FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORANGE COUNTY DEPARTMENT OF
EDUCATION, No. 09-56192
Petitioner-Appellee, D.C. No.
v. No. 8:08-cv-00077-
JVS-MLG
CALIFORNIA DEPARTMENT OF
Central District of
EDUCATION,
California,
Respondent-Appellant,
Santa Ana
and
ORDER
A. S., a minor; LOS ANGELES CERTIFYING A
UNIFIED SCHOOL DISTRICT; CHARTER QUESTION TO
OAK UNIFIED SCHOOL DISTRICT; THE SUPREME
CALIFORNIA OFFICE OF COURT OF
ADMINISTRATIVE HEARINGS, CALIFORNIA
Respondents.
Filed May 18, 2011
Before: Raymond C. Fisher and Jay S. Bybee, Circuit
Judges, and Edward F. Shea, District Judge.*
ORDER
This case requires us to decide, as a matter of California
law, which California agency is responsible for funding a spe-
cial education student’s placement in an out-of-state residen-
tial treatment facility. We respectfully request that the
California Supreme Court exercise its discretion and decide
the certified question presented below.
*The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
6539
6540 ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION
I. Question Certified
Pursuant to Rule 8.548 of the California Rules of Court, we
request that the California Supreme Court answer the follow-
ing question:
Whether under California law the school district
responsible for the costs of a special education stu-
dent’s education while the student is placed at an
out-of-state residential treatment facility is the dis-
trict in which the student’s de facto parent, who is
authorized to make educational decisions on behalf
of the student, resides.
We understand that the Court may reformulate our question,
and we agree to accept and follow the Court’s decision.
See Cal. R. Ct. 8.548(b)(2), (f)(5). The California Supreme
Court’s decision on this question of California law could
determine the outcome of this appeal and no controlling Cali-
fornia precedent exists. See Cal. R. Ct. 8.548(a).
We certify this question because deciding it would require
us to answer novel and difficult questions of California law
about the relationships among multiple provisions of the Cali-
fornia Education Code and among numerous California gov-
ernmental entities. We acknowledge that the question raises
issues of particular interest to California and its courts, and
we note that three cases pending in our court may rely upon
the answer to this question. Unfortunately, the state adminis-
trative and federal judicial bodies that have addressed the cer-
tified question to date have reached conflicting and
inconsistent conclusions. Therefore, considerations of comity
and federalism favor resolution of the certified question by
California’s highest court.
II. Background
At all relevant times, A.S., a California minor, was eligible
for special education services under the Individuals with Dis-
ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION 6541
abilities Education Act (IDEA) as an emotionally disturbed
child. Joint Statement of Stipulated Facts ¶ 10. Since 1996,
A.S. has been a dependent of the Orange County Juvenile
Court, in accordance with California Welfare and Institutions
Code section 300 et seq. Id. ¶ 1. That court terminated the
parental rights of A.S.’s biological parents, including their
educational rights, in 1999. Id. ¶ 5.
Lori Hardy was A.S.’s foster parent from approximately
February 2000 to April 2004. Id. ¶ 6. Hardy is a resident of
the City of Orange and at all relevant times resided within the
Orange Unified School District. Id. ¶ 8. In April 2003, the
juvenile court appointed Hardy as A.S.’s de facto parent. Id.
¶ 7. See Cal. R. Ct. 5.502(10); Cal. R. Ct. 5.534(e). It is undis-
puted that at all relevant times Hardy was authorized to make
educational decisions on A.S.’s behalf. Joint Statement of
Stipulated Facts ¶ 9.
In 2006, A.S.’s individualized education program (IEP)
team, which had been convened by the Orange County
Department of Education (“Orange County” or “the County”),
referred A.S. to the Orange County Health Care Agency
(OCHCA) for a mental health assessment. Id. ¶ 38. OCHCA
recommended that A.S. be placed at Cinnamon Hills, a resi-
dential treatment facility in Utah. Id. ¶¶ 42, 47. The IEP team
agreed with OCHCA’s recommendation and the juvenile
court issued an order approving the placement. Id. ¶¶ 47, 50.
A.S. was placed at Cinnamon Hills beginning July 28, 2006.
Id. ¶ 53. Without conceding financial responsibility, Orange
County fronted the costs of A.S.’s educational services at Cin-
namon Hills from that date through April 19, 2009.
In October 2006, A.S. filed a request for a special educa-
tion due process hearing. After mediation resolved all other
issues, the only issue for the hearing was which public agency
was responsible for funding A.S.’s placement at Cinnamon
Hills. Because of A.S.’s various placements,1 Orange County,
1
Between September 2004 and his placement at Cinnamon Hills in July
2006, A.S. was placed in several facilities within California, including,
6542 ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION
Los Angeles Unified School District, Charter Oaks Unified
School District and the California Department of Education
(CDE) were all identified as agencies possibly responsible for
A.S.’s educational funding. In October 2007, the California
Office of Administrative Hearings (OAH) issued an adminis-
trative decision naming Orange County the responsible
agency. See Student v. Orange Cnty. Dep’t of Educ., No.
2006100050, at 10 (Cal. Office of Admin. Hearings Oct. 31,
2007).2
Orange County appealed that decision to U.S. District
Court for the Central District of California, arguing that CDE
is responsible for A.S.’s out-of-state education. The County
argued that California law fails to make any public agency
responsible for providing special education programs to chil-
dren like A.S., who have no parents and are placed in residen-
tial treatment centers outside California. The County therefore
argued that CDE should be held responsible by default.
among others, the San Gabriel Children’s Center, a licensed children’s
institution, where A.S. was provided special educational services by the
Charter Oaks Unified School District, and the Orangewood Children’s
Home, a temporary shelter care facility and licensed group home, where
A.S. received special education services at William Lyon School by the
Orange County Department of Education. Joint Statement of Stipulated
Facts ¶¶ 11-32. During the weeks just prior to A.S.’s placement at Cinna-
mon Hills, A.S. was placed in Gateways Hospital in Los Angeles on a
medical, psychiatric stay. Id. ¶¶ 45, 54. The hospital is located within the
Los Angeles Unified School District. Id. ¶ 45.
2
At the time, CDE argued that Orange County was the agency responsi-
ble for A.S.’s education. CDE has now abandoned that position, arguing
that the Orange Unified School District, which is not a party to this action,
is the responsible agency. CDE is not the only entity that has offered
inconsistent answers to the state-law questions presented in this appeal.
The OAH has also done so. See Brief of Respondent-Appellant 7. That
these questions have confounded California’s leading authorities on Cali-
fornia education law reinforces our conclusion that a California court,
rather than this court, should resolve these questions.
ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION 6543
CDE moved to dismiss the action under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. The district court denied
that motion in a published decision, Orange Cnty. Dep’t of
Educ. v. A.S., 567 F. Supp. 2d 1165 (C.D. Cal. 2008), and
then granted Orange County’s motion for summary judgment.
The court agreed with the County that California law failed to
make any public agency responsible for A.S.’s education and
therefore deemed CDE responsible by default. CDE timely
appealed to this court.
III. Explanation of Certification
The resolution of this appeal turns on two issues of Califor-
nia law for which there is no controlling authority.
A. Whether § 56028 Supplies a Definition of Parent
for § 48200
The first issue relates to which agency is responsible for
funding A.S.’s out-of-state placement. The parties agree that
California Education Code section 48200 establishes the gen-
eral rule that, under California law, the school district respon-
sible for the education of a child between the ages of 6 and
18 is the district in which the child’s “parent or legal guard-
ian” resides. See Katz v. Los Gatos-Saratoga Joint Union
High Sch. Dist., 11 Cal. Rptr. 3d 546, 553 (Ct. App. 2004)
(“Section 48200 embodies the general rule that parental resi-
dence dictates a pupil’s proper school district.”). But the par-
ties disagree about how California law defined “parent” for
purposes of section 48200 while Orange County was fronting
the costs for A.S.’s placement in Cinnamon Hills.
In 2006, when Orange County began fronting those costs,
no provision of the California Education Code specified that
it provided the definition of “parent” for section 48200, either
for students as a whole or for special education students in
particular. In January 2009, the California legislature
amended section 56028 of the California Education Code to
6544 ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION
provide that, “[i]f a judicial decree or order identifies a spe-
cific person or persons under [Education Code section
56028(a)(1)-(4) of Part 30 (‘Special Education Programs’)] to
act as the ‘parent’ of a child or to make educational decisions
on behalf of a child, then that person or persons shall be deter-
mined to be the ‘parent’ for purposes of . . . Article 1 (com-
mencing with Section 48200) of Chapter 2 of Part 27.” Cal.
Educ. Code. § 56028(b)(2). Thus, beginning in 2009, the defi-
nition of parent in section 56028 applies to section 48200, at
least under some circumstances. For purposes of this appeal,
the parties appear to agree that, as of January 2009, the
agency responsible for funding A.S.’s out-of-state placement
was the school district in which A.S.’s parent resided, see Cal.
Educ. Code § 48200, as “parent” was defined under section
56028.3 But the parties dispute whether section 56028 sup-
plied a definition of parent for section 48200 before January
2009. If section 56028 does not specify the governmental
entity responsible for a special education student’s education,
we must identify, under California law, the proper alternative
method for determining the responsible entity.4
We have found no controlling authority addressing this
issue, and what authority exists is in conflict. In Orange
County Department of Education v. Student, Nos.
2008120021 & 2009020130 (Cal. Office of Admin. Hearings
May 22, 2009), the OAH ruled that section 56028 does pro-
vide the definition of parent for section 48200 with respect to
students enrolled in special education programs. See id. ¶ 14
(“Section 56028, which is found in the section of the code
regarding special education, sets forth definitions of ‘parent’
3
As discussed later, however, the parties disagree about whether A.S.
has a “parent” under section 56028, either before or after January 2009.
4
Another provision in Part 30 may be relevant to the analysis. California
Education Code section 56041(a) specifies that “the district of residence
responsible for providing special education and related services to pupils
between the ages of 18 and 22 years, inclusive, shall be assigned [to] . . .
the last district of residence in effect prior to the pupil’s attaining the age
of majority.”
ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION 6545
that must be read in conjunction with section 48200 when
there is a question regarding which agency is responsible for
providing special education to a particular child.”); see also
id. ¶¶ 22-23. The OAH has taken this position in a number of
related proceedings, and CDE urges its adoption here.5
On the other hand, a federal district court in California has
issued multiple decisions that have rejected, at least in part,
the proposition that section 56028 supplies the definition of
parent for purposes of section 48200. In Newport-Mesa Uni-
fied School District v. R.R., No. 09-cv-980 (C.D. Cal. May 3,
2010), the district court concluded that the current (2009) ver-
sion of section 56028 applies to section 48200, but found no
basis to conclude that section 56028’s definition of parent
applied to section 48200 before 2009. The court noted that
“CDE does not directly explain in its briefing the basis for its
position that section 56028, prior to the 2009 amendment,
supplied the definition of ‘parent’ for section 48200,” adding
that the OAH’s “decisions also fail to explain why section
56028’s unique definition is applicable to section 48200.” Id.
at 12-13. The court found the OAH’s decisions unconvincing:
The Court is persuaded for two reasons that, before
the 2009 amendment, section 56028’s definition of
“parent” was not applicable to determinations of res-
5
Several other OAH cases agree that section 56028 supplies the defini-
tion of parent for section 48200. See, e.g., Orange Cnty. Dep’t of Educ.
v. Student, Nos. 2009010078 & 2009010529, at 6 (Cal. Office of Admin.
Hearings June 2, 2009) (“Section 56028, which is found in the section of
the code regarding special education, sets forth definitions of ‘parent’ that
must be read in conjunction with section 48200 when there is a question
regarding which agency is responsible for providing special education to
a particular child.”); see also Student v. L.A. Unified Sch. Dist., No.
2009100740, at 11 (Cal. Office of Admin. Hearings Mar. 3, 2010); Student
v. L.A. Unified Sch. Dist., No. 2009100939, at 4 (Cal. Office of Admin.
Hearings Jan. 29, 2010); Student v. Orange Cnty. Dep’t of Educ., Nos.
2009090943 & 2009100565, at 12 (Cal. Office of Admin. Hearings Nov.
30, 2009); Parent v. Cal. Dep’t of Mental Health, No. 2009050920, at 11-
12 (Cal. Office of Admin. Hearings Oct. 26, 2009).
6546 ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION
idency under section 48200. First, section 56028 is
within the definition section of the part of the Cali-
fornia Education Code dealing specifically with spe-
cial education programs. See Cal. Educ. Code
§§ 56020-56035. To apply a special education provi-
sion to the determination of residency is inconsistent
with the instruction in Union School District [v.
Smith, 15 F.3d 1519, 1525 (9th Cir. 1994),] to use
ordinary means of determining residency for special
education students. Moreover, it seems illogical to
apply a definition promulgated under a specific and
distinct part of the California Education Code to
other unrelated sections. Second, finding that section
56028 already applied to section 48200 prior to the
2009 amendment conflicts with the Legislative
Counsel’s Digest of the amendment. The 2009
amendment to section 56028 explicitly expanded the
applicability of section 56028’s definition of “par-
ent” beyond the special education provisions to vari-
ous other statutes, including section 48200. Compare
Cal. Educ. Code § 56028(b)(2) (2009) with Cal.
Educ. Code § 56028(b)(2) (2007). The Legislative
Counsel’s Digest explained that the amendment to
subsection (b)(2) would “broaden the purposes for
which the definition of ‘parent’ extends if a judicial
decree or order identifies the person who is defined
as a parent.” 2008 Cal. Legis. Serv. Ch. 223 (A.B.
2057) (West). This indicates that the change to sub-
section (b)(2) was not a mere clarification of the def-
inition’s pre-existing applicability, but rather a
broadening of its applicability beyond the special
education provisions of the California Education
Code.
Id. at 13-14. The district court reached a similar conclusion in
B.P. v. Orange County Department of Education, No. 09-cv-
ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION 6547
971, at 12-13 (C.D. Cal. May 3, 2010). Appeals from those
decisions are currently pending in this court.6
B. Whether Ms. Hardy Is A.S.’s “Parent” Under
§ 56028
The second issue is whether Lori Hardy, who is A.S.’s “de
facto parent” under Rule 5.534(e) of the California Rules of
Court and is authorized to make educational decisions on
A.S.’s behalf, satisfies section 56028’s definition of “parent”
from July 28, 2006, when A.S.’s placement at the out-of-state
residential treatment facility began, through April 19, 2009.
During that time, three different versions of section 56028
have been in effect. The 2005 version of section 56028 was
effective from October 7, 2005, to October 9, 2007. The 2007
version was in effect between October 10, 2007, and the end
of 2008. The 2009 — and current — version has been in
effect since January 1, 2009.
Because the parties do not dispute that, for purposes of this
case, section 56028 supplies the definition of parent for sec-
tion 48200 as of January 1, 2009, we know we must decide
whether Hardy qualifies as a parent for A.S. under section
56028 (2009). But only if section 56028 defines “parent” for
section 48200 before January 2009 need we decide if Lori
Hardy qualifies as a “parent” under the 2005 and 2007 ver-
sions of section 56028.7
Under the 2005 version of section 56028, a parent includes
6
The appeal from the Newport-Mesa decision is docketed as Ninth Cir-
cuit No. 10-56057. The appeal from the B.P. decision is docketed as Ninth
Circuit No. 10-56237.
7
If section 56028 does not apply to section 48200, then we must deter-
mine whether Hardy, a de facto parent with educational decisionmaking
authority, qualifies as a “parent” under 48200, however section 48200
defined that term.
6548 ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION
(1) A person having legal custody of a child.
(2) Any adult pupil for whom no guardian or conser-
vator has been appointed.
(3) A person acting in the place of a natural or adop-
tive parent, including a grandparent, stepparent, or
other relative with whom the child lives. “Parent”
also includes a parent surrogate.
(4) A foster parent if the authority of a parent to
make educational decisions on the child’s behalf has
been specifically limited by court order in accor-
dance with subsection (b) of Section 300.20 of Title
34 of the Code of Federal Regulations.
Cal. Educ. Code § 56028(a) (2005). Under the 2007 version
of the statute, parent means any of the following:
(1) A biological or adoptive parent of a child.
(2) A foster parent if the authority of the biological
or adoptive parents to make educational decisions on
the child’s behalf specifically has been limited by
court order in accordance with Section 300.30(b)(1)
or (2) of Title 34 of the Code of Federal Regulations.
(3) A guardian generally authorized to act as the
child’s parent, or authorized to make educational
decisions for the child.
(4) An individual acting in the place of a biological
or adoptive parent, including a grandparent, steppar-
ent, or other relative, with whom the child lives, or
an individual who is legally responsible for the
child’s welfare.
(5) A surrogate parent who has been appointed pur-
suant to Section 7579.5 or 7579.6 of the Government
ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION 6549
Code, and in accordance with Section 300.519 of
Title 34 of the Code of Federal Regulations and Sec-
tion 1439(a)(5) of Title 20 of the United States Code.
Cal. Educ. Code § 56028(a) (2007). Under the 2009 — and
current — version of section 56028, parent means:
(1) A biological or adoptive parent of a child.
(2) A foster parent if the authority of the biological
or adoptive parents to make educational decisions on
the child’s behalf specifically has been limited by
court order in accordance with Section 300.30(b)(1)
or (2) of Title 34 of the Code of Federal Regulations.
(3) A guardian generally authorized to act as the
child’s parent, or authorized to make educational
decisions for the child, including a responsible adult
appointed for the child in accordance with Sections
361 and 726 of the Welfare and Institutions Code.
(4) An individual acting in the place of a biological
or adoptive parent, including a grandparent, steppar-
ent, or other relative, with whom the child lives, or
an individual who is legally responsible for the
child’s welfare.
(5) A surrogate parent who has been appointed pur-
suant to Section 7579.5 or 7579.6 of the Government
Code, and in accordance with Section 300.519 of
Title 34 of the Code of Federal Regulations and Sec-
tion 1439(a)(5) of Title 20 of the United States Code.
Cal. Educ. Code § 56028(a) (2009).
CDE contends that Hardy falls within the definition of par-
ent under all three versions of section 56028, whereas Orange
County contends that Hardy falls outside the definition of par-
6550 ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION
ent in all three versions. We note that Hardy’s role as “de
facto parent” with education decisionmaking authority does
not fall precisely within the language of any of the three ver-
sions of this statute. But we also note that the U.S. Depart-
ment of Education clarified similar language in federal
regulations by explaining that “[w]hat is important is the legal
authority granted to individuals appointed by a court, and not
the term used to identify them.” See Assistance to States for
the Education of Children With Disabilities and Preschool
Grants for Children With Disabilities, 71 Fed. Reg. 46,540,
46,566 (Aug. 14, 2006) (describing similar language in 34
C.F.R. § 300.30(a)(3)).8
Unfortunately, the relevant California legislative history
does not clarify this issue. Compare Cal. Assembly Comm. on
Educ. Analysis of A.B. 2057 (Apr. 1, 2008) (saying that the
addition of “responsible adult” in the 2009 version of the stat-
ute did not change but merely clarified the term “guardian” in
the 2007 version), with 2008 Cal. Legis. Serv. ch. 223 (West)
(A.B. 2057) (Legislative Counsel’s Digest) (suggesting that
the inclusion of “responsible adult” under the 2009 version
expanded the existing definition of parent).
IV. Conclusion
The issues presented by the certified question — the extent
to which section 56028 supplies a definition of parent under
section 48200 and the scope of the definition of parent under
the 2005, 2007 and current versions of section 56028 — are
dispositive of the issues in this case. If section 56028 applies
to section 48200, and if Hardy falls within the definition of
8
We refer to the U.S. Department of Education’s discussion of the term
guardian in 34 C.F.R. § 300.30(a)(3) because the 2007 and 2009 versions
of section 56028 are based on § 300.30, the federal regulation defining
“parent” for purposes of the IDEA. See 2007 Cal. Legis. Serv. ch. 454
(West) (A.B. 1663) (“This bill would make various revisions generally
conforming state law to federal requirements . . . .”).
ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION 6551
parent under any of the relevant versions of section 56028,
then the Orange Unified School District is the California gov-
ernmental entity responsible for funding some or all of A.S.’s
education at the out-of-state residential treatment facility. If
section 56028 does not apply to section 48200, or if Hardy
does not fall within the definition of parent under any of the
relevant versions of section 56028, then A.S. may not have a
parent for purposes of determining the agency responsible for
funding his education, and CDE itself may be financially
responsible.
We are aware of no controlling precedent addressing the
certified question or the two issues subsumed within it. Rather
than decide these questions of California law ourselves, we
certify them so that the California Supreme Court may pro-
vide an authoritative answer for these California governmen-
tal entities on this important issue of California law.
V. Administrative Information
If our request for decision is granted, we designate the
Orange County Department of Education as the petitioner.
See Cal. R. Ct. 8.548(b)(1).
The names and addresses of counsel for Orange County
Department of Education are:
Karen Lynn Van Dijk
Jennifer C. Brown
Best Best & Krieger, LLP
Suite 1500
5 Park Plaza
Irvine, CA 92614
The names and addresses of counsel for California Depart-
ment of Education are:
6552 ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION
Marsha A. Bedwell, General Counsel
Amy Bisson Holloway, Assistant General Counsel
Edmundo Aguilar, Deputy General Counsel
California Department of Education
Suite 5319
1430 N Street
Sacramento, CA 95814
The name and address of counsel for A.S., a minor, are:
Kathleen Loyer
Law Offices of Kathleen M. Loyer, Inc.
940 Calle Amanecer
Suite L
San Clemente, CA 92673
The name and address of counsel for Los Angeles Unified
School District are:
Sue Ann Evans
Miller Brown & Dannis
Suite 1750
301 E. Ocean Blvd.
Long Beach, CA 90802
The name and address of counsel for Charter Oak Unified
School District are:
Joyce E. Paul
Parker Covert LLP
Suite 204 - East Bui
17862 17th Street
Tustin, CA 92780
The California Office of Administrative Hearings is an
unrepresented party. This court has no address on file.
As required by California Rule of Court 8.548(c) and (d),
the Clerk of this Court shall submit copies of all relevant
ORANGE COUNTY v. CALIF. DEP’T OF EDUCATION 6553
briefs and an original and 10 copies of this Order to the
Supreme Court of California with a certificate of service on
the parties.
The case is withdrawn from submission and further pro-
ceedings in this court are stayed pending final action by the
Supreme Court of California. The parties shall notify the
Clerk of this Court within seven days after the California
Supreme Court accepts or rejects certification, and again
within seven days if the California Supreme Court renders an
opinion. The panel retains jurisdiction over further proceed-
ings.
IT IS SO ORDERED.