Student

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ESTACADA SCHOOL DISTRICT, Case No. 3:25-cv-2066-SI

Plaintiff-Appellant, OPINION AND ORDER

v.

STUDENT,

Defendant-Appellee.

Joel E. Hungerford and Taylor A. Kinch, THE HUNGERFORD LAW FIRM, PO Box 3010, Oregon

City, OR 97045. Of Attorneys for Plaintiff-Appellant.

Lara Hruska and Whitney Hill, CEDAR LAW PLLC, 600 First Avenue, Suite 330, PMB 96563,

Seattle, WA 98104; and Emily Teplin Fox, FOX LAW LLC, 610 SW Alder Street, Suite 910,

Portland, OR 97205. Of Attorneys for Defendant-Appellee.

Michael H. Simon, District Judge.

Student is enrolled in the Estacada School District (the “District”). During the Student’s

time at Estacada, Student exhibited developmental delay and received a diagnosis of autism.

Accordingly, Student is eligible for services under the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. §§ 1400, et seq. After several incidents and disagreements related to

the District’s provision of services to Student during Student’s kindergarten year, the 2024-2025

school year, Student’s mother (“Parent”) requested a due process hearing, and the case was

assigned to Senior Administrative Law Judge (“ALJ”) Kate Triana. The District moved for an

interim order removing Student to an alternative educational placement for 45 days. After an

expedited evidentiary hearing and briefing, ALJ Triana denied the District’s motion in a Final

Order issued on May 23, 2025. The case proceeded, and after a second evidentiary hearing,

ALJ Triana issued a second Final Order on August 15, 2025, finding that the District had

committed several violations of the IDEA, as well as violations of federal and state regulations.

Now before the Court is the District’s appeal from both Final Orders issued by the ALJ.

STATUTORY FRAMEWORK

Congress enacted the IDEA in an effort to open the schoolhouse door for students who,

before the law’s passage, did not have meaningful access to a public education because of their

disabilities. One of the law’s primary goals is to ensure that children with disabilities are

provided with a Free Appropriate Public Education (“FAPE”) “that 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). “To accomplish these

objectives, the federal government provides funding to participating state and local educational

agencies, which is contingent on the agency’s compliance with the IDEA’s procedural and

substantive requirements.” Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1053-54 (9th

Cir. 2012); see also Endrew F. ex rel Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386,

390 (2017) (“In exchange for the funds, a State pledges to comply with a number of statutory

conditions. Among them, the State must provide a free appropriate public education—a FAPE,

for short—to all eligible children.”). The “IDEA is frequently described as a model of

‘cooperative federalism.’ It leaves to the States the primary responsibility for developing and

executing educational programs for handicapped children, [but] imposes significant requirements

to be followed in the discharge of that responsibility.” Schaffer ex rel. Schaffer v. Weast, 546

U.S. 49, 52 (2005) (quotation marks and citation omitted); see also Bay Shore Union Free Sch.

Dist. v. Kain, 485 F.3d 730, 733 (2d Cir. 2007) (“The [IDEA] requires participating states to

establish a ‘basic floor of meaningful, beneficial educational opportunity,’ but states may exceed

the federal floor and enact their own laws and regulations to guarantee a higher level of

entitlement to disabled students.”) As a recipient of federal funds, the Oregon Department of

Education (“ODOE”) must provide a FAPE to children with disabilities and must establish and

maintain procedures to ensure those children and their parents are guaranteed procedural

safeguards related to the provision of a FAPE. 20 U.S.C. § 1415(a).

The IDEA ensures that children with disabilities receive a FAPE by requiring that state

agencies develop a detailed, individualized instruction plan known as an Individualized

Education Program (“IEP”) for those children. 20 U.S.C. §§ 1401(9), 1401(14), and 1414(d).

The IEP is “the centerpiece of the [IDEA’s] education delivery system for disabled

children.” Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP is a written statement, prepared at a

meeting of qualified representatives of the local educational agency, the child’s teacher,

parent(s), and, where appropriate, the child (the IEP team). The IEP, among other things,

includes “the child’s ‘present levels of academic achievement and functional performance,’

establishes measurable annual goals, addresses the services and accommodations to be provided

to the child and whether the child will attend mainstream classes, and specifies the measurement

tools and periodic reports that will be used to evaluate the child’s progress.” Anchorage Sch.

Dist., 689 F.3d at 1054 (quoting 20 U.S.C. § 1414(d)(1)(A)); see also Endrew F., 580 U.S. at

391-92. The IEP team reviews, and if appropriate, revises, the IEP at least once each year. 20

U.S.C. § 1414(d)(4)(A)(i).

A parent may challenge the conduct of the state by filing a request for a due process

hearing. 20 U.S.C. §§ 1415(b)(6), 1415(f). Such a challenge may allege a procedural or

substantive violation of the IDEA. J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431,

432 (9th Cir. 2010); see also Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1043 (9th

Cir. 2013). A procedural violation occurs when a state violates the IDEA’s statutory or

regulatory procedures in creating or implementing an IEP. Id. A substantive violation occurs

when a state offers an IEP that is not reasonably calculated to enable the child to receive a

meaningful educational benefit. Id.

When a due process complaint has been filed, “the parents or the local educational

agency involved in such complaint shall have an opportunity for an impartial due process

hearing, which shall be conducted by the State educational agency or by the local educational

agency, as determined by State law or by the State educational agency.” 20 U.S.C.

§ 1415(f)(1)(A). Following the due process hearing, the hearing officer—here the ALJ—must

provide a decision determining whether the child received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i).

When analyzing whether an agency provided a student a FAPE, the Court conducts a

two-part inquiry. First, the Court considers whether the state complied with the procedures set

forth in the IDEA. Doug C., 720 F.3d at 1043. Second, the Court determines whether the IEP is

reasonably calculated to enable the child to receive educational benefits. Id. A state must meet

both requirements to comply with the obligations of the IDEA. Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist. v. Rowley (“Rowley”), 458 U.S. 176, 207 (1982). The Ninth Circuit has held that

Endrew did not change, but only clarified Rowley. M.C. ex rel. M.N. v. Antelope Valley Union

High Sch. Dist., 858 F.3d 1189, 1200-01 (9th Cir. 2017).

A procedural violation may result in the denial of a FAPE. For that to occur, the

procedural inadequacies must have: “(i) Impeded the child’s right to a FAPE; (ii) Significantly

impeded the parent’s opportunity to participate in the decision-making process regarding the

provision of a FAPE to the parent’s child; or (iii) Caused a deprivation of educational

benefit.” 34 C.F.R. § 300.513(a)(2); see also Amanda J. ex rel. Annette J. v. Clark Cnty. Sch.

Dist., 267 F.3d 877, 892 (9th Cir. 2001) (stating that “procedural inadequacies that result in the

loss of educational opportunity, or seriously infringe the parents’ opportunity to participate in the

IEP formulation process, or that caused a deprivation of educational benefits, clearly result in the

denial of a FAPE” (simplified)). “A procedural error results in the denial of an educational

opportunity where, absent the error, there is a strong likelihood that alternative educational

possibilities for the student would have been better considered.” Doug C., 720 F.3d at

1047 (simplified). “[A]n IEP team’s failure to properly consider an alternative educational plan

can result in a lost educational opportunity even if the student cannot definitively demonstrate

that his placement would have been different but for the procedural error.” Id.

STANDARD OF REVIEW

“When a party challenges the outcome of an IDEA due process hearing, the reviewing

court receives the administrative record, hears any additional evidence, and, ‘basing its decision

on the preponderance of the evidence, shall grant such relief as the court determines is

appropriate.’” R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th

Cir. 2007) (quoting 20 U.S.C. § 1415(i)(2)(C)). Courts reviewing an appeal under the IDEA do

not employ the deference framework typically used in evaluating agency decisions, but must

give “due weight” to the state administrative proceedings and must not “substitute their own

notions of sound educational policy for those of the school authorities which they review.”

Rowley, 458 U.S. at 206. The Ninth Circuit has established that the “due weight” discussed in

Rowley is given only to the final decision of the state administrative authority—the hearing

officer or the reviewing officer in a two-tiered administrative system (except for certain

credibility determinations for which the hearing officer would retain deference instead of the

reviewing officer). See Amanda, 267 F.3d at 887-88.

In considering the hearing officer’s (here, the ALJ’s) decision, a district court has

discretion to decide the amount of deference it gives to the administrative findings. See Cnty. of

San Diego v. Cal. Spec. Educ. Hearing Off., 93 F.3d 1458, 1466 (9th Cir. 1996). The reviewing

court, however, “at a minimum, must consider the findings carefully.” R.B., 496 F.3d at 937

(simplified). The district court also gives “particular deference where the hearing officer’s

administrative findings are ‘thorough and careful.’” Id. (quoting Union Sch. Dist. v. Smith, 15

F.3d 1519, 1524 (9th Cir. 1994)). A reviewing court also gives deference to the hearing officer’s

credibility determinations of live witnesses. See Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337

F.3d 1115, 1127 (9th Cir. 2003) (“Normally, a finder of fact’s determination of credibility

receives deference on appeal, because access to live testimony is important to the credibility

finding.”); Amanda J., 267 F.3d at 889 (recognizing that “a HO [hearing officer] who receives

live testimony is in the best position to determine issues of credibility”).

BACKGROUND1

Student attends school in Estacada School District 108. Student was born in 2018, and

lives in Estacada with Student’s family, including two older siblings. Ex. S34 at 1. At all relevant

1 The ALJ made thorough findings of fact in both her Final Order of May 23, 2025, on

the expedited matter, and her Final Order of August 15, 2025. The Court does not duplicate here

the detailed narrative timeline that ALJ Triana created below but rather includes only the most

salient points and overall themes from the record.

The District characterizes the following facts found by ALJ Triana as inaccurate or

incomplete: 2, 3, 7, 8, 9, 10, 11, 12, 13, 17, 18, 23, 27, 31, 36, 40, 41, 58, 63, 83, 101, 103, 105,

107, 108, 118, 137, 138. 139, 143, 168, 194, 214, 215, 229, 232, 251, 269, 276, 279-80, 286-87,

times, Student has been “small for [Student’s] age”—so much so that Student’s doctors have

expressed concern about Student’s size. See. Ex. D4 at 1. At the administrative hearing on the

District’s Motion for a 45-day Interim Alternative Education Setting (“IAES”), Parent testified

that Student is three to three-and-a-half feet tall and weighs 39 pounds, which is in the 11th

percentile. Transcript of Expedited Hearing (“Exp. Tr.”) 659:25-660:8. Before entering

kindergarten, Student attended a private daycare, but the daycare ultimately referred Student’s

parents to Clackamas Education Service District (“CESD”) for services related to Student’s

behavioral issues, including “throwing chairs and dumping materials onto floor, punching,

slapping, kicking, spitting on, pinching and biting Teachers,” among other problems. Ex. D4

at 1. On evaluating Student, CESD noted that Student had difficulty with transitions, that

Student’s adaptive, social, and emotional skills were delayed and cognitive skills were somewhat

delayed. Id. at 1-8. Thus, Student was deemed eligible for Early Childhood Special Education

(“ECSE”) services based on developmental delay. Id. at 8.

On March 8, 2024, CESD convened a meeting to develop and adopt an Individualized

Family Service Plan (“IFSP”) for Student, intended to guide services for Student until Student

entered kindergarten. Ex. D6 at 1.2 Through CESD, Student enrolled at Gladstone Early

Education (“Gladstone”), where Student appeared to progress toward Student’s IFSP goals.

289-90, 292-301. See Compl. ¶ 15. The Court has reviewed both the record and the ALJ’s Final

Orders and finds the ALJ’s factual findings to be an accurate reflection of the record.

2 The IFSP called for Student to attend community preschool for 29 hours per week. D6

at 1. It also provided that Student receive 0.81 hours per week of ECSE services, including thrice

monthly 45-minute sessions of specialized instruction in cognitive, adaptive, and social skills in

the classroom and thrice monthly 45-minute sessions of family training activities in the home. Id.

Finally, Student was to receive specific sensory and other supports to assist with transitions and

classroom routines. Id. at 3. The IFSP team also set several goals for Student, notably focused on

attending to activities in the classroom, independently transitioning between activities, and

resolving conflicts with peers. Id. at 8.

Student’s mother noted that Student “learned self-regulation tools and grew in [Student’s]

capacity to handle transitions, big emotions, and interactions with peers.” Ex. S6 at 2.

Contemporaneous CESD reports affirmed that assessment, indicating that Student met some of

Student’s IFSP goals and made meaningful progress towards meeting others, though this

progress was not without notable examples of regression to unwanted behaviors. Id. at 29-35.

In anticipation of Student’s enrollment in kindergarten for the 2024-2025 school year, the

District convened an IEP meeting on May 30, 2024. Exs. D8 at 1; D9 at 1. Ahead of the meeting,

the District’s student services instructional coach, Stephanie Peterson, and learning specialist,

Katherine Zeis, created a draft IEP for the IEP team’s consideration, relying heavily on Student’s

IFSP and information gathered from staff at Gladstone. Due Process Hearing Transcript (“Tr.”)

23:10-25:8. At the meeting, the IEP team discussed Student’s strengths and weaknesses,

including that Student could be a “sweet, good, loving little [child] when [Student] wants to be,”

and that Student could also be very verbally and physically aggressive. Exs. D10 at 4; D12 at 1.

The resulting IEP noted no concerns with Student’s academic achievement, but identified

several areas of concern with respect to Student’s social, emotional, and behavioral development.

Ex. D10 at 4-5. Student’s mother expressed concerns as to whether the District could handle

Student’s behaviors, especially Student’s tendency towards verbal and physical aggression,

destruction of property, and elopement, in a traditional classroom. Tr. 26:25-27:20. The team

weighed those concerns against the value of placing Student in the Least Restrictive

Environment (“LRE”). Id. Ultimately, they determined to place Student in the general education

classroom with “push-in” and “pull-out” support. Ex. D10 at 14-15.

The IEP included two goals for Student for the school year. The first, in

“social/emotional – behavior,” was:

Given a social scenario and an emotion visual, [Student] will

identify a possible feeling of the individual in the scenario and a

possible self-regulation activity they could implement with 80%

accuracy in 3 out of 4 opportunities by spring 2025.

Id. at 8. The second, in the area of self-management, was:

Given verbal, tactile and/or visual cues during a transition time,

[Student] will transition to the next activity within 1 minute of the

given direction in 3 out of 4 opportunities by [spring 2025].

Id. at 9.

Further, the IEP provided for the following services and supports:

• 30 minutes weekly of Specially Designed Instruction (“SDI”) in the area of

behavior—social/emotional. Id. at 10.

• 30 minutes weekly of SDI in self-management. Id.

• Making adult assistance available to help deal with safety and elopement concerns,

transitions, self-regulation, and toileting. Id.

• Access to sensory supports (a preferred object) during transitions. Id. at 10-11.

• Transition supports, including 5/2/1 warnings before transitions, visual and verbal

cues, timers, and first-then language. Id. at 11.

• Visual supports, including schedules, routines, expectations, directions, and self-

regulation support. Id.

• Options for in-class or out-of-class breaks with adult support to deal with

dysregulation. Id.

The team considered, but did not add, a Behavioral Support Plan (“BSP”),3 though it agreed to

monitor Student’s behavior once the school year began for signs that a BSP needed to be

developed. Ex. D12 at 1.

3 The IDEA and Oregon regulations reference “behavioral intervention plan.” See,

e.g., 20 U.S.C. § 1415(k)(1)(F); OAR 581-015-2415(4)(b)(B). The ALJ and the parties, however,

use “behavior support plan,” and thus the Court uses that term in this Opinion and Order.

Almost immediately upon the beginning of classes, Student began engaging in unwanted

behaviors. These included inappropriate language, verbal and physical aggression towards staff

and peers, and elopement.4 See, e.g., Ex. D53. These behaviors would continue throughout the

school year to varying degrees of frequency and intensity. On September 6, 2024, after Student

punched a teacher and engaged in other unwanted behaviors, Student was sent to the principal’s

office, where the assistant principal made a call to Student’s mother. Ex. D53 at 1; Tr.

at 10:7-15.

Student’s mother was alarmed at how quickly the District resorted to removing Student

from the classroom as a means of managing Student’s behavior. See Ex. S11 at 1. Thus, later on

September 6th, she emailed the District, requesting that the District perform a Functional

Behavioral Assessment (“FBA”) for Student, expressing her strong belief “that not

understanding some of the reasons behind [Student’s] behaviors, is impeding an appropriate

action plan that will set [Student] up for success within the Estacada School District.” Id. On

September 13th, Student’s father signed the consent form allowing the District to proceed with

the FBA. Ex. D14 at 1. The District subsequently assigned the task of completing the FBA to

Ms. Abby Williams, the school psychologist. Tr. at 85:13-15. Ms. Williams observed Student for

roughly one week in multiple school settings, and obtained information from Student’s teachers,

parents, paraeducators, and from Student himself. Exp. Tr. 204:1-206:3. Based on these efforts,

Ms. Williams identified lagging skills in managing irritability and emotions, thinking before

4 Elopement is when a student leaves the regular classroom without the permission or

supervision of a staff member. Throughout the school year, Student regularly would elope from

the classroom. A child who elopes to a location inside the school building can hide from staff,

access items that could create a safety hazard for the child, and complicate evacuation efforts in

the event of an emergency. A child who elopes to locations outside the school building can

quickly find themselves in a dangerous environment if the child runs into traffic or off of campus

grounds. See Exp. Tr. 229:21-230:22.

acting, and understanding how Student’s behaviors affect others as the function of Student’s

behavior. Ex. D16 at 3.

On September 24, 2025, Student’s IEP team convened another meeting to discuss the

FBA and create a BSP. See Ex. D17. During the meeting, Student’s mother expressed concerns

that Student needed a “1:1”5 to address Student’s behaviors and prevent elopement, noting that

Student’s success at Gladstone stemmed in part from a higher level of adult support. Id. at 1. The

resulting BSP did not include 1:1 support, but did include a range of other interventions and

strategies, notably including the incorporation of art into classwork,6 providing access to snacks

and breakfast, redirecting inappropriate comments, sensory supports, stop signs at exit doors,

teaching replacement words for inappropriate language, teaching zones of regulation, transition

support, providing an alternate location for breaks (or, if eloping, for classwork), and providing

an alternate location with snacks and art to help Student regulate when escalated.7 Ex. D16 at 4-

5. The BSP also noted that Student’s older siblings could be helpful in calming Student down. Id.

at 5. In the immediate aftermath of the implementation of the BSP, Student’s improper behavior

continued. Over the next month, Student continued to use inappropriate language, engage in

inappropriate physical behaviors, and elope from the classroom. See, e.g., Exs. D53, D55.

5 When a student receives 1:1 support, that means that there is an adult in the classroom

assigned to focus exclusively on that student.

6 Student enjoys art and building things, so this strategy was intended to “include

[Student’s] interests in [Student’s] learning.” Ex. D16 at 4.

7 The District maintained a classroom designated as “LC1,” or “learning center 1,” which

was set aside to accommodate children who needed a sensory break, quiet time, or other period

of separation from the regular classroom. Exp. Tr. 77:16-78:5. As the school year progressed,

Student would spend more and more time in LC1 for a wide variety of reasons.

On October 23rd, the IEP team held another meeting, this time to review and amend

Student’s IEP. Exs. D18; D19; D21. The team discussed Student’s escalating behavior. Student’s

mother raised the possibility of half-day kindergarten and expressed concern that the IEP form’s

inclusion of the full range of placement options seemed to be laying the groundwork to send

Student to an alternative school. Ex. D21 at 1; Ex. D19 at 15-16. District staff reassured her that

they strove to educate Student in the LRE and that they were required to include the full range of

placement options on the IEP form. Ex. D21 at 1. The IEP team ultimately made the following

material changes to Student’s IEP:

• SDI for social and emotional behavior increased to 60 minutes per week. Ex. D19 at 11.

• SDI for self-management increased to 60 minutes per week. Id.

• 60 minutes per week of SDI for transitions was added. Id.

• IEP was amended to provide adult support “throughout [Student’s] entire day to support

safety, transitions, and self-regulation.” Id. Importantly, this did not mean that Student

was assigned a specific adult to support Student’s needs. Rather, the support was

intended to be “fluid” depending on what personnel were available. See Ex. D21 at 1.

• Student’s BSP was added to the IEP. Ex. D19 at 12.

• Student’s level of participation in the general education classroom was adjusted down to

40% of Student’s school day. Id. at 13, 16.

Student’s behavioral, emotional, and social challenges continued after the October 23rd

IEP meeting despite the new supports and the implementation of the BSP, culminating on

November 6th. On that date, which included a peak of 37 instances of inappropriate physical

behaviors, Student “began pushing over chairs and other items/furniture,” and hit staff when they

intervened. Ex. D25 at 1. Student spanked a fellow student and called other students names. Id.

When assistant principal Trevor Syring arrived to support, Student hit, kicked, and threw items at

him. Id. District staff ultimately called Student’s mother, and sent Student home early. Id.

On December 2, 2024, the IEP team met for a Manifestation Determination Review

(“MDR”) focusing on the November 6th incident and the fact that Student had been suspended

six times so far that school year.8 See Ex. D25; Ex. D26 at 1. The team determined that Student’s

conduct was a manifestation of Student’s disability. Ex. D25 at 1-2. District staff determined that

the incident was not the result of any failure to implement Student’s IEP, but Student’s mother

disagreed, arguing that Student was not receiving the support Student needed. Ex. D26 at 1. In

particular, she stated her belief that staff were inadequately trained or available and that Student

was inadequately supported during transitions. Id. Importantly, the full team agreed that

“everything we are trying is not decreasing [Student’s] behaviors,” resulting in safety risks both

for Student and others, as well as Student’s needs not being met. Id. at 1-2. District staff also

expressed concern that Student was falling behind academically because of the amount of time

Student spent outside the classroom. Id. at 2. Consequently, District staff raised the issue of

changing Student’s placement, recommending that Student be sent to an alternative school. Id.

Student’s mother protested that the team had not gathered sufficient data to make such a

determination, and speculated that the District’s practice of rotating the adult available to support

Student created unhelpful unpredictability. Id. One team member, Ms. Lacy Norvald, shared her

observation that “in her years of experience she has never seen as many resources brought in on

a student, but . . . still not changing behavior.” Id. Ultimately, the District delayed its

recommendation of an alternative school placement so that Student’s mother could investigate

the possibility of moving Student into the Gladstone School District. Id. at 2-3.

Four days later, on December 6th, Student’s parents emailed the District. Ex. S13 at 1-2.

In the email, they criticized the lack of a dedicated, full-time paraeducator to support Student and

8 Student was out of school for most of November due to a combination of holidays and

injury, accounting for the significant delay between the November 6th incident and the

December 2nd meeting.

protested the recommendation to move Student to an alternative school so soon after the

implementation of Student’s BSP. Id. They requested both a “thorough and impartial review of

all actions undertaken since the BSP’s implementation,” as well as an Independent Educational

Evaluation (“IEE”) to create a more effective IEP. Id. The District declined to offer an IEE

because, they argued, the District was not responsible for conducting an IEE when the

underlying initial eligibility evaluation was conducted by a different organization, CESD. Id.

at 1. They did, however, offer to move up Student’s three-year re-evaluation, which had been

scheduled for 2026. Id. They also followed up by sending a Prior Notice of Special Education

Action to Student’s parents, summarizing the December 2nd meeting and noting that the team

had agreed to put discussion of the District’s recommended change of placement on hold for a

week. Ex. D27 at 1.

For the next two months, Student’s unwanted behaviors continued relatively unabated,

fluctuating modestly but showing little sign of sustained improvement. Inappropriate language,

destruction of school property, physical aggression, and elopement continued to be hallmarks.

See, e.g., Ex. D53, D55. This included multiple instances of hitting teachers and peers, as well as

an incident on January 8, 2025, when Student threatened to go home to retrieve a sibling’s gun,

then return and shoot peers and staff. Id.

On February 5, 2025, the IEP team convened yet another meeting, this time virtually. See

Exs. D30; D31. Unlike previous meetings, this one included an IEP facilitator from ODOE,

Ms. Robin Day. Exs. D30; D37 at 1. The purpose of the meeting was to determine the need for

any additional testing, review Student’s IEP, and conduct an MDR. Ex. D28. Importantly,

though, the meeting also served as an opportunity to discuss an ongoing source of confusion for

Student’s mother: the District’s suspension policies. See Ex. D30 at 2-3. As discussed above,

Student routinely was suspended from school, sent to the principal’s office, or sent home from

school for behavior. But it was not clear to Student’s parents when a removal from class

constituted a suspension. See Tr. 692:15-694:8 (explaining that Student’s mother did not know

that the District was counting certain removals as suspensions until the effort to schedule an

MDR in early November 2025). District staff explained that there was no black or white rule as

to when a suspension should occur, but that any time a child is sent home, the District considers

it a suspension. Ex. D30 at 2. If Student is sent home after 11:00, it is considered a half-day

suspension. Id.

The rest of the meeting focused on the implementation of Student’s BSP. The team

discussed the inadequacy of data collection on Student’s behavioral incidents to that point in the

school year and discovered that important pieces of information were not effectively

communicated to Student’s parents. Id. at 3-5. District staff noted that October had been a

difficult month, and that Student’s behavior had improved “in some areas” since that time due to

an increase in adult support. Id. at 4. The team subsequently revised Student’s data tracking sheet

with the intent of updating Student’s BSP based on the improved data collection. See Ex. D34.

Student’s mother put her request for an IEE “on hold” provided the team continued to work on

improving the BSP. Id. Notably, the District agreed to begin exploring assessments to reevaluate

Student for services under the eligibility category of Autism Spectrum Disorder (“ASD”). Id.

Changes to Student’s BSP were approved on February 18th, and included additional reminders

and structure throughout the day, including a structured recess. Ex. D35.

The team met again for an IEP meeting on February 27th, where they agreed to

re-evaluate Student based developmental disability, ASD, and emotional or behavioral disorder

(“EBD”). Ex. D37; see also Ex. D38 at 3-4 (listing the proposed tests and assessments for

Student’s re-evaluation).

Student continued to struggle with the same behavioral challenges for the remainder of

the school year. The District convened MDRs in response to suspensions on at least six

occasions.

• On March 3rd, Student was suspended for punching other students, refusing to follow the

instructions of District staff, and eloping from the elementary school grounds. Ex. D39.

• On March 5th, Student was suspended for entering the assistant principal’s office to

retrieve Student’s confiscated cell phone, using inappropriate language, and striking the

paraprofessional who was supporting Student while searching for the phone. Ex. D42.

• On March 12th, Student was suspended for hitting a fellow student in the ear and then

running from the assistant principal when asked about the incident. Ex. D49.

• On April 15th, Student was suspended for an extended elopement wherein Student hid

from District staff, as well as for refusing to complete schoolwork, kicking a door, and

punching a paraeducator in the arm, stomach, and leg. Ex. D78.

• On May 8th, Student was suspended for inappropriate language, eloping from Student’s

classroom, and threatening and hitting two staff members. Ex. D88.

• On May 29th, Student was suspended for eloping from the classroom, refusing to do

classwork, inappropriate language, throwing and destroying school property, hitting one

staff member, and trying to hit a second staff member. Ex. D96.

On all these occasions, the team determined that Student’s conduct was not the result

of the District’s failure to implement Student’s IEP, and that it was a manifestation of Student’s

disability. See Exs. D39, D42, D49, D78, D88, D96. As with earlier in the school year, these

suspensions did not reflect the full breadth of Student’s challenges. Student continued to

frequently use inappropriate language towards both classmates and District staff, throw items,

vandalize or destroy property, elope from the classroom, and refuse classwork. Student’s

comments were often alarming. On February 6th, Student told a peer that Student was “going to

kill your parents and your dog.” Ex. D61 at 1. Sometime between February 18th and 21st,

Student made comments about shooting using a sibling’s gun. Ex. D53 at 9. On March 6th,

Student threatened to send Student’s class “to heaven.” Id. at 10. On March 20th, Student told a

paraprofessional: “I’ll kill you.” Ex. D62 at 1. On April 3rd, Student stated that Student

“want[ed] to kill [Student] at school,” Ex. D57, and on April 8th, Student pondered “crack[ing]”

Student’s head open because Student “[didn’t] want to live anymore.” Ex. D58 at 1. On

April 9th, Student wrote a poem that included statements that Student wanted to “grab a knife

and grab my shotgun and I shoot everyone. Then you lock the doors. Then you see the monsters

chasing you. Then you grab the RPG.” Ex. D63. On April 15th, when Student was supposed to

be “cutting out leaves” for a class project, Student instead cut out a paper pistol and began

“shooting” at other students.” Ex. D64. On May 8th, Student told the assistant principal to kill

himself. Ex. D88. From the record evidence, it appears that both District staff and Student’s

parents saw these comments as in keeping with Student’s other inappropriate language, rather

than indicative of any genuine intent to seriously harm himself or others.

Amidst these ongoing challenges, Student’s parents and District staff continued to wrestle

with how best to meet Student’s needs, with the prospect of placement in an alternative school

increasingly the source of disagreement between the two groups. On March 13th, the District

convened another IEP meeting in part to discuss Student’s placement, as well as potentially

shortening Student’s school day, though Student’s mother was not clearly informed that the

meeting would include discussion of an alternative school. Ex. D45; Ex. D47. Student’s mother

sent an email to the District ahead of the meeting expressing concern that the meeting was

premature because it was being held while Student’s re-evaluation and attendant assessments, for

which she had signed consent forms only ten days prior, were ongoing. Ex. D47 at 1-2. She

expressed concern that shortening Student’s school day might undermine the ongoing tests and

requested that the District proceed with an IEE for Student’s FBA. Id.

At the meeting, District staff raised again the possibility of changing Student’s placement

“because the school team has implemented a robust plan to support [Student] and we are still

seeing unsafe behaviors and behaviors that are affecting other students.” Id. at 4. District staff

emphasized that they were a traditional school without the resources to create the specialized or

therapeutic setting that they believed Student needed. Id. at 4-6. They discussed other

alternatives, like homeschool or removing Student from the regular classroom 100 percent of the

time but noted that Student was regressing in Student’s academic skills because Student was

getting less direct instruction from Student’s teachers. Id. at 5. Student’s mother expressed

frustration that she had not been given a Prior Written Notice (“PWN”) that the IEP meeting was

intended to focus on the prospect of sending Student to an alternative school. Id. District staff

informed her that PWNs typically are issued after IEP meetings but before any decisions are

implemented, an assertion with which Student’s mother disagreed. Id. Student’s mother then

stated that she was effectively an observer, rather than a participant, at the meeting until such

time as she could get an attorney. Id. Despite this, the IEP team ultimately determined to place

Student at an alternative school, and to shorten Student’s school day until Student could get a

seat at such a school. Id; see also Ex. D48. Student’s mother then stated again that she would be

contacting a lawyer and initiating a due process hearing, and she invoked Student’s “stay put”

rights.9 Ex. D47 at 6.

9 “Stay put ‘functions as an “automatic” preliminary injunction’ in IDEA cases by

prohibiting changes to a student’s educational placement until the legal dispute is resolved.

Because the injunction is automatic, a student who requests an administrative due process

hearing is entitled to remain in his educational placement regardless of the strength of his case or

the likelihood he will be harmed by a change in placement.” A.D. ex rel. L.D. v. Hawaii Dep’t of

The following day, Student’s mother emailed the District reiterating that she did not

consent to placing Student in an alternative school, stating that the District’s attempt to do so

before completing Student’s re-evaluation was unlawful under 34 C.F.R. § 300.304. Ex. S18.

She took issue with District staff’s past comments that they did not have the personnel to assign

a single paraeducator to Support student on a permanent basis, characterizing those statements as

excuses and accusing the District of not tackling the problem “head-on.” Id. She further accused

the District of violating statutes and regulations regarding FAPE, LRE, parental consent, and

failure to respond to her request for an IEE, and once again invoked “stay put” rights. Id.

On April 11th, the District convened an IEP meeting, during which the IEP team

determined that Student had made progress on Student’s IEP goals and adjusted the goals

accordingly. Ex. D75 at 4. They also determined that, given this progress, Student did not require

extended school year (“ESY”) services. Id. at 5.

Beginning April 17, 2025, the District assigned Mr. Kyle Gilstad to be Student’s primary

paraprofessional, working with Student for most of the day save a two hour period around lunch.

Exp. Tr. 592:3-10, 614:20-615:1. The consistency appeared to make an impact, with Student’s

maladaptive behaviors continuing but noticeably decreasing. Id. 608:20-25; 615:8-618:25. Still,

despite these modest improvements, Student still engaged in unwanted behaviors, sometimes

leading to the aforementioned suspensions and MDRs. Additionally, Student resisted engaging

with the general education classroom, and Mr. Gilstad expressed concern that he could not keep

other children safe when Student was around. Id. 623:1-13.

Educ., 727 F.3d 911, 914 (9th Cir. 2013) (quoting Joshua A. v. Rocklin Unified Sch. Dist., 559

F.3d 1036, 1037 (9th Cir. 2009)).

At the April 22nd MDR reviewing the April 15th incident, Student’s mother again

requested that the District dedicate a single, full-time paraprofessional to provide Student 1:1

support. Ex. D79 at 1. The District declined, opting to assign two paraprofessionals to rotate

responsibilities with Student. Id. In response to a request from Student’s mother, the District also

indicated that it was in the process of contracting with a Board Certified Behavior Analyst

(“BCBA”) to review Student’s FBA and BSP. Id.

Beginning April 23rd, the District began providing make-up SDI time to Student due to

Student’s lost SDI time during Student’s suspensions. Ex. D102; Tr. 162:21-171:5. The District

delivered this make-up time in eight different sessions over the course of late April and May,

totaling 420 minutes of make-up time. Ex. D102 at 1.

On May 27th, the District convened the final IEP meeting of the year. Notably, Ms. Zeis

shared that Student was spending only 20 percent of Student’s time in the general education

classroom, with much of the rest in LC1, and that Student often was not engaging with

schoolwork. Ex. D92 at 3. The team discussed Student’s unwanted behaviors, prompting

Student’s parents’ attorney to argue that the District’s pattern of suspending Student for those

behaviors was making the behaviors worse. Id. at 14. The team also discussed Student’s

placement, but Parents’ attorney argued that the discussion was not useful because the District

had already predetermined Students’ placement. Id. District staff disagreed that they had

predetermined Students’ placement. Id. Student’s mother also related her impression from a visit

to Heron Creek, the therapeutic school that appeared to be the District’s preferred placement for

Student. She described an environment with very little structure and peers that were “severely

disabled,” which the Court understands to mean that the children she saw there did not appear to

be on the same cognitive level as Student.10 Ex. D92 at 14. The team also added a previous email

from Student’s mother to the parent input section of the IEP. In the email, Student’s mother

informed the District that Student had received a formal autism diagnosis on April 29th. Ex. D91

at 4-5. She also requested that Dr. Maria Gilmour, a PhD-level BCBA, be allowed to develop a

new FBA and BSP for Student and requested ESY services. Id. The school did not grant either

request. The school year ended on June 12, 2025. Ex. D74 at 12.

PROCEDURAL HISTORY

On March 19, 2025, Parent filed a request for a due process hearing with the Oregon

State Superintendent of Public Instruction, initiating an administrative case against the District.

Parent alleged that the District violated federal and state statutes, federal regulations, and state

administrative rules. Parent raised seven primary errors, usually with subsets of alleged errors

within most categories. ODOE referred the matter to the Office of Administrative Hearings, who

assigned ALJ Triana.

On April 4, 2025, the District filed a Motion seeking an order from the ALJ for a 45-Day

IAES to send Student to an alternative school—Heron Creek or Serendipity Center. The

District’s motion was under Oregon law, invoking the Oregon Administrative Rules (“OARs”).

ALJ Triana held an expedited videoconference hearing on the Motion from April 30th to May

2nd. Both parties were represented by counsel. ALJ Triana heard testimony from 11 witnesses.

She issued a Final Order on May 23rd denying the Motion (“Expedited Order”). ALJ Triana

concluded that the District failed to show that Student was substantially likely to engage in

10 It is not clear at what point in the school year Heron Creek became an option under

discussion as a possible placement for Student; however, by March 2025, Student’s mother was

reaching out to Heron Creek staff to ask about their program. Exp. Tr. 638:17-639:20. The other

therapeutic school under consideration was Serendipity Center. Exp. Tr. at 101:14-21.

injurious behavior “to Student or others if Student remains in Student’s current placement” under

OAR 581-015-2445(1)(b). See Expedited Order at 39-40. She also concluded that the District

failed to show that the alternative placing met the requirements of OAR 581-015-2430(3), to

comply with OAR 581-015-2435(2) and ensure that Student would continue to participate in

Student’s general curriculum and progress toward achieving the goals in Student’s IEP. Id.

at 41-42.

ALJ Triana presided over the due process videoconference hearing from June 10-12 and

on June 26th. Both parties were again represented by counsel. ALJ Triana heard testimony

from 10 witnesses. She issued a Final Order on August 15, 2025. She found the following

violations:

• The District denied Student a FAPE from January 28th to May 12th by failing to

deliver all of Student’s SDI while Student was suspended.

• The District denied Student a FAPE from January 28th to May 12th when it

improperly changed Student’s placement by imposing more than ten cumulative days

of disciplinary removal in violation of OAR 581-015-2415.

• The Student’s BSP was inappropriate and failed to provide a FAPE starting on

December 2, 2024.

• The District denied Student a FAPE when, in March, it changed Student’s placement

to a therapeutic day school instead of considering additional supports and services to

maintain Student in the LRE.

• The District denied Student a FAPE from December 2nd to May 12th by failing either

to conduct a new FBA or review and modify student’s BSP following the December

2nd MDR.

The ALJ ordered to remedy these violations that the District hire an independent

behavioral specialist with experience conducting FBAs for students in a school-setting to

conduct a new FBA; convene an independently facilitated IEP meeting, including the behavioral

specialist, to develop a new BSP and IEP and to determine Student’s placement; and provide 200

hours of compensatory education, 60 hours of which must include SDI and related services.

The District appeals to this Court all violations found by the ALJ in both Final Orders.

The District also appeals the remedy ordered by the ALJ.

DISCUSSION

A. Deference

As discussed above, the courts give “particular deference where the hearing officer’s

administrative findings are ‘thorough and careful.’” R.B., 496 F.3d at 937 (quoting Union Sch.

Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)). Here, both of the ALJ’s Final Orders are

extremely thorough, evincing a careful effort to synthesize and weigh a voluminous

administrative record and lengthy testimony. Though the District argues several times in its

various filings that the ALJ’s findings and conclusions are internally inconsistent, the Court finds

that those arguments generally are based on the District’s misunderstandings of various ALJ

findings, not any logical inconsistency on the ALJ’s part. Thus, the Court gives the ALJ’s

findings and conclusions not just due weight but particular deference.

B. ALJ’s Final Order on the District’s Motion for a 45-Day IAES

The District appeals the ALJ’s Final Order on the District’s Motion for a 45-Day IAES

(the “Expedited Order”). The District argues that the ALJ erred by applying the wrong legal

standard and in her finding that the District failed to provide evidence that their proposed

placement would meet Student’s needs. Each alleged error is addressed in turn.

1. The ALJ applied the correct legal standard to District’s motion

The District sought to place Student in an IAES for 45 days while these proceedings and

possible appeals were ongoing. During any IDEA proceeding, absent agreement, “the child shall

remain in the then-current educational placement of the child.” 20 U.S.C. § 1415(j). This is

known as the “stay put” provision. A school district may, however, place a student in an

alternative setting for no more than 45 days under certain special circumstances, involving

weapons, drugs, and the infliction of serious bodily injury. Id. § 1415(k)(1)(G); see also

OAR 581-015-2360(5)(a)(C). A district also may request that an ALJ order such a placement,

which requires that the ALJ “determine[] that maintaining the current placement of such child is

substantially likely to result in injury to the child or to others.” 20 U.S.C. § 1415(k)(3)(B)(ii)(II);

see also OAR 581-015-2360(5)(a)(D) (providing that the ALJ may order such placement “due to

the substantial likelihood of injurious behavior”). Meeting one of those exceptions is a high bar,

as the stay-put provision “effectively creates a presumption in favor of the child’s current

educational placement.” Honig v. Doe, 484 U.S. 305, 328 (1988).

Here, the District moved for an order under Oregon’s regulation, which allows the ALJ to

order placement after finding a substantial likelihood of “injurious behavior.” OAR 581-015-

2360(5)(a)(D). “‘Injurious behavior’ means behavior that is substantially likely to result in injury

to the child or others,” OAR 581-015-2430(1), which is text directly from the federal statute

allowing for ALJ placement.

In her Expedited Order, ALJ Triana noted that Oregon law does not further define what

amounts to an injury but explained that it must be different from and less severe than the

separately defined term “serious bodily injury.”11 Expedited Order at 39. She considered the

decisions of three other ALJs ruling under § 1415(k)(3)(B)(ii). Those decisions do not apply a

consistent rule.12 Ultimately, the ALJ found that Student had engaged in unsafe and potentially

11 Oregon law defines “serious bodily injury” as “any significant impairment of the

physical condition of a person, as determined by qualified medical personnel, whether self-

inflicted or inflicted by someone else.” Or. Rev. Stat. § 339.285(4). Under the IDEA, it is

defined as bodily injury that involves “(A) a substantial risk of death; (B) extreme physical pain;

(C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of

a bodily member, organ, or mental faculty[.]” 18 U.S.C. § 1365(h)(3); see also 20 U.S.C.

§ 1415(k)(7)(D) (referencing that criminal provision for the applicable definition).

12 Compare Corona-Norco Unified Sch. Dist., 125 LRP 4096 (2025) (finding a 7-year-old

with emotional disability and other health impairments substantially likely to cause injury when

injurious behavior throughout the preceding school year and likely would continue to do so. But

ALJ Triana ultimately did not hold that the District had shown a substantial likelihood of future

injurious behavior in large part because Student’s past behavior had not resulted in any injuries.

In other words, although Student’s conduct had been unsafe and would likely continue to be so,

the result of that conduct had not been injurious and thus it is not substantially likely that it

would suddenly become injurious.

The District argues that in reaching this conclusion, the ALJ applied an arbitrarily high

standard fundamentally at odds with the law. See Appellant’s Brief at 9-10 (ECF 8). The District

argues that the ALJ essentially required the District to show that Student had previously caused

actual injury to himself or others. Id. at 12-15. That is not what the ALJ did. Rather, she stated

that past behavior was a good predictor of future behavior. Over the previous school year,

District staff had been able to prevent Student’s potentially injurious behavior from escalating

into actual injury, and the ALJ thus concluded that the continued normal intervention by District

staff would prevent Student’s future behavior from escalating into injury.13

the child repeatedly stabbed staff member with pencil, assaulted peers and staff, and threatened

to “shoot” or “kill everyone” even after six MDRs, 18 suspensions, and IEP and BSP revisions)

with Saddleback Valley Unified Sch. Dist., 52 IDELR 56 (2009) (declining to find that a 13-year-

old was substantially likely to cause injury after he threatened peers, even though the child had a

history of IAES placement due to injurious behavior, because of evidence that the child’s self-

control had improved).

13 The Court agrees with the ALJ’s interpretation of OAR 581-015-2360(5)(a)(D).

Although that regulation describes only “injurious behavior” without reference to downstream

effects OAR 581-015-2430(1)’s definition of injurious behavior provides the needed clarity. It

limits “injurious behavior” only to include behavior that is substantially likely to result in injury.

In combination, these provisions comport with the IDEA’s requirements in 20 U.S.C.

§ 1415(k)(3)(B)(ii)(II). Thus, if routine intervention is likely to prevent an injury stemming from

a child’s potentially injurious behavior, then a temporary change in placement would not be

permitted.

The ALJ noted that the District had provided no evidence to show that circumstances had

changed such that there would be any expectation of different behavior by Student in the future

to give rise to a concern of injury. That is to say, the District was arguing that a different result

would occur from the same type of conduct by the same child. The ALJ rejected this as

insufficient to show a substantial likelihood of injury. The Court agrees. Nowhere in the record

does the District show that Student’s behavior has become or is likely to become more

dangerous. For example, the District does not contend that Student has grown substantially in

size or strength, brought weapons to school, or adopted new tactics more likely to result in

injury. If Student’s behavior is likely to remain substantially the same, and that behavior has not

resulted in injury in the past, then it is difficult to see how the District has shown a future

substantial likelihood of injury. Therefore, the District fails to overcome the presumption in

favor of keeping Student in place during the pendency of due process hearings and appeals.

The District also contests the ALJ’s discussion of whether the District showed that it had

taken reasonable steps to minimize Student’s risk of causing injury before pursuing an IAES,

despite the ALJ’s conclusion that the District had successfully made such a showing.14 As a

14 The District rightly points out that Oregon regulations do not require such a showing in

support of an IAES. The ALJ discussed a non-precedential decision from the Eighth Circuit,

Light v. Parkway C-2 Sch. Dist., which included the “reasonable steps” requirement as an inquiry

necessary “to ensure that the school district fulfills its responsibility under the IDEA to make

available a ‘free appropriate public education . . . for all handicapped children . . . .’” 41 F.3d

1223, 1228 (1994). The court noted 20 U.S.C. § 1412(5)(B)’s requirement that removal of

handicapped children from the regular educational environment was only permissible when

“education in regular classes with the use of supplementary aids and services cannot be achieved

satisfactorily.” It then justified the reasonable steps test on the grounds that “a district court

should be satisfied that the school district has made reasonable use of ‘supplementary aids and

services’ to control the child's propensity to inflict injury.” Light, 41 F.3d at 1228.

The ALJ then acknowledged that no such test existed in Oregon. Indeed, the Ninth

Circuit has not adopted the reasonable steps test. But, she explained, “[w]ithout a standard

requiring that a school district take reasonable steps to minimize the likelihood that a student

general rule, “[a] prevailing party usually may not appeal a decision in its favor.” Ruvalcaba v.

City of Los Angeles, 167 F.3d 514, 520 (9th Cir. 1999). Thus, the Court will not entertain the

District’s arguments about the ALJ’s finding that the District took reasonable steps to minimize

Student’s risk of causing injury.

2. The District did not provide adequate evidence that IAES would meet Student’s

needs

To obtain an order from an ALJ to change a child’s placement to an IAES, the IAES

“must meet the requirements of OAR 581-015-2435(2).” OAR 581-015-2430(3). That regulation

requires that the IAES “[e]nable the child to: (a) Continue to participate in the general

curriculum, although in another setting; and (b) Progress toward achieving the goals in the

child’s IEP.” OAR 581-015-2435(2). Here, the ALJ found that the District provided limited

evidence about the programming available at Heron Creek. This evidence included some

testimony at the administrative hearing and a copy of the Heron Creek handbook. But the District

“failed to provide any evidence regarding how Student would be able to continue to participate

in the general curriculum while at Heron Creek and/or Serendipity Center.” Expedited Order

at 41.

would cause injury to self or others, a school district could take no steps to minimize the risk of

injury and seek placement of a student into an interim alternative educational setting for injurious

behavior.” Expedited Order at 40-41.

The Court agrees that such an inquiry is appropriate for two reasons. First, though the

Ninth Circuit has not adopted the reasonable steps test, the plain meaning of 20 U.S.C. §

1412(5)(B)’s text requires some consideration of the supplementary aids and services that a

school used to satisfactorily achieve education in the regular classroom before resorting to

removal. Second, the text of both OAR 581-015-2430(1) and 20 U.S.C. § 1415(k)(3)(B)(ii)(II)

demand it, as previously explained. Those provisions allow for the District to petition an ALJ for

an IAES order for behavior substantially likely to result in injury to the child or others. There is

no way to determine if a child’s behavior is likely to cause such a result without accounting for

the environment in which the behavior is occurring, including the extent to which school staff

have attempted to mitigate those behaviors.

In objecting to the ALJ’s decision, the District argues that that it did, in fact, provide such

evidence, pointing to Dr. Jill Bennett’s hearing testimony. That testimony includes Dr. Bennett’s

description of Heron Creek as a “specialized school[]” that “provides really a comprehensive

array of services for students who need more specialized assistance,” addressing behavioral,

mental health, social, emotional, and academic needs. Exp. Tr. at 43:5-12. It also includes her

determination that Heron Creek was an appropriate placement for Student where Student would

receive “more academic benefit.” Id. at 105:8-11; 108:14-17. After reviewing the record below,

the Court also finds material Dr. Bennett’s testimony that Heron Creek is a locked down campus

with secure entry that is ideal for students with elopement issues. Id. at 104:22-105:7. She

acknowledged, however, that that she had never been to Heron Creek. Id. at 44:15-16. Dr.

Bennett’s testimony included almost nothing about Serendipity Center, other than that it was

similar to Heron Creek but privately owned. Id. at 45:9-12. Ms. Williams also discussed Heron

Creek in her testimony, but similarly did not specifically address how the placement would allow

Student to continue making progress towards Student’s IEP goals.15 Moreover, as the ALJ

discussed in her Expedited Order, outside of Dr. Bennett and Ms. Williams’ testimony and the

Heron Creek handbook, there is little else in the record to show how the proposed IAES enables

Student’s continued participation in the general curriculum or progress towards achieving

Student’s IEP goals.

These largely generalized descriptions of Heron Creek—one of two placement options

under consideration—are not enough to meet the requirements of OAR 581-015-2435(2). The

District must show specifically how Student will be able to continue participation in the general

15 At the later due process hearing, Ms. Williams also testified that Heron Creek’s small

class sizes, high adult-to-student ratio, and specialized instruction made it a good place for

Student, and that she believed the school could implement Student’s IEP. Tr. 106:13-107:14.

curriculum and progress towards achieving Student’s IEP goals, explaining the precise

programming or other characteristics of the proposed IAES that meet the regulatory

requirements. This standard is in keeping with the overall architecture of the IDEA, which is

designed to ensure that educational agencies provide plans and services are “reasonably

calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Endrew F, 580 U.S. at 399 (discussing the requirements of an IEP); see also G.D. obo G.D. v.

Utica Cmty. Schs., 2023 WL 2719426, at *5 (E.D. Mich. Mar. 30, 2023) (affirming ALJ’s

finding that placement in IAES violated IDEA because it did not provide the “services and

support” sufficient to constitute a FAPE). Here, the District has wholly failed to specifically

show how the proposed IAES would meet the regulatory requirements, and the Court thus

affirms the ALJ’s decision to deny the District’s motion for an order to temporarily change

Student’s placement.

C. ALJ’s Final Order on Due Process Complaint

The District also appeals the ALJ’s Final Order on the due process complaint. The

District argues that the ALJ erred in reaching all five violations and in the remedy imposed. Each

alleged error is addressed in turn.

1. Whether the December 2, 2024 MDR Required New Action by the District

The District raises several arguments against the violations found by the ALJ as a result

of the December 2nd, 2024 MDR. The ALJ found that the District denied the Student a FAPE

from December 2nd, 2024 to May 12th, 2025 “by failing to either conduct a functional behavior

assessment or review the behavior support plan and modify as necessary to address student’s

unwanted behavior subsequent to the MDRs in violation of OAR 581-015-2415(4)(b).” Final

Order at 87. The ALJ also stated that “Student’s BSP was inappropriate and did not provide

Student a FAPE starting on December 2, 2024.” Id. at 96. The District argues that the ALJ

misapplied OAR 581-015-2415, failed to consider evidence that the District reviewed and

updated Student’s BSP in both February and March 2025, and improperly ordered a new FBA or

review of the BSP without proper parameters.

a. The ALJ properly applied OAR 581-015-2415

Oregon regulations require that “[w]ithin 10 school days of any decision to change the

placement of a child with a disability because of a violation of a code of student conduct, the

school district must determine whether the child’s behavior is a manifestation of the student’s

disability.” OAR 581-015-2415(3).

A disciplinary removal is considered a change in educational

placement and the school district must follow special education

due process procedures if:

(a) The removal will be for more than 10 consecutive school days

(e.g. expulsion); or

(b) The child will be removed for more than 10 cumulative school

days from their current educational placement in a school year, and

those removals constitute a pattern under OAR 581-015-2410(2).

OAR 581-015-2415(1).

In finding a violation of this provision, the ALJ relied on 34 C.F.R. § 300.530(f) and

OAR 581-015-2420.16 Final Order at 108-10. These provisions explain how a school shall

determine whether conduct is a “manifestation of the child’s disability” and, if it is, what the

school must do.

16 OAR 581-015-2420 is substantively the same as 34 C.F.R. § 300.530(e), and thus the

ALJ could have relied solely on the federal regulations. Similarly, OAR 581-015-2415(4) is

substantially similar to 34 C.F.R. § 300.530(e). The ALJ invokes both of these provisions, which

have the same requirements of what a district must do after a manifestation determination is

made.

The District explains that, on December 2nd, Student had been suspended from school

only six times that academic year, not ten, and thus its staff had been proactive in convening an

MDR they were not yet legally required to conduct. The District argues that because the decision

to convene the MDR was optional, the decision to carry out the substantive requirements

attendant to an MDR was also optional. This included any obligation to review or modify an

ineffective BSP. Indeed, the District states, the ALJ’s Final Order “risks discouraging school

districts from convening MDRs any earlier than legally required.” Appellant’s Brief at 20

(ECF 8).

This argument is unconvincing. As the Ninth Circuit has held on numerous occasions,

school districts “must comply both procedurally and substantively with the IDEA.” M.L. v. Fed.

Way Sch. Dist., 394 F.3d 634, 644 (9th Cir. 2005) (citing Rowley, 458 U.S. at 206-07) (emphasis

added). The District is correct that they were not obligated to convene an MDR following the

November 6th suspension (the focus of the December 2nd MDR). But after the IEP team

convened the MDR and determined that Student’s behavior on November 6th was a

manifestation of Student’s disability, the IEP team was obligated to fulfill the substantive

requirements of OAR 581-015-2415(4)(b)(B): to “review the behavioral intervention plan and

modify it, as necessary, to address the behavior.” Indeed, there is no authority creating an

exception to these requirements just because the school was not required to convene the

underlying MDR in the first place. Recognizing such an exception here would undermine the

substantive purpose and benefit of an MDR: the opportunity to create an effective plan to deal

with behavioral issues determined to be a manifestation of a child’s disability.

Additionally, as Student explains, the IDEA requires an MDR “within 10 school days of

any decision to change the placement of a child with a disability because of a violation of a code

of student conduct.” 34 C.F.R. § 300.530(e)(1). At the December 2nd meeting, District staff

recommended changing Student’s placement to an alternative school, and spent a substantial

portion of the meeting discussing that recommendation. That is exactly the sort of change in

placement that the law contemplates. Student argues that the December 2nd MDR was convened

because the District had determined to make that change in placement recommendation, and thus

the MDR was mandatory and not optional, regardless of how many suspensions Student had. If

the December 2nd MDR had not been convened for that purpose, then after having made the

decision to recommend that change in placement, the District would have been required to

convene an MDR within 10 school days.

As for the District’s argument that the ALJ’s determination, and this Court’s affirmation

of it, will dissuade LEAs from convening MDRs earlier than required in the future, their

argument appears to be that the Court must not enforce the IDEA’s full substantive standard out

of fear that school districts will hide from the facts that might trigger that standard rather than

appropriately respond when such facts arise. There are two flaws in this argument.

First, the argument presupposes that schools regularly will encounter situations in which

a student’s conduct gives rise to a belief that an early MDR is needed, discover facts in that early

MDR that would trigger a need for re-evaluation, and then not want to perform such evaluations.

That hypothesis is too speculative to support a determination that an early MDR cannot trigger

any subsequent substantive obligations. Further, the Court does not share the District’s

speculation because it has more faith in Oregon’s educators. The Court declines to absolve the

District of its obligations under the IDEA and Oregon law on the assumption that Oregon

teachers and administrators generally seek to avoid doing their best for their students.

Second, the Court sees in affirming the ALJ’s decision no meaningful incentive to avoid

scheduling early MDRs when they might be helpful in meeting a child’s needs. That is because

regardless of a school district’s legal obligations under Oregon’s regulations in such a situation,

they remain beholden to the IDEA’s broader requirement to amend IEPs when new information

alerts them to the need for a change, as discussed below. Thus, school districts would be required

to consider changes to an apparently ineffective BSP regardless of whether they convened an

MDR.

The District further argues that the ALJ applied an inappropriately high legal standard in

finding that it was required to revise student’s BSP following the December 2nd MDR because

“the ALJ’s conclusions eliminate the MDR team’s discretion in determining whether a revision

to the BSP was necessary.” Appellant’s Brief, ECF 8 at 21. As the District accurately explains, if

a Student’s behavioral infraction is found to be a manifestation of Student’s disability, and an

FBA already exists, OAR 581-015-2415(4)(b)(B) and 34 C.F.R. § 300.530(f)(1)(ii) require the

District only to “review the behavioral intervention plan and modify it, as necessary, to address

the behavior” (emphasis added). The words “as necessary,” the District contends, give the MDR

team discretion to revise the BSP as it sees fit. They are correct, as far as it goes. Indeed, courts

have held that the MDR team is required only to review the BSP under such circumstances, not

necessarily change it. See, e.g., Farmer v. Union Cnty. Bd. of Educ., 2025 WL 209168, at *5

(W.D.N.C. Jan. 15, 2025) (holding that an LEA did not commit procedural error when, at an

MDR, it reviewed a BSP and determined that revisions were inappropriate).

But while the District is right on the law, their argument assumes facts not reflected in the

record. The District’s own exhibits show that there was no serious discussion of whether the BSP

needed to be changed at the December 2nd MDR. The meeting notes show that, after

determining that Student’s November 6th behavioral incident was a manifestation of Student’s

disability, the IEP team noted that “everything we are trying is not decreasing [Student’s]

behaviors.” Ex. D26 at 1. There is no indication that there was any discussion of revisions that

might be helpful, or even discussion ultimately resulting in a determination that revision was

unnecessary or inappropriate. Instead, the notes reflect that almost all the discussion at the

December 2nd MDR related to changing Student’s placement to an alternative school. Id. The

Manifestation Determination form also includes no record of any meaningful discussion of

possible revisions to Student’s BSP, though the District quickly followed the Manifestation

Determination with a Prior Notice of Special Education Action proposing a change in Student’s

placement. See Ex. D25.

Testimony at the administrative hearing also showed the lack of meaningful discussion

about whether changes to Student’s BSP were necessary. Describing the meeting, Abby

Williams stated that “[w]e reviewed the IEP and how [Student’s] services were being met. We

also talked about placement and possibly the need for a different placement.” Tr. 108:5-8. She

did not recall whether any changes were made to Student’s services. Id. 108:17-19. Trevor

Syring stated that the MDR included conversation about “what changes [d]o we need to make in

order to best serve [Student],” but in continuing his description of the meeting, primarily

discussed the conversation about a change in placement. Id. 340:19-341:24. Neither he nor Ms.

Williams mentioned any other potential BSP changes raised at the MDR. Student’s mother was

blunt about the proceedings: “[T]hat entire meeting was geared towards them presenting data

that would support them moving [Student].” Tr. 705:8-10. In short, there is no statutory or

regulatory requirement that the District revise a BSP because they convened an MDR. But they

are required to review it to determine if revisions are necessary, and that review must be more

than perfunctory. It is not enough to repeat what services a student is receiving, state that those

services are not working, and then proceed quickly to lengthy discussions of placement change.

The administrative record indicates that is exactly what the District did.

Additionally, the IDEA levies more obligations on the District than just those associated

with convening an MDR. The District is responsible for providing a FAPE to Student on an

ongoing basis. That responsibility exists independent of the convening or results of an MDR. It

includes an obligation to ensure that Student’s IEP, inclusive of Student’s BSP, is reasonably

calculated to enable Student to make progress appropriate to Student’s circumstances. See, e.g.,

Endrew F., 580 U.S. at 399. To meet that obligation, LEAs “[have] an affirmative duty to review

and to revise, at least annually, an eligible child’s IEP.” Anchorage Sch. Dist. v. M.P., 689 F.3d

1047, 1055 (9th Cir. 2012) (citing 20 U.S.C. § 1414(d)(2)(A), (4)(A); 34 C.F.R. §§ 300.323(a),

300.324(b)(1)) (emphasis added); see also D.H. v. Etiwanda Sch. Dist., 2014 WL 12852454, at

*27 (C. D. Cal. Mar. 31, 2014) (finding that an LEA denied a FAPE when it relied on an

outdated IEP). The statutory requirement to update an IEP at least annually suggests that there

are circumstances in which schools should conduct such an update between the mandatory yearly

deadlines. Courts have found that IEPs are outdated when they do not reflect current assessments

of the child. See, e.g. Amanda J., 267 F.3d at 881-82; D.S. ex rel. Clarenore S. v. Dep’t of Educ.,

Hawai’i, 2013 WL 6047200, at *3, 5 (D. Haw. Nov. 14, 2013) (finding that where a school

district developed IEPs but failed to “consider the most recent information available,” “that

[s]tudent was denied a FAPE”); V.B. v. Monroe Bd. of Educ., 2026 WL 867184, at *13 (D. Conn.

Mar. 30, 2026) (finding that where a school district obtains an evaluation “but fails to update the

student’s IEP to reflect that information or otherwise incorporate the evaluator’s findings, the

district denies the student a FAPE because the IEP is not based on current, accurate evaluative

data and does not address all of the student’s identified needs”). Moreover, inherent in Endrew

F.’s holding that an IEP be calibrated to the student’s unique needs is a requirement that it be

calibrated to meet the student’s current needs. Otherwise, the IEP is not “reasonably calculated

to remediate and, if appropriate, accommodate the child’s disabilities so that the child can make

progress in the general education curriculum.” See M.C., 858 F.3d at 1201 (quotation marks

omitted). Thus, the District’s continuous obligation to provide FAPE to Student included an

obligation to update Student’s IEP, including Student’s BSP, when there was evidence that it was

not working.

At the December 2nd MDR, District staff acknowledged that Student’s BSP was not

working. The record confirms their assessment. At best, Student’s behavioral challenges

throughout the first half of the 2024-25 school year had remained constant. At worst, they had

increased. As the ALJ explained in her Final Order, there was more than enough evidence by

December 2nd to show that the existing BSP was failing and that change was required if Student

was to make any progress towards Student’s IEP goals, access the general curriculum, or

otherwise receive FAPE. But instead of choosing to consider meaningful revisions to an outdated

BSP, including those that Student’s mother ultimately suggested, the District focused on a

change of placement.

b. The ALJ did not fail to consider evidence of changes to Student’s BSP in

February and March 2025

The District further argues that the ALJ erred in her finding because she did not

appropriately consider the changes that the District made to Student’s BSP in February and

March 2025. The ALJ did not ignore those changes. She found them, along with the District’s

other efforts to implement Student’s BSP, to be substantively inadequate. See Final Order at 111.

Additionally, the District contends that the ALJ violated the “Snapshot Rule,”

inappropriately judging the substantive validity of those changes through the benefit of

hindsight. In the Ninth Circuit, courts do not consider the adequacy of IEP or MDR team

decisions through hindsight. See, e.g., Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).

Rather, those decisions are judged based on their reasonableness at the time they were made. Id.

In the ALJ’s brief discussion of the February and March changes to the BSP, she states

that the February changes were “too little, too late,” that Student’s behaviors continued after the

February changes, and that in March, the MDR team “failed to modify the BSP beyond adding a

backpack check.” Final Order at 111. This discussion is part of a longer narrative about Student’s

ongoing behavior after the December 2nd MDR and the District’s ongoing failure to make any

more than minor changes to the BSP intended to address those behaviors. Viewed in that context,

the ALJ does not arrive at her conclusion that the February and March changes were

substantively inadequate because, with the benefit of hindsight, it is clear they did not work.

Rather, those conclusions were based on data that was readily available to the MDR team

beginning December 2nd that showed the BSP to be dramatically ineffective and in need of

fundamental reimagining—data that informed the District’s own contemporaneous belief that the

BSP was failing.

c. The ALJ did not err in ordering a new FBA

The District also takes issue with the ALJ’s decision to order a new comprehensive FBA,

raising two primary arguments. First, it argues that the ALJ’s Final Order included

determinations that, as of the December 2nd MDR, the District was required either to formulate

a new FBA or to review the existing BSP, but provided little analysis to distinguish when either

option should be selected. Relatedly, the District states, the ALJ did not identify how the existing

FBA was deficient.17 This argument is unconvincing.

The ALJ’s primary finding was that as of December 2nd the existing BSP, informed by

the original FBA, “was inappropriate and did not provide Student a FAPE.” Final Order at 86;

see also id. at 123 (explaining that as of December 2nd, “it should have become apparent to the

District that the BSP needed to be modified,” “the District violated the IDEA and denied Student

a FAPE by failing to modify Student’s BSP after December 2, 2024,” and that the “BSP was no

longer adequate” as of December 2nd). While the ALJ did not engage in substantial discussion

on the problems with the FBA itself, the logic underpinning her remedy is clear. “If the District

was unable to determine what additional interventions would be helpful for Student, it may have

needed to have another individual conduct a second FBA, or otherwise sought outside support to

modify Student’s BSP.” Final Order at 111. There is no indication that the District was ever able

to determine additional helpful interventions within the confines of the existing FBA-backed

BSP. Thus, it should have looked to conduct another FBA or to modify the BSP.

In considering Parent’s request for a comprehensive, new FBA, the ALJ noted the

District’s failure to modify the BSP after it “reasonably should have been aware that the BSP

was ineffective in addressing Student’s unwanted and inappropriate behaviors,” meaning

December 2nd. Final Order at 134. The ALJ then discussed the District’s several other failures.

Id. Ultimately, the ALJ opted for the more comprehensive course of action. The resulting

17 The District also points out that the ALJ explicitly found that Student’s parent had

failed to establish that the FBA was deficient at the time it was developed. See Final Order at

108. This argument, however, misses the point. The ALJ determined that under Oregon law and

the IDEA, after the District became aware on December 2nd that the existing approach to

managing Student’s behavior, as codified in the existing FBA-backed BSP, was substantively

deficient, the District was required to take action. That the FBA originally was not deficient says

nothing about whether after December 2nd the District was required to update that FBA.

decision to order a new FBA was within her equitable powers. See Forest Grove Sch. Dist. v.

T.A., 557 U.S. 230 (2009). Here, noting the careful and thorough nature of the Final Order, the

Court defers to the ALJ’s determination.

Second, the District argues that it was already in the process of hiring a mutually-

agreeable independent evaluator, and that this should have obviated the need for the ALJ’s order.

It did not. The ALJ had the authority to order a mutually-agreeable evaluator regardless of any

similar yet unfinished efforts by the District. The ALJ’s remedy acts as a backstop to ensure that

the evaluator is actually hired and that the selection process is a collaboration between the

District and Student’s parents. If the District is already in the process of complying with the

ALJ’s order, so much the better.

2. Whether the District failed to provide a FAPE from March 3rd to May 12th due

to missed SDI time

The District argues that the ALJ made a second major mistake in her Final Order when

she found that the District failed to provide SDI to Student between the dates of January 28,

2025, and May 12, 2025. Specifically, the District asserts that the ALJ miscalculated the number

of times Student was suspended and failed to consider evidence that the District cured any

alleged failure to provide SDI during disciplinary removals.

a. The ALJ incorrectly calculated the number of Student’s removals

As previously discussed, an LEA may remove a student from the classroom for ten

cumulative school days before it is considered a change in placement. OAR 581-015-2405.

Under that ten day threshold, the LEA is not required to provide general or special education to

the removed student during the period of removal. Id. Once the threshold is met, however, the

LEA is required to provide the removed student with special services, including SDI, during any

subsequent removals. OAR 581-015-2415. Suspensions of half a day or less count as a half-day

removal, while suspensions of more than half a day count as a full-day removal. OAR 581-015-

2405(3).

The ALJ calculated that Student’s tenth day of removal during the 2024-2025 school year

was January 24, 2025. Final Order at 111. Thus, she determined that the District was required to

provide SDI to Student beginning with Student’s eleventh suspension on January 28, 2025. The

District disputes as erroneous the ALJ’s decision to count two days when Student spent an hour

in the principal’s office due to dysregulation, September 6 and 17, 2024, as half-day removals.

The District provides no caselaw or other argument supporting their categorization of the two

incidents, and asserts that they were not removals. With those two incidents not included in the

calculation of Student’s disciplinary removals, the District contends that Student’s tenth

suspension was January 28, 2025, and thus their obligation to provide SDI during removals did

not mature until Student’s alleged eleventh suspension on March 3, 2025. In Student’s Response,

Student argues that the calculation of suspensions is precisely the sort of factual determination on

which the Court should show deference to the ALJ. At bottom, the disagreement is whether the

District owes the Student SDI for a single additional day of removal.

Oregon regulations define a disciplinary removal as any “suspension, expulsion, or other

removal,” but excludes from the definition “In-school suspensions if the child continues to have

access to the general curriculum and to special education and related services as described in the

child’s IEP, and continues to participate with children without disabilities to the extent they

would in their current placement.” OAR 581-015-2400(3) (emphasis added). While there is no

apparent regulation or caselaw further defining a removal, the plain meaning of the term is “to

change the location, position, station, or residence of.” Remove, MERRIAM-WEBSTER.COM,

https://www.merriam-webster.com/dictionary/remove (last visited July 2, 2026). Based on this

definition, Student’s trips to the principal’s office on September 6 and 17, 2025, certainly were

removals. Thus, the question is whether those removals fell into the in-school suspension

exception to OAR 581-015-2400(3). It does not appear so, because during the time that Student

was in the principal’s office, Student did not technically have access to the general curriculum.

But courts “should reject interpretations of statutes or regulations which ‘produce an

unjust, unreasonable, or absurd result.’” Maceren v. Dist. Dir., Immigr. & Naturalization Serv.,

Los Angeles, Cal., 509 F.2d 934, 941 (9th Cir. 1974) (citing In re Petition of Vacontios, 155 F.

Supp. 427, 430 (S.D.N.Y. 1957)); see also Painter v. Atwood, 912 F. Supp. 2d 962, 965 (D. Nev.

2012) (“It is well established maxim that statutes cannot be interpreted in such a way as to

produce absurd results”); Chowdhury v. Ashcroft, 241 F.3d 848, 853 (7th Cir. 2001) (holding that

regulations “should not be so strictly interpreted as to provide unreasonable, unfair, and absurd

results”); U.S. v. Cheek, 586 F. Supp. 2d 1099, 1108 (D. Ariz. 2008) (“[U]nless such an

interpretation leads to an absurd result, the plain meaning of a regulation controls the Court’s

interpretation of the regulation” (citing U.S. v. Bucher, 375 F.3d 929, 932 (9th Cir. 2004)). Here,

a plain reading of the regulation produces just such an absurd result. While Student did not have

immediate access to the general curriculum in the principal’s office, Student did have access to

the adult support that Student’s IEP requires. Additionally, the entire point of sending Student to

the principal’s office during periods of dysregulation was to give Student the space needed to get

Student under control and return to the classroom better able to engage with the general

curriculum. To hold that such short trips to a school administrator constitute a disciplinary

removal would create an unreasonable and unworkable standard for educators. Would a five-

minute time-out in the hallway also count as a half-day disciplinary removal? A fifteen minute?

Where is a logical delineation for schools to apply? Under a strict textual interpretation, possibly

any length of “removal” would qualify.

Certainly, the Court can imagine the unlikely circumstance in which LEAs abuse such

tools, sending students to an administrator for substantial portions of the school day with no

intent to return them to the classroom, or repeatedly sending students to the principal’s office in

lieu of suspension to avoid the requirements of the IDEA. That does not, however, appear to be

the case here. The Court agrees with the District’s categorization of the incidents on

September 6th and 17th. Neither were half-day disciplinary removals. Thus, Student’s tenth

removal was on January 28th, and the District’s responsibility to provide SDI began with

Student’s eleventh removal on March 3rd.

b. The ALJ did not fail to consider evidence that the District cured its

failure to provide SDI

After a student has been removed from the classroom for ten days, an LEA is required to

provide services during any subsequent disciplinary removal. OAR 581-015-2415. Failure to

provide those services is a material failure to implement a child’s IEP because it is substantially

more than a minor discrepancy between the services required and those provided. See Van Duyn

ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007).

It is undisputed that the District failed to provide services during Student’s suspensions

until April 23, 2025. The ALJ did, however, find that beginning on that date, the District began

to provide a total of 420 minutes of make-up SDI time spread across eight dates, with Student

refusing work on one of those dates. Final Order at 71; see also Ex. D102. This compensatory

education, the District argues, cured its failure to earlier provide services during Student’s

disciplinary removals, which the ALJ did not consider in her determination that the District

failed to provide a FAPE to Student.

District’s argument fails. The obligation to provide services during periods of removal

over ten days is contemporaneous. See OAR 581-015-2410(3) (requiring that, “[d]uring

removals,” LEAs “must provide services that are necessary to enable the child: (A) To continue

to participate in the general education curriculum, although in another setting; and (B) To

progress toward meeting the goals in the child’s IEP” (emphasis added)); 34 C.F.R.

§ 300.530(b)(2) (“After a child with a disability has been removed from his or her current

placement for 10 school days in the same school year, during any subsequent days of removal

the public agency must provide services” (emphasis added)). Thus, a failure to provide services

at the time of the removal is a failure to provide a FAPE, regardless of the efforts an LEA may

later make.

The provision of compensatory education is not meaningless; however, the District

misplaces it in the analysis. The make-up SDI does not cure their failure to provide a FAPE.

Rather, compensatory education is an equitable remedy within the discretion of the Court for

such failure. See, e.g., Hood River Cnty. Sch. Dist. v. Student, 2021 WL 2711986, at *19-21 (D.

Or. July 1, 2021). Thus, while the Court will consider the District’s efforts to provide belated

SDI when reviewing remedy, it does not find that such efforts cured an IDEA violation that all

parties agree occurred.

3. Whether the District failed to provide a FAPE after removing Student from

classroom for more than ten days

The District also argues that the ALJ erred in finding that the District denied Student

FAPE by imposing more than ten cumulative days of disciplinary removals. As previously

discussed, Oregon regulations explicitly allow LEAs to remove a child with a disability for more

than ten cumulative days in a single school year provided the LEAs meet certain procedural and

substantive requirements. See OAR 581-015-2415. Consequently, if the ALJ actually had found

that disciplinary removals of more than ten cumulative days were a per se denial of a FAPE, that

finding would have been clearly erroneous.

That, however, is not what the ALJ found. Rather, the ALJ determined that the District

had suspended Student for more than ten cumulative days and that the suspensions constituted a

pattern,18 constituting a change in placement, without meeting the regulatory requirements such a

change triggered. Specifically, as already discussed, she found that the District “failed to treat the

exclusions as a change in placement. [It] did not conduct a new FBA, update the BSP, or return

Student to Student’s placement. Additionally, [it] did not provide Student with required

educational services during the disciplinary removals.” Final Order at 116. These actions were

all required. See OAR 581-015-2415(4); OAR 581-015-2435. The District suggests that it had

met the relevant procedural requirements by convening MDRs. But as should be clear at this

point, it failed to follow through on other requirements triggered by a change in placement.

4. Whether the District failed to provide a FAPE when it changed Student’s

placement to a therapeutic day school

The District challenges the ALJ’s conclusion that it violated the IDEA and denied

Student a FAPE when, in March 2025, it changed student’s placement to a therapeutic day

school instead of considering additional supports and services to maintain Student in the LRE. In

support of this challenge, the District makes two primary arguments. First, that the ALJ’s

conclusion ran contrary to law and facts. Second, that the ALJ failed to apply the Rachel H.

factors.19 The District bears the burden of overcoming the presumption in favor of the general

18 Notably, in finding that the removals constituted a pattern, the ALJ relied on the

District’s own determinations from the MDRs it convened. In each one, the MDR team

determined that Student’s behavior was a pattern.

19 These factors arise from Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H.

ex rel. Holland, 14 F.3d 1398 (9th Cir. 1994).

education setting and justifying its proposed placement change. See Oberti by Oberti v. Bd. of

Educ., 801 F. Supp. 1392, 1401-02 (D.N.J. 1992), aff’d 995 F.2d 1204 (3d Cir. 1993) (citing

Davis v. Dist. of Columbia Bd. of Educ., 530 F. Supp. 1209, 1211-12 (D.D.C. 1982)).

a. Facts and the law supported the ALJ’s conclusion that the District failed

to provide a FAPE

Fundamentally, the ALJ determined that the therapeutic school placement was a denial of

a FAPE because it unnecessarily deprived Student of the benefit of the LRE. The record, she

found, “demonstrates that the District is unable, with the current staff and BSP/IEP in place, to

address Student’s unwanted behavior. However, the evidence does not show that Student cannot

be adequately served in Student’s neighborhood school.” Final Order at 123 (emphasis added).

The ALJ stated that this was because the District, despite plenty of evidence showing that the

existing BSP was failing, made very few changes. Notably, the District never engaged an

outside expert (despite Student’s mother’s continual requests to do so) or reevaluated its

responses to Student’s behaviors. Because the District never had an effective BSP in place after

December 2nd, it did not have the data adequate to assess whether Student could be adequately

educated in the LRE rather than be placed in an alternative school.

The District contends that the ALJ’s holding essentially is conclusion that the District had

not fully exhausted attempts to implement a successful BSP. The District first argues that this is

foreclosed by the Snapshot Rule, for the same reasons it previously argued. The Court has

rejected that argument and for the same reasons rejects it here.

The District next argues that the ALJ’s conclusions are based on a “faulty assumption”

that a valid BSP will avoid a placement change and the validity of the BSP hinges on whether it

is successful. The District notes that under the IDEA a BSP is a tool, and so is a change in

placement. The ALJ, however, did not foreclose a change in placement or that a BSP could fail

to address Student’s behavior. The ALJ determined that under the circumstances of this case, the

District did not do enough to try to create to a successful BSP before switching to the remedy of

placement change.

Finally, the District argues that the ALJ’s conclusion relies on the assumption that there

was a BSP that could have been successful if only the District had continued to try additional

supports and services. In the District’s view, the ALJ’s ruling required an unending effort to

throw more and more resources at a challenge they had already shown they were incapable of

resolving. They argue that a more appropriate course of action now is to escalate to a therapeutic

school. 20

This argument misunderstands the ALJ’s findings and conclusions. The ALJ explained

that at several key junctures, and on an ongoing basis after the December 2nd MDR, the District

20 In explaining its position, the District offers an analogy, comparing the process

implementing a BSP for a disabled child to that of treating a severe illness. In this analogy, if a

doctor proceeded to a more drastic course of treatment—like surgery—after a less drastic course

of action—like chemotherapy—failed, the failure would not necessarily be evidence that the less

invasive treatment was faulty, ill-conceived, or improperly administered. Similarly, the District

reasons, it is not automatically true that the District’s less restrictive approaches to supporting

Student (via multiple revisions of the FBA-informed BSP) were erroneously designed or

improperly implemented just because they ultimately failed. To the District, that failure should

be a signal that more restrictive approaches are called for rather than an opportunity to rethink

the less restrictive approach.

The analogy is well-taken, but incomplete. In this case, the record reflects failures both of

prescription and diagnosis. The District is correct that the doctor in their analogy could not be

faulted if she correctly diagnosed a patient with cancer and prudently pursued a minimally

invasive treatment plan before escalating to a risky surgery as a last resort. But she could be

faulted for continuing a treatment plan for cancer when subsequent data suggested that the

patient actually had heart disease. She also could be faulted for pursuing an aggressive form of

treatment when other, less invasive but possibly effective prescriptions remained available, if

only she would take the time to research them. Doctors regularly try different courses of

conservative treatment before moving to something more drastic. Similarly, here the ALJ is

requiring the District to reconsider their diagnosis (with a new FBA) and prescription (with a

new BSP) and gather better data, thus allowing for an informed placement decision.

had a sufficient and growing body of evidence at its disposal to understand that its fundamental

response to Student’s behavior was not working, and that a new approach was necessary. Indeed,

there was good reason to believe that the Student’s original BSP and the changes later

implemented actually exacerbated Student’s behavioral challenges. They did this by allowing

Student to avoid all or nearly all academic work and then using exclusionary disciplinary

practices that completely removed Student from the learning environment—essentially

rewarding Student for bad behavior by allowing Student to do what Student wanted: stop

working and go home. The ALJ concluded that after the District became aware of the

deficiencies in its BSP on December 2nd, it did not meaningfully make changes tied to Student’s

functions and thus the District needed to make one effort to develop a BSP that was “grounded in

adequate data regarding the antecedents and functions of Student’s unwanted behaviors, and

scientifically backed responses to that behavior.” Final Order at 123. No minor changes or

additions to Student’s roster of supports were ever going to meet Student’s needs if not

calibrated to address those functions. The ALJ thus was not erroneous in finding the BSP to be

inappropriate and the placement change an inappropriate retreat from the LRE and denial of a

FAPE.

Similarly, the ALJ made no assumptions about how successful a new FBA or

fundamentally revised BSP would be. Rather, she insisted that the District take the time to

develop an appropriate BSP and gather data based on that BSP before determining whether a

therapeutic school was appropriate. That was because the District could not accurately make

such a determination without quality data measuring the success of a BSP with supports and

services that addressed Student’s functions is not requiring the District explore “every

conceivable intervention or service.” Appellant’s Reply at 23 (ECF 12).

b. The Rachel H. factors support keeping Student in Student’s current

placement

The IDEA establishes that “[t]o the maximum extent appropriate,” a child is not to be

removed “from the regular educational environment” unless “the nature or severity of the

disability of a child is such that education in regular classes with the use of supplementary aids

and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A). States must adopt

policies in conformance with this provision. Id. § 1412(a)(5)(B).21 The Ninth Circuit has

determined that “this provision sets forth Congress’s preference for educating children with

disabilities in regular classrooms with their peers.” Rachel H., 14 F.3d at 1403. Thus, there is a

presumption for “mainstreaming,” but the District can overcome that presumption by proving

“that its proposed placement provided mainstreaming to ‘the maximum extent appropriate.’” Id.

The Ninth Circuit adopted a four-factor balancing test to show whether a student’s

placement is in compliance with the IDEA. Id. at 1404. To determine whether an LEA’s

placement of a disabled student meets the requirements of the IDEA, the Ninth Circuit requires

lower courts to balance: “(1) the educational benefits of placement full-time in a regular class;

(2) the non-academic benefits of such placement; (3) the effect [the student] had on the teacher

and children in the regular class; and (4) the costs of mainstreaming [the student].”

The District argues that, though the ALJ cited Rachel H., she ultimately did not apply the

factors to Student’s current placement. Student responds that the ALJ “engaged with each of [the

Rachel H.] considerations,” and characterizes the District’s argument merely as a complaint that

the ALJ weighed the factors differently than the District would have liked. Appellee’s Response

at 42 (ECF 10). Here, both parties are at least partially correct. Taking the Final Order in whole,

21 Oregon’s LRE regulations are set forth in OAR 581-015-2240 to 581-015-2255.

it is clear that the ALJ did, in fact, engage with all four of the factors. But Rachel H. requires

more than engagement. It requires balancing, which necessitates considering the factors together

and weighing them against each other. This, the ALJ did not do. Her analysis of the factors

amounts to one citation of the case. Beyond that, the relevant analysis is scattered throughout the

Final Order.

This shortcoming is not dispositive. Rather, it is this Court’s application of the factors

that matter. First, the record overwhelmingly supports the conclusion that Student is receiving

little to no educational benefit in Student’s current placement. Throughout the year, Student

spent less and less time in the general education classroom, and Student’s teachers expressed

concern that despite beginning the year cognitively on grade level, Student’s academic progress

was regressing. Importantly, though, this academic backsliding indisputably was the result of

Student’s behavioral issues, themselves the product of an ineffective BSP. It is entirely possible

that an effective BSP would allow Student to access the benefits of the general education

classroom. Thus, the Court finds that the first factor is neutral.

Second, Student is deriving nonacademic benefit from Student’s current placement. The

record shows that Student has developed important relationships with some of Student’s teachers

and paraeducators, especially Mr. Gilstad, despite Student’s behavioral issues. Additionally,

some testimony and exhibits indicated that Student has made some friends at Student’s current

school even though Student generally has trouble doing so. See, e.g., Tr. 242:1-3 (“With him, I

would give a few more choices, saying your friends are doing a lot of fun activities….”); Tr.

694:19-20 (“[Student] wants to be around with [Student’s] friends.”); Ex. D91 at 10 (“When

[Student] perceives that a friend has been treated unfairly, [Student] typically will want them to

pay a consequence for how they treated [Student’s] friend.”). Additionally, Student’s current

placement keeps Student close to home, and thus close to the quick support of family, and in the

same school complex with Student’s siblings. The second factor therefore weighs in favor of

keeping Student in place.

Third, Student’s effect on teachers and students in the regular classroom is clearly

deleterious. The record shows that Student engaged in acts of physical aggression against staff

and peers hundreds of times over the course of the school year, and that Student’s outbursts

routinely disrupted s classmates’ learning. The third factor weighs against keeping Student in the

general education environment.

Finally, both parties agree that resourcing was not the primary hurdle to keeping Student

in place. By the time an alternative placement was on the table, the District had already

committed to providing adult support to Student for the entire school day. To facilitate remaining

in the LRE, the District almost certainly would need to consult a BCBA, conduct a new FBA,

and draft a new BSP, but these one-time costs are limited. Thus, the final factor weighs in favor

of keeping Student in place.

Taken together, the Rachel H. factors do not resoundingly support or reject a particular

placement, though they tip in favor of keeping student in the general education classroom.

Because the burden is on the District to overcome the presumption associated with educating

Student in the LRE, the Rachel H. factors do not ultimately rescue the District’s decision to

change Student’s placement from the ALJ’s determination that such a change constitutes, at this

juncture, a denial of a FAPE.

5. The ALJ’s proposed remedy is appropriate

Under the IDEA, U.S. District Courts and ALJs have broad equitable powers to remedy

the failure of an LEA to provide a FAPE to its students. See, e.g., Sch. Comm. of Burlington v.

Dep’t of Educ., 471 U.S. 359, 369 (1985); Forest Grove Sch. Dist., 557 U.S. at 230; M.B. v.

Springfield Sch. Dist. No. 19, 2020 WL 5653986, at *15 (D. Or. Sept. 23, 2020). Here, the ALJ

ordered three categories of relief: (1) 200 hours of compensatory education, (2) a facilitated IEP,

and (3) a new, comprehensive FBA conducted by an independent behavioral specialist, followed

by a new BSP.

The District objects to the ALJ’s requirement that the District provide Student with 200

hours of compensatory education. The District argues that in crafting this remedy, the ALJ did

not consider the District’s procedural compliance but instead evaluated Student’s progress

compared to Student’s peers, thereby applying a standard more akin to those for § 504. See 29

U.S.C. § 794. Additionally, the District argues that the ALJ’s conclusions with respect to the

compensatory education remedy are internally inconsistent. Neither of these arguments are

availing.

First, in support of its argument that the ALJ improperly based her decision on a

comparison between Student and Student’s peers, the District cites to a single sentence in a 138

page order which reads: “Despite starting Student’s kindergarten year at the same level

academically as Student’s peers, Student made no meaningful progress.” Final Order at 112.

That sentence does not make clear that the ALJ relied on differences between Student’s

performance and that of Student’s peers to justify compensatory education. Had she intended to

do so, she would have included information describing not just where Student’s classmates

started the year, but where they finished, so as to show their relative progress. She does not do

that. Contextualizing the sentence further confirms that the ALJ relied primarily on Student’s

own academic performance. The reference to Student’s peers was merely a marker to explain

Student’s starting point. She then notes Student’s ending point, as showing no meaningful

progress. The rest of the section focuses entirely on Student’s academic regression over the

course of the period at issue, with no mention of Student’s classmates at all.22

Second, the primary internal inconsistency that the District identifies in the ALJ’s Final

Order is the fact that she found compensatory education necessary despite finding that all IEPs

adopted over the course of the year were “reasonably calculated to confer the Student a

meaningful bene[fi]t.” Appellant’s Brief at 51. The ALJ’s conclusion, however, is not so broad

with respect to the IEPs after December 2nd. After that date, the ALJ rejected the specific

deficiencies alleged by Parent in the complaint against the District, but in doing so repeatedly

emphasized that the District “should have taken steps to find new interventions for Student’s

unwanted behaviors” and similar text. See, e.g., Final Order at 102-03. The ALJ rejected only

that “the failure to provide these specific interventions resulted in a violation of the IDEA or a

denial of FAPE.” Id. (emphasis added).

Additionally, in her Order the ALJ does not base her provision of compensatory

education on the conclusion that Student’s IEPs were inappropriate as written. Rather, she roots

that decision in the narrower violation of an inadequate FBA and BSP. As Student correctly

argues in the Response, a substantively adequate IEP can still result in a denial of a FAPE if its

associated BSP is so deficient that it prevents access to instruction, and thus the IEP’s benefits.

22 Importantly, none of this discussion is in the Remedies section of the Order. In that

section, where the ALJ details her procedure for calculating hours of compensatory education, it

is clear that the factors material to her calculation have nothing to do with Student’s academic

performance relative to Student’s peers.

Additionally, as discussed previously in this Opinion and Order, the District’s decision to

proactively provide 420 minutes (7 hours) of make-up SDI may be a mitigating factor in

calculating remedy. However, given that the ALJ’s calculation of compensatory education

already substantially underestimates the educational benefit lost to Student through Student’s

removals, the Court declines to adjust downward the total of 200 hours.

The Court thus finds that the ALJ’s prescribed remedies are appropriate and justified by both fact

and law.

CONCLUSION

The Court reverses the ALJ’s determination that the District constructively changed

Student’s placement as of January 24, 2025, and finds instead that the change of placement

occurred on January 28, 2025. The Court affirms the remainder of the ALJ’s findings and

conclusions, as well as the ordered remedies.

IT IS SO ORDERED.

DATED this 12th day of August, 2026.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge