is nothing in

the record to support a finding that the procedural flaw during

the development of L.M.’s IEP deprived Parents of their right

to meaningfully participate in the due process hearing, we

conclude that the district court’s finding to the contrary was

clearly erroneous.8

8Because we reverse the district court’s underlying order granting Parents reimbursement for a procedural violation, we vacate the order granting Parents attorneys’ fees as the prevailing party (Nos. 07-55585/07-

56373). 

11020 L. M. v. CAPISTRANO USD
IV

[6] In appeal No. 07-55758, Parent’s challenge the district

court’s denial of a “stay put” order pursuant to 20 U.S.C.

§ 1415(j). The “pendent placement” or “stay put” provision

requires the child to remain in his “current educational placement” during the course of administrative and judicial proceedings. Id.; Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78,

82 (3d Cir. 1996). Section 1415(j) states:

Except as provided in subsection (k)(4) of this section, during the pendency of any proceedings conducted pursuant to this section, unless the State or

local educational agency and the parents otherwise

agree, the child shall remain in the then—current

educational placement of the child, or, if applying

for initial admission to a public school, shall, with

the consent of the parents, be placed in the public

school program until all such proceedings have been

completed. 

The IDEA does not define the phrase, “current educational

placement.” However, courts have generally interpreted the

phrase to include: 

(1) “typically the placement described in the child’s

most recently implemented IEP,” Johnson v. Special

Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir.

2002); (2) “the operative placement actually functioning at the time . . . when the stay put provision

of the IDEA was invoked,” Drinker v. Colonia Sch.

Dist., 78 F.3d 859, 867 (3d Cir. 1996); and (3) “[the

placement at the time of] the previously implemented IEP,” Thomas v. Cincinnati Bd. of Educ.,

918 F.2d 618, 625 (6th Cir. 1990). 

Mackey v. Bd of Educ., 386 F.3d 158, 163 (2d Cir. 2004)

(alterations in original). A court-approved placement can also

L. M. v. CAPISTRANO USD 11021
be considered the student’s “current educational placement.”

Id.

Parents may also invoke the stay put provision at the time

the student is applying for initial admission to a pubic school.

If the parents disagree with the school’s initial proposed

placement, the parents may consent to the student being

placed in a public school during the pendency of the administrative proceedings. See 20 U.S.C. § 1415(j). 

[7] Here, there is no functioning IEP. At the time this litigation commenced, L.M. was making his initial application for

public school. However, rather than consenting to L.M. being

placed in a public school during the duration of the litigation,

Parents unilaterally placed L.M. in a private program. Therefore, the only viable argument Parents have for a “stay put”

order is to contend that the district court approved the private

placement in its March 13, 2007, reimbursement order. See

Mackey, 386 F.3d at 163 (“ ‘once the parents’ challenge [to

a proposed IEP] succeeds . . . , consent to the private placement is implied by law, and the requirements of § 1415(j)

become the responsibility of the school district.’ ” (alterations

in original) (quoting Bd. of Educ. v. Schutz, 290 F.3d 476, 484

(2d Cir. 2002)); Clovis Unified Sch. Dist. v. Cal. Office of

Admin. Hearing, 903 F.2d 635, 641 (9th Cir. 1990) (per

curiam) (discussing School Committee of the Town of Burlington v. Massachusetts Department of Education, 471 U.S.

359 (1985), and concluding that “once the State educational

agency decided that the parents’ placement was the appropriate placement, it became the ‘then current educational placement’ within the meaning of section 1415”). Parents argue

that their private placement is L.M.’s “current educational

placement” because they have prevailed before the district

court in their procedural challenge to the District’s proposed

IEP. See Mackey, 386 F.3d at 163 

[8] In light of our holding that the district court clearly

erred in reversing the ALJ’s finding that the District’s proce11022 L. M. v. CAPISTRANO USD
dural violation was harmless, we need not address the merits

of Parents’ argument. Parents can no longer argue that they

have prevailed in their procedural challenge to the IEP, or that

the district court had “determined that L.M.’s privately funded

educational services were appropriate.” Because Parents have

no basis to contend that their private placement is L.M.’s

“current educational placement,” we affirm the district court’s

denial of a “stay put” order. 

V

The district court neglected to give the ALJ’s careful and

thorough assessment of the harmlessness of the District’s procedural violation the substantial deference it deserved. Parents

participated in the due process hearing with an informed,

knowledgeable, independent expert. There is nothing in the

record to suggest that an additional seventy minutes of continuous observation time would have provided any information

that would have undermined the ALJ’s credibility findings.

Because the district court failed to consider whether Parents’

substantial rights were significantly affected, and because

there is nothing in the record to support a conclusion that they

were, we conclude that the district court’s factual findings

were clearly erroneous. We reverse the district court’s reimbursement order (No. 07-55469) and vacate its award of attorneys’ fees (Nos. 07-55585/07-56373). We affirm the district

court’s denial of a “stay put” order (No. 07-55758). Each

party shall bear its own costs on appeal. 

REVERSED (No. 07-55469); VACATED (Nos. 07-

55585/07-56373); AFFIRMED (No. 07-55758). 

L. M. v. CAPISTRANO USD 11023