                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


M.C., by and through his guardian          No. 14-56344
ad litem M.N.; M. N.,
                Plaintiffs-Appellants,      D.C. No.
                                         2:13-cv-01452-
                  v.                      DMG-MRW

ANTELOPE VALLEY UNION HIGH
SCHOOL DISTRICT,                           AMENDED
              Defendant-Appellee.           OPINION


      Appeal from the United States District Court
         for the Central District of California
        Dolly M. Gee, District Judge, Presiding

         Argued and Submitted August 2, 2016
                 Pasadena, California

                  Filed March 27, 2017
                 Amended May 30, 2017

       Before: Stephen Reinhardt, Alex Kozinski,
       and Kim McLane Wardlaw, Circuit Judges.

               Opinion by Judge Kozinski
2      M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

                            SUMMARY*


        Individuals with Disabilities Education Act

    The panel filed an amended opinion reversing the district
court’s judgment in favor of the defendant school district and
remanding for further proceedings in an action brought by a
student and his parent under the Individuals with Disabilities
Education Act.

    The panel held that the district court erred in deferring to
the administrative law judge’s findings after a due process
hearing because the ALJ was not thorough and careful.

    The panel held that the plaintiffs did not waive a claim
that the school district violated the IDEA’s procedural
requirements by failing to adequately document the services
provided by a teacher of the visually impaired. The plaintiffs
did not object to the omission of this claim from the ALJ’s
restatement of issues, but they were not aware until later that
the school district had unilaterally changed the student’s
individualized educational program (IEP). The panel held
that the school district’s presentation of evidence on the claim
vitiated any waiver on plaintiffs’ part.

    The panel held that, absent the parent’s consent, the
school district was bound by the IEP as written, and the
unilateral amendment was a per se procedural violation of
the IDEA because it vitiated the parent’s right to participate
at every step of the IEP drafting process. There was an

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
      M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.           3

additional procedural violation because the IEP as initially
drafted did not provide the parent with an accurate offer of
the services provided to the student by a teacher of the
visually impaired. The panel held that the parent suffered
procedural harm by not being apprised of the actual status of
the services being provided, causing her to incur legal fees in
attempting to protect that right.

    The panel held that the school district’s failure to specify
that assistive technology devices that were provided to the
student infringed the parent’s opportunity to participate in the
IEP process and denied the student a free appropriate public
education.

    The panel held that the school district’s failure to respond
to the plaintiffs’ due process complaint violated the IDEA
and due process. The panel remanded for a determination of
the prejudice the parent suffered as a result of the school
district’s failure to respond and the award of appropriate
compensation therefor.

    Regarding substantive violations of the IDEA, the panel
held that, due to the procedural violation regarding services
provided by a teacher of the visually impaired, the burden of
proof shifted to the school district to show that the services
the student actually received were substantively reasonable.
The panel remanded so that the school district could have an
opportunity to make such a showing before the district court.

    The plaintiffs claimed that the school district denied the
student a free appropriate public education by failing to
develop measurable goals in all areas of need and failing to
provide adequate orientation and mobility services, as well as
adequate social skills instruction. The panel remanded so
4     M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

that the district court could consider these claims in light of
Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988 (2017),
which clarified that to meet its substantive obligation under
the IDEA, a school district must offer an IEP reasonably
calculated to enable a child to make progress appropriate in
light of the child’s circumstances.


                         COUNSEL

Christian M. Knox (argued), Colleen A. Snyder Holcomb,
Daniel R. Shaw, and F. Richard Ruderman, Ruderman &
Knox LLP, Sacramento, California, for Plaintiffs-Appellants.

David R. Mishook and Christopher J. Fernandes, Fagen
Friedman & Fulfrost LLP, Oakland, California; for
Defendant-Appellee.

Jennifer E. Nix and Carl D. Corbin, School and College of
Legal Services of California, Santa Rosa, California; Keith J.
Bray and D. Michael Ambrose, California School Boards
Association/Education Legal Alliance, West Sacramento,
California; Ronald D. Wenkart, Orange County Department
of Education, Costa Mesa, California; for Amici Curiae
California School Boards Association and Education Legal
Alliance.

Barrett K. Green and Daniel L. Gonzalez, Littler Mendelson
PC, Los Angeles, California, for Amicus Curiae William S.
Hart Union High School District.
      M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.          5

                         OPINION

KOZINSKI, Circuit Judge:

   The Individuals with Disabilities Education Act (“IDEA”)
guarantees children with disabilities a free appropriate public
education (“FAPE”). 20 U.S.C. § 1400(d)(1)(A). We
consider the interplay between the IDEA’s procedural and
substantive safeguards.

                     BACKGROUND

    M.C. suffers from Norrie Disease, a genetic disorder that
renders him blind. He also has a host of other deficits that
cause him developmental delays in all academic areas.
M.C.’s mother, M.N., met with several school administrators
and instructors to discuss M.C.’s educational challenges and
draft an individualized educational program (“IEP”). At the
conclusion of this meeting, she signed an IEP document and
“authorize[d] the goals and services but [did] not agree it
provides a FAPE.”

   M.N. then filed a due process complaint alleging that the
Antelope Valley Union High School District (the “District”)
committed procedural and substantive violations of the IDEA.
The due process hearing took place before an Administrative
Law Judge who denied all of M.C.’s claims and the district
court affirmed.

                       DISCUSSION

   The IDEA’s “primary goal is ‘to ensure that all children
with disabilities have available to them a free appropriate
public education that emphasizes special education and
6     M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

related services . . . .’” J.L. v. Mercer Island Sch. Dist.,
592 F.3d 938, 947 (9th Cir. 2010) (quoting 20 U.S.C.
§ 1400(d)(1)(A)). A FAPE must be “tailored to the unique
needs of the handicapped child by means of an
‘individualized educational program’ (IEP).” Hendrick
Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S.
176, 181 (1982) (quoting 20 U.S.C. § 1401(18)). An IEP
must contain, among other things, “a statement of the child’s
present levels of academic achievement,” “a statement of
measurable annual goals” and “a statement of the special
education and related services . . . to be provided to the
child.” 20 U.S.C. § 1414(d)(1)(A)(i). When formulating an
IEP, a school district “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), so that the process “will be informed not only by the
expertise of school officials, but also by the input of the
child’s parents or guardians,” Endrew F. v. Douglas Cty. Sch.
Dist., 580 U.S. __, slip op. at 11 (Mar. 22, 2017).

I. STANDARD OF REVIEW

    Judicial review in IDEA cases “differs substantially from
judicial review of other agency actions, in which courts are
generally confined to the administrative record and are held
to a highly deferential standard of review.” Ojai Unified Sch.
Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993). We
review whether the state has provided a FAPE de novo.
Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
We can accord some deference to the ALJ’s factual findings,
but only where they are “thorough and careful,” and “the
extent of deference to be given is within our discretion.” Id.
(citations omitted).
        M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.                    7

    The district court accorded the ALJ’s findings substantial
deference because the ALJ “questioned witnesses during a
three-day hearing” and “wrote a 21-page opinion that
reviewed the qualifications of witnesses and culled relevant
details from the record.” But neither the duration of the
hearing, nor the ALJ’s active involvement, nor the length of
the ALJ’s opinion can ensure that the ALJ was “thorough and
careful.”1 J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist.,
626 F.3d 431, 440 (9th Cir. 2010). And, in this case, the ALJ
was neither thorough nor careful. As plaintiffs point out, the
ALJ didn’t address all issues and disregarded some of the
evidence presented at the hearing. Even the district court
recognized that the ALJ’s analysis “is not entirely satisfying.”
Accordingly, the district court erred in deferring to the ALJ’s
findings.

II. PROCEDURAL VIOLATIONS

    The IDEA contains numerous procedural safeguards that
are designed to protect the rights of disabled children and
their parents. See 20 U.S.C. § 1415. These safeguards are a
central feature of the IDEA process, not a mere afterthought:


    1
      In Timothy O. v. Paso Robles Unified Sch. Dist., for example, we
reversed a lengthy ALJ opinion with detailed findings that were
unsupported by the record. 822 F.3d 1105, 1117, 1123 (9th Cir. 2016).
The district court nevertheless had deferred to the ALJ’s findings,
apparently impressed by the length and superficial plausibility of the
ALJ’s opinion. Id. at Dist. Ct. Dkt. No. 78. Such blind deference is not
appropriate. Rather, the district judge must actually examine the record
to determine whether it supports the ALJ’s opinion. See, e.g., J.G. ex rel.
Jimenez v. Baldwin Park Unified Sch. Dist., 78 F. Supp. 3d 1268, 1281–82
(C.D. Cal. 2015) (Olguin, J.) (according “substantially less deference”
where “the ALJ’s decision ignore[d] and mischaracterize[d] key
evidence”).
8     M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

“Congress placed every bit as much emphasis upon
compliance with procedures giving parents and guardians a
large measure of participation at every stage of the
administrative process as it did upon the measurement of the
resulting IEP against a substantive standard.” Rowley,
458 U.S. at 205. Because disabled children and their parents
are generally not represented by counsel during the IEP
process, procedural errors at that stage are particularly likely
to be prejudicial and cause the loss of educational benefits.

    Therefore, compliance with the IDEA’s procedural
safeguards “is essential to ensuring that every eligible child
receives a FAPE, and those procedures which provide for
meaningful parent participation are particularly important.”
Amanda J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 891 (9th
Cir. 2001). “Procedural violations that interfere with parental
participation in the IEP formulation process undermine the
very essence of the IDEA.” Id. at 892.

    Plaintiffs allege that the District violated the IDEA by
(1) failing to adequately document the services provided by
a teacher of the visually impaired (“TVI”), (2) failing to
specify the assistive technology (“AT”) devices provided and
(3) failing to file a response to the due process complaint.

    A. Failure to Adequately Document TVI Services

    Plaintiffs claim that the District didn’t provide a “‘written
record of reasonable expectations’ to hold the District
accountable for the provision of vision services to M.C.”
(quoting Amanda J., 267 F.3d at 891). A brief history of the
District’s shifting offer of TVI services is necessary: The IEP
document signed by M.N. and the District included an offer
of 240 minutes of TVI services per month. According to the
        M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.                  9

District, it realized a week later this was a mistake. But the
District did nothing to notify M.N. More than a month later,
the District purported to unilaterally amend the IEP by
changing the offer of TVI services to 240 minutes per week.
The District didn’t send M.N. a copy of the revised IEP or
otherwise notify her of this change. In fact, she didn’t learn
of it until the first day of the due process hearing, a month
later. Moreover, at the hearing, District witnesses testified
that the District offered M.C. 300 minutes of TVI services per
week.

    Plaintiffs claim that the District’s failure to accurately
document the offer of TVI services denied M.C. a FAPE by
precluding M.N. from meaningfully participating in the IEP
process. Before discussing the merits of this claim we must
address the District’s argument that the claim is waived.

    1. The district judge recognized that plaintiffs’ due
process complaint “arguably encompassed Plaintiffs’
argument that the provision of TVI services was inadequate.”
The judge nevertheless found that plaintiffs “waived any
argument that the District’s failure to specify the frequency
of TVI services in the August 2, 2012 IEP resulted in an
actual denial of an educational benefit to M.C.” because the
due process complaint was superseded by the ALJ’s
restatement of issues, which omitted the adequacy of TVI
services.

     The district judge held that plaintiffs waived the issue by
failing to object to this omission.2 But plaintiffs weren’t


    2
      It is apparently common practice in IDEA cases for ALJs to restate
and reorganize the issues presented by the parties. See J.W., 626 F.3d at
442; Ford ex rel. Ford v. Long Beach Unified Sch. Dist., 291 F.3d 1086,
10     M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

aware that the District had unilaterally changed the IEP until
after the ALJ had restated the issues, so they could hardly
have raised that as a procedural violation. And it turns out
that the amendment didn’t even provide an accurate statement
of the services that M.C. was offered. District witnesses later
testified that the District intended to offer M.C. 300 minutes
of TVI services per week.

     The district judge purported to understand the difficult
position that plaintiffs were in due to this sequence of events
but still found that “there [was] no indication in the record
that Plaintiffs ever sought during the administrative hearing
to amend the issues to be addressed to include the District’s
failure to provide M.C. with adequate TVI services.” But we
generally treat issues as if they were raised in the complaint
if they are tried by consent. Rule 15 of the Federal Rules of
Civil Procedure provides that an issue “tried by the parties’
express or implied consent . . . must be treated in all respects
as if raised in the pleadings.” Fed. R. Civ. P. 15(b)(2); see
6A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1491 (3d ed.). While we haven’t
previously recognized this practice in IDEA cases, it’s often
been applied in a variety of other agency adjudications:
before the IRS, Lysek v. C.I.R., 583 F.2d 1088, 1091–92 (9th
Cir. 1978), the Department of Labor, 20 C.F.R. § 901.40;
Pierce County v. U.S. ex rel. Dep’t of Labor, 699 F.2d 1001,
1004 (9th Cir. 1983), and the Patent and Trademark Office,


1090 (9th Cir. 2002). We question the wisdom of such a procedure where
the parents are represented by counsel and the complaint states the issues
intelligibly, as was the case here. A party bringing a due process
complaint is entitled to frame the issues it wishes to present and should not
be put in the difficult position of contradicting the presiding official who
will soon be the trier of fact. In such circumstances, failure to object will
not be deemed a waiver of any claim fairly encompassed in the complaint.
        M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.                11

US PTO Stip. § 507.03. We see no reason IDEA cases
should be treated differently.

    Both sides presented extensive evidence regarding the
District’s offer of TVI services. Multiple witnesses testified
as to the initial offer of 240 minutes per month, the District’s
purported secret amendment of 240 minutes per week, and
the District’s actual offer of 300 minutes per week as
presented at the hearing. The District’s presentation of
evidence on this point vitiated any waiver on M.N.’s part.
Accordingly, we hold that plaintiffs’ claim that the District
committed a procedural violation of the IDEA by failing to
adequately document its offer of TVI services isn’t waived.3

    2. The IEP is a “formal, written offer [that] creates a
clear record that will do much to eliminate troublesome
factual disputes . . . about when placements were offered,
what placements were offered, and what additional education
assistance was offered to supplement a placement, if any.”
Union Sch. Dist., 15 F.3d at 1526. The IEP must specify “the
anticipated frequency, location, and duration of [education]
services.” 20 U.S.C § 1414(d)(1)(A)(i)(VII). Such “a formal,
specific offer from a school district will greatly assist parents
in ‘present[ing] complaints with respect to any matter relating
to the . . . educational placement of the child.’” Union Sch.
Dist., 15 F.3d at 1526 (quoting 20 U.S.C. § 1415(b)(1)(E)).




    3
       The District also makes a separate waiver argument: It claims that
plaintiffs waived their objection to the admission of the amendment into
evidence. While plaintiffs did waive their objection to the admissibility
of the amendment, for the reasons described above, see supra at 9–11, the
waiver does not extend to its legal significance.
12       M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

    The district judge agreed with the ALJ’s finding “that the
September 17, 2012 Amendment merely corrected an
unintentional error in the August 2, 2012 IEP.” We fail to see
how this can be so. An IEP, like a contract, may not be
changed unilaterally. It embodies a binding commitment and
provides notice to both parties as to what services will be
provided to the student during the period covered by the IEP.
If the District discovered that the IEP did not reflect its
understanding of the parties’ agreement, it was required to
notify M.N. and seek her consent for any amendment. See
20 U.S.C. § 1414(d)(3)(D), (F) (discussing amendments to
the IEP). Absent such consent, the District was bound by the
IEP as written unless it sought to re-open the IEP process and
proposed a different IEP.

    Because the District did neither of these things, the IEP
actually in force at the time of the hearing was that signed by
the parties, not that presented by the District as the amended
IEP. Allowing the District to change the IEP unilaterally
undermines its function of giving notice of the services the
school district has agreed to provide and measuring the
student’s progress toward the goals outlined in the IEP.
Moreover, any such unilateral amendment is a per se
procedural violation of the IDEA because it vitiates the
parents’ right to participate at every step of the IEP drafting
process.4

     4
       The District’s purported amendment was also improper for a
separate reason: The District presented no evidence supporting its claim
that the parties agreed to 240 minutes of TVI services per week when the
IEP was drafted. Indeed, it is unclear how the District came up with this
figure given that its witnesses at the hearing testified that M.C. was
actually provided 300 minutes of TVI services per week. Nevertheless,
the ALJ and the district court accepted this as true. However, a party’s
mere allegations are not proof.
        M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.                      13

    Finally, we must express our disapproval of the District’s
conduct with respect to this issue. The District discovered
what it believed was a mistake in the IEP just a week after it
was signed, yet failed to bring this problem to M.N.’s
attention until weeks later, on the first day of the due process
hearing. Even then, its lawyers didn’t identify the purported
amendment but rather buried it in a document production,
leaving it to plaintiffs’ counsel to stumble upon it. Had the
District raised the issue immediately upon discovering the
suspected error, it’s entirely possible that M.N. would have
found the amount of TVI services to be satisfactory.
Plaintiffs might have avoided hiring a lawyer and taking the
case to a due process hearing—saving attorneys’ fees on both
sides and perhaps disruption to M.C.’s education. We find no
justification in the record for the District’s failure to be
forthright on this point and the District has offered none in its
brief or when questioned about it at oral argument.5

    Because the District denied M.N. an opportunity to
participate in the IEP drafting process by unilaterally revising
the IEP, and because the IEP as initially drafted didn’t
provide M.N. with an accurate offer of the TVI services
provided to M.C., the District committed two procedural
violations of the IDEA. Union Sch. Dist., 15 F.3d at 1526.
The district court nevertheless found that M.C. wasn’t denied
a FAPE, reasoning that “[a] procedural violation denies a
child a FAPE when the violation seriously infringe[s] the
parents’ opportunity to participate in the IEP formation


    5
      On remand, the district court shall determine whether this course of
conduct was a deliberate attempt to mislead M.N. or mere bungling on the
part of the District and its lawyers. If the district court determines that the
former is the case, it shall impose a sanction sufficiently severe to deter
any future misconduct.
14    M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

process.” (emphasis in original) (internal quotation and
citation omitted). But, as explained above, M.N. was denied
an opportunity to participate in the IEP drafting process.
Moreover, in enacting the IDEA, Congress was as concerned
with parental participation in the enforcement of the IEP as it
was in its formation. See Rowley, 458 U.S. at 205 (discussing
Congress’s intent to “giv[e] parents and guardians a large
measure of participation at every stage of the administrative
process” (emphasis added)). Under the IDEA, parental
participation doesn’t end when the parent signs the IEP.
Parents must be able to use the IEP to monitor and enforce
the services that their child is to receive. When a parent is
unaware of the services offered to the student—and,
therefore, can’t monitor how these services are provided—a
FAPE has been denied, whether or not the parent had ample
opportunity to participate in the formulation of the IEP.

     Whether, and to what extent, M.C. was prejudiced by
these procedural improprieties is a more difficult question.
Assuming that M.C. was receiving 300 minutes of TVI
services per week, as the District apparently intended to offer,
M.C. may not have suffered any substantive harm. M.N.
nevertheless suffered procedural harm by not being apprised
of the actual status of the services being provided, causing her
to incur legal fees in attempting to protect that right. Because
any TVI services provided beyond what was specified in the
written IEP would have been gratuitous, M.N. could not be
sure that the District would continue to provide them. With
only 240 minutes per month (about an hour a week) specified
in the IEP, the District was entitled to cut back these services
to that level. M.N. was amply justified in seeking the aid of
counsel to clarify the amount of services provided. Incurring
unnecessary legal fees is, of course, a form of prejudice that
denies a student and his parents an educational benefit. See
      M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.        15

Parents on Behalf of Student v. Julian Charter Sch., OAH
No. 2012100933, at 2 (Jan. 17, 2013) (order denying motion
to dismiss). The fact that the District could have avoided the
harm by promptly notifying M.N. that it was agreeing to
provide far more services than specified in the IEP only
makes matters worse.

   B. Failure to Identify the AT Devices Provided

     When a student requires “a particular device or service”
California requires that the IEP “include a statement to that
effect.” Cal. Educ. Code § 56341.1(b)(5), (c). M.C.’s IEP
initially indicated that M.C. didn’t require AT devices or
services. The District conceded that this was erroneous and
issued an amendment that changed the checkbox for AT
devices from “no” to “yes.” But neither the IEP nor the
amendment specified the devices that M.C. required.

    The district judge recognized that “the language of
[section 56341.1] requires the District to identify the
particular types of AT devices and services to be provided to
M.C.” But the judge found that this procedural violation
didn’t “seriously infringe[] M.N.’s opportunity to participate
in the IEP formulation process.” As we’ve made clear,
however, parents must be able to participate in both the
formulation and enforcement of the IEP. See supra at 13–14.
Even if M.N. was able to participate in the IEP’s formulation,
the District’s failure to identify the AT devices that M.C.
required rendered the IEP useless as a blueprint for
enforcement.

    The district judge noted that the IEP team discussed “at
least some of the AT services and equipment to be provided
to M.C.” at the IEP meeting. But a discussion does not
16     M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

amount to an offer. M.N. could force the District to provide
only those services and devices listed in the IEP, not those
discussed at the IEP meeting but left out of the IEP document.
See Union Sch. Dist., 15 F.3d at 1526 (requiring a “formal,
written offer”). Indeed, items discussed at the IEP meeting
but not included in the IEP document could be deemed to
have been omitted on purpose.

    Nor was this a case where “everyone involved in the
individualized education team—including [the student’s]
parents—knew of the amounts [of services]” that were
offered. J.L., 592 F.3d at 953. M.N. testified at the due
process hearing that she didn’t know which AT devices were
offered to M.C. M.C.’s TVI services provider testified that
M.C. received a laptop, a Book Port, software developed for
the visually impaired, a screen reading program, a talking
calculator and an Eye-Pal Solo. But M.N. was only aware
that M.C. received a laptop, braille machine, braille calendar
and a Book Port. M.N. also testified that the laptop didn’t
have the software that M.C. needed, but she didn’t know
which software was missing. Because the IEP didn’t specify
which AT devices were being offered, M.N. had no way of
confirming whether they were actually being provided to
M.C. The District’s failure to specify the AT devices that
were provided to M.C. thus infringed M.N.’s opportunity to
participate in the IEP process and denied M.C. a FAPE. Id.
at 953.

     C. Failure to Respond to the Complaint

    The IDEA requires a school district to respond to a
parent’s due process complaint within 10 days. 20 U.S.C.
§§ 1415(c)(2)(B)(i)(I) & 1415(c)(2)(B)(ii). The District
failed to do this and plaintiffs argue that this violated the
        M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.                   17

IDEA. To be clear, the District didn’t just miss a deadline:
It failed to ever respond to the complaint. The district court
found that the failure to respond didn’t infringe M.N.’s
opportunity to participate in the IEP formulation process and,
therefore, wasn’t a denial of a FAPE. But this misses the
mark. The District’s failure to respond may not have denied
plaintiffs a FAPE but it still violated the IDEA and due
process.

    Like an answer to a complaint, a response serves an
important dual purpose: It gives notice of the issues in
dispute and binds the answering party to a position. See, e.g.,
United States v. All Assets Held at Bank Julius Baer & Co.,
959 F. Supp. 2d 81, 116 n.21 (D.D.C. 2013) (noting that “one
function of an answer” is to identify “points of
disagreement”); Lopez v. U.S. Fidelity & Guaranty Co.,
18 F.R.D. 59, 61 (D. Alaska 1955) (explaining that the
purpose of rules governing answers to a complaint “is to
prevent surprise”). Failure to file a response puts the
opposing party at a serious disadvantage in preparing for the
hearing, as it must guess what defenses the opposing party
will raise. The problem is particularly severe in IDEA cases
because there is no discovery.

    When a school district fails to file a timely response, the
ALJ must not go forward with the hearing. Rather, it must
order a response and shift the cost of the delay to the school
district, regardless of who is ultimately the prevailing party.6



    6
       Even if a motion to compel a response isn’t brought, the ALJ should
raise the issue sua sponte at the pre-hearing conference. This is imperative
in IDEA cases where parents often proceed without the aid of counsel and
may not be aware that the IDEA requires a school district to respond to the
18         M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

We remand for a determination of the prejudice M.N.
suffered as a result of the District’s failure to respond and the
award of appropriate compensation therefor.7

III.        SUBSTANTIVE VIOLATIONS

    In order for M.C. to have received a FAPE, the IEP must
have “(1) addresse[d] [his] unique needs, (2) provide[d]
adequate support services so [M.C.] can take advantage of the
educational opportunities, and (3) [been] in accord with the
individualized education program.” Capistrano Unified Sch.
Dist. v. Wartenberg, 59 F.3d 884, 893 (9th Cir. 1995) (citing
Rowley, 458 U.S. at 188–89).

    1. Plaintiffs argue that the District denied M.C. a FAPE
by providing him with less than 300 minutes of TVI services
per week. The District doesn’t address the substance of
plaintiffs’ argument, arguing that the issue was waived. For
the reasons explained above, plaintiffs haven’t waived this
issue. See supra at 9–11.

    Both the ALJ and district judge placed the burden on
M.N. to show that the services provided to M.C. were
inadequate. Normally, the party alleging a violation of the
IDEA bears the burden of showing that the services received
amounted to a denial of a FAPE. See Schaffer ex rel. Schaffer


complaint within 10 days. See 20 U.S.C. §§ 1415(c)(2)(B)(i)(I) &
1415(c)(2)(B)(ii).
       7
       We do not address the reverse situation where the due process case
is brought by the school district and the parents fail to file a response.
Different considerations may apply in such circumstances, especially if
the parents are pro se. We leave that situation for a case that presents the
issue.
      M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.            19

v. Weast, 546 U.S. 49, 57–58 (2005). But here there was a
procedural violation that deprived M.N. of the knowledge of
what services were being offered to M.C. If parents don’t
know what services are offered to the student—in kind or in
duration—it’s impossible for them to assess the substantive
reasonableness of those services. In such circumstances, the
burden shifts to the school district to show that the services
the student actually received were substantively reasonable.
We remand so the District can have an opportunity to make
such a showing before the district court.

    2. Plaintiffs also claim that the District denied M.C. a
FAPE by failing to develop measurable goals in all areas of
need, including “the areas of life skills, residential travel, and
business travel.” Additionally, plaintiffs argue that the
District failed to provide adequate orientation and mobility
services, as well as adequate social skills instruction. The
district court found that plaintiffs failed to meet their burden
of showing that the IEP wasn’t “reasonably calculated to
confer [M.C.] with a meaningful benefit.” J.W., 626 F.3d at
439. In doing so, it relied on the Supreme Court’s comment
in Rowley that, by “an ‘appropriate’ education, it is clear that
[Congress] did not mean a potential-maximizing education.”
458 U.S. at 197 n.21. But Rowley “d[id] not attempt to
establish any one test for determining the adequacy of
educational benefits.” Id. at 202. Recently, the Supreme
Court clarified Rowley and provided a more precise standard
for evaluating whether a school district has complied
substantively with the IDEA: “To meet its substantive
obligation under the IDEA, a school must offer an IEP
reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Endrew F.,
slip op. at 11. In other words, the school must implement an
IEP that is reasonably calculated to remediate and, if
20    M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.

appropriate, accommodate the child’s disabilities so that the
child can “make progress in the general education
curriculum,” id. at 3 (citation omitted), taking into account
the progress of his non-disabled peers, and the child’s
potential. We remand so the district court can consider
plaintiffs’ claims in light of this new guidance from the
Supreme Court.

IV.     PREVAILING PARTY

    The IDEA provides that a “court, in its discretion, may
award reasonable attorneys’ fees as part of the costs to the
parent or guardian of a child or youth with a disability who is
a prevailing party.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). A parent
need not succeed on every issue in order to be a prevailing
party. Park v. Anaheim Union High Sch. Dist., 464 F.3d
1025, 1035 (9th Cir. 2006). Rather, parents are prevailing
parties if they “succeed[] on any significant issue in litigation
which achieves some of the benefit [they] sought in bringing
the suit.” Id. at 1034 (emphasis in original) (citation
omitted). M.N. is the prevailing party in this appeal and is
therefore entitled to attorneys’ fees. See Ash v. Lake Oswego
Sch. Dist., 980 F.2d 585, 590 (1992).

                           *   *    *

    The District’s failure to adequately document the TVI
services and AT devices offered to M.C. violated the IDEA
and denied M.C. a FAPE. These procedural violations
deprived M.N. of her right to participate in the IEP process
and made it impossible for her to enforce the IEP and
evaluate whether the services M.C. received were adequate.
At the very least, plaintiffs are entitled to have the District
draft a proper IEP and receive compensatory education to
      M.C. V. ANTELOPE VALLEY UNION HIGH SCH. DIST.       21

“place [M.C.] in the same position [he] would have occupied
but for the school district’s violations of [the] IDEA.” R.P.
ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117,
1125 (9th Cir. 2011) (citations omitted). We remand the case
to the district court for proceedings consistent with this
opinion.

   REVERSED and REMANDED.
