FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOS ANGELES UNIFIED SCHOOL No. 10-55879
DISTRICT, D.C. No.
Plaintiff-Appellant, 2:09-cv-09289-
v. VBF-CT
MICHAEL GARCIA, Central District of
Defendant-Appellee. California,
Los Angeles
ORDER
CERTIFYING
QUESTION TO
CALIFORNIA
SUPREME COURT
Filed January 20, 2012
Before: Betty B. Fletcher, Barry G. Silverman, and
Kim McLane Wardlaw, Circuit Judges.
ORDER
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 eligi-
ble 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.
513
514 LOS ANGELES USD v. GARCIA
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:
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.
II. Background
Appellee Michael Garcia is twenty-one years old and, until
recently, was incarcerated in the Los Angeles County Jail
awaiting trial.1 At all relevant times, Garcia’s mother has
1
At oral argument, counsel for the parties informed us that Garcia was
recently transferred to state prison. Although neither party argues that the
case is moot, we have an obligation to consider mootness sua sponte.
NASD Dispute Resolution, Inc. v. Judicial Council, 488 F.3d 1065, 1068
(9th Cir. 2007). Now that Garcia is in prison, we cannot provide him with
LOS ANGELES USD v. GARCIA 515
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 spe-
cial education services under the IDEA and corresponding
state law. Garcia first began receiving special education ser-
vices in the second grade and continued receiving them prior
to his incarceration and while he was incarcerated in a juve-
nile 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 com-
plaint 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 cor-
rections 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 con-
cluded that the question was governed by California Educa-
tion Code § 56041, which provides in full that:
effective relief by deciding that LAUSD is responsible for providing spe-
cial education services to him while he is in county jail. See United States
v. Tanoue, 94 F.3d 1342, 1344 (9th Cir. 1996).
We have previously held, however, that the mootness exception for
issues that are capable of repetition yet evading review applies to ongoing
policies affecting pretrial detainees, because pretrial detention usually will
be too brief for the challenged policy to be reviewed before becoming
moot. See United States v. Howard, 480 F.3d 1005, 1009-11 (9th Cir.
2007). The considerations discussed in Howard apply with equal force
here, because although Garcia’s “particular situation . . . may have become
moot,” the failure to provide special education services to eligible inmates
in county jails is ongoing, and eligible inmates will usually not be incar-
cerated in the jail long enough to bring a legal challenge. See id. at 1010.
516 LOS ANGELES USD v. GARCIA
Except for those pupils meeting residency require-
ments for school attendance specified in subdivision
(a) of Section 48204, and notwithstanding any other
provision of law, if it is determined by the individu-
alized education program team that special education
services are required beyond the pupil’s 18th birth-
day, the district of residence responsible for provid-
ing 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 resi-
dence in effect prior to the pupil’s attaining the age
of majority shall become and remain as the responsi-
ble local educational agency, as long as and until the
parent or parents relocate to a new district of resi-
dence. At that time, the new district of residence
shall become the responsible local educational
agency.
(b) For conserved pupils, the district of residence of
the conservator shall attach and remain the responsi-
ble local educational agency, as long as and until the
conservator relocates or a new one is appointed. At
that time, the new district of residence shall attach
and become the responsible local educational
agency.
Applying this statute, OAH determined that LAUSD was
responsible for providing a FAPE to Garcia because LAUSD
is the “last district of residence in effect prior to the pupil’s
attaining the age of majority.”2 Because LAUSD was not
named in Garcia’s complaint, however, OAH dismissed the
complaint “without prejudice to the filing of a complaint nam-
ing proper parties.”
2
Garcia is not subject to a conservatorship and does not meet the excep-
tions specified in California Education Code § 48204(a).
LOS ANGELES USD v. GARCIA 517
Garcia filed an amended complaint naming only LAUSD as
a respondent. In November 2009 OAH issued a decision again
concluding that “[t]he Los Angeles Unified School District is
the entity legally responsible for providing [Garcia] with a
free appropriate public education while he is incarcerated in
the Los Angeles County Jail” and ordered LAUSD to begin
providing Garcia with special education services.3 The U.S.
District Court for the Central District of California issued an
order affirming the OAH decision on May 4, 2010. LAUSD
timely appealed to this court.
III. Explanation of Certification
The resolution of this appeal turns on whether California
Education Code § 56041 applies to students who are incarcer-
ated in adult county jails, an issue of California law for which
there is no controlling authority.
Under the IDEA and corresponding California law, chil-
dren who are eligible for special education services are enti-
tled to continue receiving those services until they turn
twenty-two or receive a high school diploma. 20 U.S.C.
§ 1412(a)(1)(A); Cal. Educ. Code § 56026. If a child between
ages eighteen and twenty-two received special education ser-
vices in his last educational placement prior to being incarcer-
ated in an adult correctional facility, that child remains
entitled to services while he is incarcerated. 20 U.S.C.
§ 1412(a)(1)(B)(ii); 34 C.F.R. § 300.102(a)(2)(ii).
Each state is responsible for ensuring compliance with the
IDEA and must specify which state or local educational
agency (SEA or LEA) is responsible for providing special
education services to certain students, including students who
are incarcerated. See 20 U.S.C. § 1412(a) (states are generally
responsible for ensuring IDEA’s requirements are met); id.
3
Pursuant to this order, LAUSD did provide Garcia with special educa-
tion services while it pursued this appeal.
518 LOS ANGELES USD v. GARCIA
§ 1412(a)(11)(C) (responsibility for meeting requirements for
incarcerated children may be assigned to any public agency in
the state). Thus, questions of which agency is responsible for
providing a student with a FAPE are determined under state
law. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1525-27
(9th Cir. 1994).
Apart from a state’s supervisory responsibilities, a state can
be required to provide direct services to a child if the relevant
LEA is unable or unwilling to provide those services. 20
U.S.C. § 1413(g). The state is also responsible for providing
services when there is no state law or regulation that delegates
its responsibility. Orange Cnty. Dep’t of Educ. v. California
Dep’t of Educ., No. 09-56192, slip op. 21323 (9th Cir. Dec.
28, 2011).
In most circumstances, however, a state will assign respon-
sibility for providing special education services to an LEA,
such as a school district. In California, the responsible LEA
is usually the school district where the child would otherwise
be assigned. See Orange Cnty. Dep’t of Educ. v. A.S., 567 F.
Supp. 2d 1165, 1167 (C.D. Cal. 2008). California’s compul-
sory school attendance law requires that children between the
ages of six and eighteen attend school in “the school district
in which the residency of either the parent or legal guardian
is located.” Cal. Educ. Code § 48200. This provision,
§ 48200, “embodies the general rule that parental residence
dictates a pupil’s proper school district.” Katz v. Los Gatos-
Saratoga Joint Union High Sch. Dist., 11 Cal. Rptr. 3d 546,
553 (Cal. App. 2004). Section 48204 provides exceptions to
that rule, mostly for students who do not reside with their par-
ents. Thus, students ages six to eighteen usually receive spe-
cial education services from the school district in which their
parents reside.
According to Garcia, § 56041 creates an analogous system
for special education students between the ages of eighteen
and twenty-two. Garcia argues that the plain language of
LOS ANGELES USD v. GARCIA 519
§ 56041 indicates that all eligible students between the ages
of eighteen and twenty-two will receive special education ser-
vices from the school district where their parents reside,
unless they are subject to a conservatorship or fall under one
of the exceptions outlined in § 48204. Most importantly, Gar-
cia claims that because it does not specify otherwise, § 56041
applies to students like himself who are incarcerated in adult
county jails.
LAUSD responds that the legislative history of § 56041
and the existing statutory framework regarding education ser-
vices in correctional facilities demonstrate that § 56041 does
not extend to students like Garcia. LAUSD argues that Cali-
fornia law simply does not delegate responsibility for provid-
ing special education services to eligible students in adult
county jails, and absent such delegation, that responsibility
defaults to the state. See Orange Cnty. Dep’t of Educ. v. Cali-
fornia Dep’t of Educ., No. 09-56192, slip op. 21341-42.
OAH and the district court agreed with Garcia. OAH wrote
that “absent a specific statutory or regulatory section assign-
ing responsibility to a particular agency for an incarcerated
adult special education student, the general residency rules for
determining the responsible agency” apply. The district court
affirmed, explaining that LAUSD was the responsible agency
“[u]nder the plain language” of § 56041 and noting that “[n]o
party contests that Garcia is between the ages of 18 and 22
years and that Garcia’s mother has at all relevant times
resided within” LAUSD.
We have found no controlling authority addressing this
issue — in fact, there is no authority whatsoever addressing
the application of § 56041 to incarcerated students. The
authorities that do exist regarding § 56041 generally are in
conflict or provide little guidance.
LAUSD relies heavily on legislative history, but it is by no
means dispositive. Section 56041 was enacted (at least in
520 LOS ANGELES USD v. GARCIA
part) to correct a problem that impacted LEAs containing pri-
vate residential schools. Many children residing at those
schools had been placed there by other LEAs. If the LEA
responsible for funding a child’s special education depended
on where the child resided once the child turned eighteen,
LEAs containing private residential schools would suddenly
become financially responsible for all of the adult students
attending those schools. Section 56041 corrected this by
requiring the LEA where the student’s parents reside (which
presumably is the LEA that placed the student in the residen-
tial school) to remain responsible for funding the student’s
education. See Sierra Sands Unified Sch. Dist. v. California
State Bd. of Educ., No. 248848 (Kern Cnty. Super. Ct. June
19, 2003) (discussing legislative history).
Although this history indicates that § 56041 may have been
enacted to solve a narrow problem, there is little evidence to
support LAUSD’s argument that the reach of § 56041 is lim-
ited to the situation described above. LAUSD points to a doc-
ument from the Senate Policy Committee noting that § 56041
“addresses a problem for local educational agencies which are
impacted by nonpublic, nonsectarian schools.” But that docu-
ment goes on to explain that § 56041 addresses that problem
by “add[ing] a new code section clarifying the district of resi-
dence responsible for providing special education and related
services to pupils between the ages of 18 to 22 years.” This
language seems to indicate that § 56041 clarifies the responsi-
ble LEA for all students ages eighteen to twenty-two. More-
over, as the district court pointed out, it may be that Garcia’s
argument is more aligned with this legislative history. Noting
that the concern behind § 56041, “broadly speaking, is a con-
cern regarding overwhelming [LEAs] with responsibility
because of the fortuity of having a certain type of school
within their borders,” the district court reasoned that applying
§ 56041 to incarcerated students “may serve this purpose . . .
because it provides that the LEA in which a jail resides is not
automatically responsible for the special education of all stu-
dents located therein.”
LOS ANGELES USD v. GARCIA 521
Previous administrative decisions interpreting § 56041 also
provide inconsistent guidance. A 2003 decision by the Special
Education Hearing Office (the predecessor to OAH) seems to
favor LAUSD’s argument. See Student v. Berkeley Unified
Sch. Dist. & Albany Unified Sch. Dist., No. 1989 (Cal. Special
Educ. Hearing Office Nov. 6, 2003). In Berkeley, a twenty-
year-old student with autism moved from his parents’ home
in Albany to his own home in Berkeley and sought special
education services from the Berkeley school district. Berkeley
argued that, under the plain language of § 56041, the Albany
school district remained responsible for the student’s educa-
tion because his parents continued to reside there. The hearing
officer disagreed and found that Berkeley was responsible
based on three factors: the legislative history of § 56041; the
fact that the student had moved to a new district voluntarily,
rather than as the result of an educational placement; and the
fact that the applicable definition of “parent” at that time
included “[a]ny adult pupil for whom no guardian or conser-
vator has been appointed” (meaning that the student could be
considered his own “parent” under the statute). The hearing
officer construed § 56041 as an “exception” that applies only
when a student resides in a different district from his parents
as the result of an educational placement.
Garcia responds that Berkeley is distinguishable because
the definition of “parent” for the purposes of § 56041 no lon-
ger includes “[a]ny adult pupil for whom no guardian or con-
servator has been appointed.” Compare Cal. Educ. Code
§ 56028 (2007) and Cal. Educ. Code § 56028 (2005). But in
any event, Berkeley is not binding precedent, and other, more
recent administrative decisions construing § 56041 have
reached different results. See Cal. Code Regs. tit. 5, § 3085
(“[O]rders and decisions rendered in special education due
process hearing proceedings may be cited as persuasive but
not binding authority by parties and hearing officers in subse-
quent proceedings.”). One 2009 decision describes § 56041 as
“unambiguous” and as “a catch-all provision that identifie[s]
the responsible local education agency for students who
522 LOS ANGELES USD v. GARCIA
require[ ] special education beyond the age of eighteen.” In
the Consolidated Matters of Orange Cnty. Dep’t of Educ. v.
Student and Student v. Orange Cnty. Dep’t of Educ. & Cali-
fornia Dep’t of Educ., Nos. 2008120021, 2009020130 (Cal.
Office of Admin. Hearings May 22, 2009). Another 2009
decision notes that § 56041 “distinguish[es] only between
conserved and nonconserved pupils.” Parent v. California
Dep’t of Mental Health, No. 2009050920 (Cal. Office of
Admin. Hearings Oct. 26, 2009); see also In the Consolidated
Matters of Student v. Orange Cnty. Dep’t of Educ., Irvine
Unified Sch. Dist. & California Dep’t of Educ. and Orange
Cnty. Dep’t of Educ. v. Student, Nos. 2009090943,
2009100565 (Cal. Office of Admin. Hearings Nov. 30, 2009)
(noting generally that § 48200 applies to all students under
eighteen and § 56041 applies to all students eighteen and
over). Moreover, a recent decision of our court describes
§ 56041 as determining which public agency is responsible
for providing special education to all students between the
ages of eighteen and twenty-two, although that decision does
not concern incarcerated students. See Orange Cnty. Dep’t of
Educ. v. California Dep’t of Educ., No. 09-56192, slip op.
21332-33.
Finally, LAUSD points out that other statutes governing
education services in correctional facilities might indicate a
legislative intent to delegate these responsibilities to county
boards of education. For example, county boards of education
are authorized to provide general education services to prison-
ers in county jails, although the relevant statutes are silent on
special education services. See, e.g., Cal. Educ. Code § 1900.
County boards of education are also responsible for operating
juvenile court schools, which provide special education ser-
vices to children incarcerated in juvenile facilities. See Cal.
Educ. Code §§ 48645.1, 48645.2, 56150. There are also logis-
tical concerns associated with requiring school districts to
provide special education services to students who are incar-
cerated in other parts of the state, although those concerns can
potentially be alleviated by the ability of school districts to
LOS ANGELES USD v. GARCIA 523
contract with one another to provide services. See Cal. Educ.
Code § 56369 (“A local educational agency may contract with
another public agency to provide special education or related
services to an individual with exceptional needs.”).
IV. Conclusion
The issue presented by the certified question — whether
§ 56041 applies to eligible students incarcerated in county
jails — is dispositive of this case. We are aware of no control-
ling precedent, and the answer to the certified question could
have a significant fiscal impact on local educational agencies
throughout the state of California. Thus, rather than decide
this novel question of California law ourselves, we respect-
fully request that the California Supreme Court decide the
certified question in order to provide an authoritative answer
to California’s educational agencies. We understand that the
California Supreme Court may reformulate the certified ques-
tion, and we agree to accept and follow the Court’s decision.
V. Administrative Information
If our request for decision is granted, we designate the Los
Angeles Unified School District as the petitioner. See Cal. R.
Ct. 8.548(b)(1).
The names and addresses of counsel for the Los Angeles
Unified School District are:
Barrett K. Green
Daniel L. Gonzalez
Littler Mendelson
A Professional Corporation
2049 Century Park East, 5th Floor
Los Angeles, CA 90067-3107
The names and addresses of counsel for Michael Garcia
are:
524 LOS ANGELES USD v. GARCIA
Paula D. Pearlman
Shawna L. Parks
Andrea F. Oxman
Disability Rights Legal Center
919 Albany Street
Los Angeles, CA 90015
Linda Dakin-Grimm
Daniel M. Perry
Delilah Vinzon
Milbank Tweed Hadley & McCloy, LLP
601 South Figueroa Street, 30th Floor
Los Angeles, CA 90017
As required by California Rule of Court 8.548(c) and (d),
the Clerk of this Court shall submit copies of all relevant
briefs, and an original and ten 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.