D.C. No. 2:09-cv-09289-VBF-CT
ORDER CERTIFYING QUESTION TO CALIFORNIA SUPREME COURT
Before: Betty B. Fletcher, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.
This case requires us to decide, as a matter of California law, whether the responsible agency for providing special education services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., to an eligible child incarcerated in a county jail is the school district where the child's parents reside. We respectfully request that the California Supreme Court decide the certified question that follows.
Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following question:
Does California Education Code § 56041 - which provides generally that for qualifying children ages eighteen to twenty-two, the school district where the child's parent resides is responsible for providing special education services - apply to children who are incarcerated in county jails?
The California Supreme Court's decision on this question of California law would determine the outcome of this appeal and no controlling precedent exists. See Cal. R. Ct. 8.548(a). We agree to accept and follow the Court's decision. See Cal. R. Ct. 8.548(b)(2). We certify this question because deciding it would require us to answer a novel question of California law that could impose substantial financial obligations on school districts throughout the state. Moreover, because suits concerning special services required by the IDEA are subject to federal jurisdiction, the California courts are unlikely to have the opportunity to address this question of substantial importance to local school districts unless the California Supreme Court grants a request for certification.
Appellee Michael Garcia is twenty-one years old and, until recently, was incarcerated in the Los Angeles County Jail awaiting trial.*fn1 At all relevant times, Garcia's mother has resided within the boundaries of the Los Angeles Unified School District (LAUSD). Garcia has a learning disability and a speech and language impairment, and he qualifies for special education services under the IDEA and corresponding state law. Garcia first began receiving special education services in the second grade and continued receiving them prior to his incarceration and while he was incarcerated in a juvenile facility. After Garcia turned eighteen on June 1, 2008, he was transferred to the adult jail facility and stopped receiving special education services.
In December 2008, Garcia filed a due process hearing complaint with California's Office of Administrative Hearings (OAH), alleging that he was being denied the free appropriate public education (FAPE) that he is entitled to under the IDEA. The complaint named a variety of education and corrections agencies, including the California Department of Education, but not LAUSD. After noting that no "statute or regulation specifically allocat[es] responsibility for the special education of eligible students 18 to 22 years of age who are incarcerated in an adult correctional institution," OAH concluded that the question was governed by California Education Code § 56041, which provides in full that:
Except for those pupils meeting residency requirements for school attendance specified in subdivision
(a) of Section 48204, and notwithstanding any other provision of law, if it is determined by the individualized education program team that special education services are required beyond the pupil's 18th birthday, the district of residence responsible for providing special education and related services to pupils between the ages of 18 to 22 years, inclusive, shall be assigned, as follows:
(a) For nonconserved pupils, the last district of residence in effect prior to the pupil's attaining the age of majority shall become and remain as the responsible local educational agency, as long as and until the parent or parents relocate to a new district of residence. At that time, the new ...