dissenting:
I part company because I don’t believe this is a Burlington1 case calling for equitable reimbursement, or that we should adopt the reasoning of the Second Circuit *1090in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir.2006).
I read Burlington, Florence County School District Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993), 20 U.S.C. § 1412(a)(10)(C), and the regulations,2 as indicating that tuition reimbursement for unilateral private placements is available under principles of equity only when FAPE was at issue before the child was withdrawn from public school and the school district had improperly denied a free and appropriate education. This was true in each of these cases, yet is not true here. Even if Congress meant the 1997 amendments to preserve equitable reimbursement where the child has never been enrolled in special education and related services, I doubt that it intended to expand the principle. At most, it seems to me, § 1415(i)(2)(C) carries forward the pre-1997 law on equitable relief. And as I see it, this case does not fall within the Burlington heartland because FAPE was not at issue when T.A.’s parents unilaterally withdrew him from the public sector.
In 2001, while T.A. was in public school, T.A.’s mother explicitly agreed with the school district’s assessment that T.A. was not eligible for special education services. T.A. was taken out of public school and enrolled in a three-week wilderness program because he had begun to binge on marijuana and had run away from home in early 2003. No Independent Education Plan (IEP) had been requested, proposed, or disputed before then. Likewise, no IEP was on the table prior to T.A.’s enrollment at Mt. Bachelor Academy. Thus, unlike “all Burlington reimbursement cases,” where “the parents’ rejection of the school district’s proposed IEP is the very reason for the parents’ decision to put their child in a private school,” Carter, 510 U.S. at 13, 114 S.Ct. 361, T.A.’s parents decided to put him in a private school for reasons of their own. Accordingly, T.A.’s parents have no right to equitable, retroactive reimbursement for private placement expenses.
This squares with the statutory scheme as well. If FAPE were not at issue and T.A. was not receiving special education and related services before withdrawal from public school, then he was being provided a free appropriate public education. A local educational agency that has made a free appropriate public education available has no obligation to pay the cost of education (including special education and related services) of a child with a disability at a private school when the parents elect the private placement. 20 U.S.C. § 1412(a)(10)(C)(i). However, if a child has previously received special education and related services, costs of a private placement may be reimbursed if a court or hearing officer finds that the school district had not made a free appropriate public education available to the child in a timely manner prior to the private enrollment. Id. § 1412(a)(10)(C)(ii).3
That FAPE was not at issue before T.A. was withdrawn also distances this case from Frank C, upon which the majority relies, for there the school district had prepared an IEP with which the parents were dissatisfied at the time of the private placement. This case is far closer factually to Greenland School District v. Amy N., *1091358 F.3d 150 (1st Cir.2004), where — as here — FAPE was not at issue when the child’s parents unilaterally removed her from public school. If it were necessary to choose between Frank G. and Greenland, Greenland is the more analogous precedent. But even on the majority’s take, it seems unnecessary to me to embrace (or reject) the rationale of either case to resolve T.A.’s appeal. The court could simply hold, consistent with our precedent in Ash, that the ball game changed once a due process hearing was requested. See Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 589 (9th Cir.1992) (recognizing right to reimbursement after the school district was first asked to provide services and had been given a reasonable opportunity to complete the process of evaluating the child and making a placement recommendation).4
This said, assuming that equitable principles extend to this situation, I do not understand the court’s opinion to compel a finding of reimbursement on remand. T.A. was unilaterally pulled from public school and placed in private school on account of drug issues, not learning disabilities; the parents receded from their position that T.A. was not entitled to special education services only after voluntarily placing him in private school and consulting an attorney; and there is no evidence of any change in T.A.’s need for special education services in the meantime. In these circumstances, the district court may well find again that T.A.’s parents assumed the financial risk of their own decision and that reimbursement is not “appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii).
. Burlington Sch. Comm. v. Mass. Dep’t of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
. See 34 C.F.R. § 300.403 (1999) ("Placement of children by parents if FAPE is at issue”); 34 C.F.R. § 300.148 (2006) ("Placement of children by parents when FAPE is at issue”).
. In the latter situation, the cost of reimbursement may be reduced or denied if the parents at the latest IEP meeting failed to tell the IEP team they were rejecting the public agency’s proposed placement, or the parents had not given 10 days notice to the district prior to removal; the parents didn't cooperate; or the parents' actions are found to be unreasonable. Id. § 1412(a)(10)(C)(iii).
. It is unclear to me whether a right to an IEP arose at that time given the district’s "child find” obligations, see, e.g., § 1412(a)(10)(A)(ii), because the issue was not briefed in these terms. But whatever the effect, it seems plausible that the case at that point would be on a different track from the one taken here because by then, T.A. was voluntarily in private school, entirely at the parents' initiative, without involvement of the school district and without FAPE being at issue. Otherwise, there would be no point to the distinctions drawn in the statute between children enrolled in private schools by their parents without consent of, or referral by, the school district and those placed in private schools by public agencies, see §§ 1412(a)(10)(A), (B), and (C); or to the requirements and limitations set forth in § 1412(a)(10)(C) with respect to the payment of costs for education of children placed in private schools without district involvement.