NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 15 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

N. F., a minor, by and through his Guardian No. 21-16260 Ad Litem, Melanie Flyte, D.C. No. 4:20-cv-04123-KAW Plaintiff-Appellant,

v. MEMORANDUM*

ANTIOCH UNIFIED SCHOOL DISTRICT,

A Local Educational Agency,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Kandis A. Westmore, Magistrate Judge, Presiding

Submitted April 13, 2022** San Francisco, California

Before: SILER,*** W. FLETCHER, and M. SMITH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Plaintiff N.F.—a child whom we refer to using only his initials, and who

brought suit through his guardian ad litem, Melanie Flyte—has asked us to reverse

the district court’s denial of his petition to overturn the decision of an administrative

law judge, which in turn dismissed an administrative complaint filed by plaintiff

pursuant to the Individuals with Disabilities Education Act (IDEA),

20 U.S.C. §§ 1400, et seq. The parties’ familiarity with the record is assumed. We

affirm for substantially the same reasons given by the district court, which concluded

that the public charter school in which N.F.’s parents unilaterally enrolled him was

the local education agency (LEA) obligated to provide N.F. with a free appropriate

public education (FAPE), and that N.F. failed to show that defendant Antioch

Unified School District was required to formally offer him an FAPE before his

parents enrolled him in the District.1

Like the district court, we reject N.F.’s argument that the term “parentally-

placed private school children with disabilities” in 34 C.F.R. § 300.130 includes

children unilaterally placed by their parents in public charter schools. To be sure, §

300.130 extends to “elementary school[s],” and that term includes “public

elementary charter school[s],” 34 C.F.R. § 300.13. However, the definition in §

300.130 expressly only extends to “children with disabilities enrolled by their

1 We need not decide whether the district court erred in denying N.F.’s motion to supplement the record, as N.F. has failed to explain how any of the additional evidence might alter the outcome of this case.

2 parents in private . . . schools or facilities that meet the definition of [an] elementary

school.” 34 C.F.R. § 300.130 (emphasis added). So, too, for 34 C.F.R. § 300.131,

which requires an LEA to “locate, identify, and evaluate all children with disabilities

who are enrolled by their parents in private . . . elementary schools and secondary

schools located in the school district served by the LEA.” (Emphasis added.) See

also 20 U.S.C. § 1412(a)(10)(A). These regulations have no application here

because it is undisputed that N.F. was enrolled in a public charter school, not a

private institution. See, e.g., Today’s Fresh Start, Inc. v. L.A. Cty. Off. of Educ., 303

P.3d 1140, 1144 (Cal. 2013) (in California, charter schools are public schools).

The fact that N.F. was enrolled in a public school also distinguishes cases such

as Bellflower Unified School District v. Lua, which held that “a school district must

evaluate a child residing in its district for purposes of making an FAPE available to

her, even if she is enrolled in a private school in another district.” 832 F. App’x 493,

495-96 (9th Cir. 2020) (citing Assistance to States for the Education of Children

with Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg.

46,540, 46,592 (Aug. 14, 2006)); see also 71 Fed. Reg. at 46,592 (“[34 C.F.R §]

300.131, consistent with section 612(a)(10)(A)(i) of the [IDEA], requires that the

LEA where private elementary schools and secondary schools in which the child is

enrolled are located . . . is responsible for conducting child find” (emphasis added)).

Although public charter schools in California are required to offer students an FAPE,

3 see 34 C.F.R. § 300.209; Cal. Educ. Code §§ 47641, 47646, private institutions

generally are not. We have required LEAs to formally offer an FAPE to parents who

are considering paying for private special education for their children so that parents

can determine whether they are eligible for reimbursement. See Union School

District v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994). That rationale does not extend

to this case, where it is undisputed that N.F. is already receiving an FAPE from a

different LEA, namely a public charter school.

AFFIRMED.

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