Results
Adoption Assistance Program funding does not excuse a school district’s obligation to craft and fully implement a child’s IEP
B.H. was suffering with severe emotional problems like self-harm, depression and suicidal ideation. His adoptive parents were able to get financial aid from the Adoption Assistance Program to help pay for placement in a residential treatment facility. The Court of Appeal rejected the school district’s argument that the Adoption Assistance Program funding was placement by a non-educational agency which ended the school’s obligation to implement the IEP it crafted.
The Court of Appeal found that the primary purpose of the Education code is to benefit students. And that prompt implementation of an IEP is imperative, because the consequences of delay may be dire, especially for students in the midst of mental health crises.
B.H. v. Manhattan Beach Unified School District, 35 Cal. App. 5th 563 (2019)
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District’s Functional Behavioral Assessment was deficient in not comprehensively and validly assessing child’s behavior resulting in a denial of a free appropriate public education
Student was an elementary school aged boy. He engaged in significant maladaptive behaviors while at school. The District’s behavioral assessment was flawed because it did not capture accurate data or properly interpret what data it had about the child.
Student v. Templeton Unified School District, OAH Case #2017051280 (December 11, 2017)
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Student v. Templeton Unified School District, OAH Case #2017051280 (December 11, 2017)
District’s Functional Behavioral Assessment was deficient in not comprehensively and validly assessing child’s behavior resulting in a denial of a free appropriate public education.)
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Stay put applies to students who transfer between school years within the same state
Student has Autism, intellectual disability and serious maladaptive behaviors. He transferred school districts between school years because his mother passed away. The new school district insisted on a significant reduction in services, which had been producing positive results for the child. A federal court rejected the district’s argument that the stay put doctrine did not apply because the child transferred to the new district between school years.
R.F. by Frankel v. Delano Union School Dist., 224 F.Supp.3d 979 (E.D. Cal. 2016)
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District Denied DHH Student FAPE by not Developing his Language to an Appropriate Level of Sufficiency
A federal court reversed a Decision by the California Office of Administrative Hearings and ordered a school to refer J.G. to the California School for the Deaf. J.G. was a high school student who could read only at an elementary school level. His primary mode of communication was American Sign Language (ASL). He needed to be immersed in ASL to develop his language to an appropriate level of proficiency. This would also help him to learn to read at a higher level according to the federal court judge. J.G. ex rel. Jimenez v. Baldwin Park Unified School Dist., 78 F. Supp, 3d 1268 (C.D. Cal. 2015).
School violated the law by not tying Student’s eligibility to IEP services to her hearing impairment
The Ninth Circuit Court of Appeals, reversed a decision by the trial court and the Office of Administrative Hearings that a pre-school child was not eligible for special education because she had a hearing impairment. The Court of Appeals recognized that the child was deprived of her right to a free appropriate public education because it was necessary to tie the child’s eligibility for services to her hearing impairment.
S.P. v. East Whittier City School District, 735 Fed, Appx. 320 (9th Cir. 2018)
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S.P. v. East Whittier City School District, 735 Fed, Appx. 320 (9th Cir. 2018)
(failure to correctly identify a child’s eligibility resulted in a denial of fape.)
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IEP team members must review all relevant information about the child when determining if conduct is a manifestation of the child’s disability
A high school student sent messages to friends about using a gun at school. These messages were intended as jokes. The student suffered from obsessive compulsive disorder, anxiety and Tourette syndrome. The student and family cooperated with the school and police investigation. Within hours the school announced to the public that they, and law enforcement, determined that there was no credible threat of harm. The school took steps to expel the student, but did not fully review her history of disability contained in their records. The Office of Administrative Hearings determined that Student’s conduct was a manifestation of her disability and that the district needed to evaluate and address the conduct with an appropriate behavioral plan. The child was not expelled.
Student v. William S. Hart Union High School District, OAH Case#2017081232
(October 13, 2017)
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Where idea claim had to be exhausted in administrative proceeding in order to bring independent but related ada claims, prevailing party on ada claim could recover fees for underlying administrative proceeding
The law requires that certain disability discrimination claims first be brought through administrative proceedings before going to court. The court ruled that attorney’s fees incurred to bring the claim through that administrative process were recoverable in a later federal court disability discrimination claim.
K.M. ex rel. Bright v. Tustin Unified School Dist., 78 F. Supp. 3d
1289(C.D. Cal. 2015)
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Student Allowed to Supplement Administrative Record in Federal Court Appeal
A deaf student was allowed to supplement the administrative record with a statement under oath and a personal letter explaining that he wanted to go to the California School for the Deaf so that he could communicate directly with his peers with ASL. He did not want to have to use an adult interpreter, which he found awkward and uncomfortable. The District Court ruled that the statement was appropriate because it was relevant, non-cumulative, and otherwise admissible. J.G. v. Baldwin Park Unified School District, U.S. District Court Case #13cv5690 (April 14, 2014).
Students state claims under §504/ada integration mandates entitling them to seek monetary damages
Students have Autism and speech and language impairments. The school kept them in special day classes and segregated away from other non-disabled children, even though the family made repeated requests over the years for placement into general education classes. The court held these facts were adequate to state a claim for disability discrimination under §504 and the ADA.
Luong v. East Side Union High School Dist., 265 F.Supp.3d 1045, (N.D. Cal. 2017)
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Luong v. East Side Union High School Dist., 265 F.Supp.3d 1045, (N.D. Cal. 2017)
(Plaintiffs states claims under §504/ada integration mandates entitling them to seek monetary damages.)
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Hitting another student after being provoked was a manifestation of the child’s ADHD so he cannot be expelled
Student suffered from ADHD. He was very impulsive and would often act without thinking. He was provoked by another student and responded by hitting him and then running away when confronted by school staff. The school tried to expel him for fighting. The Office of Administrative Hearings ruled that the child responded in the heat of the moment with a punch because of his ADHD and that he could not be punished for conduct that was a result of his disability.
Student v. Southern Kern Unified School District, OAH Case #2017070207 (August 29, 2017)
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Deaf student did not revoke consent to special education by rejecting initial iep and was entitled to an independent Auditory Verbal Therapy assessment at the District’s expense
Family did not agree with the initial IEP. They wrote a letter to the District disagreeing with the IEP and asking for independent educational evaluations at District expense. The District refused to provide the independent educational evaluations. It claimed that when the family rejected the initial IEP that the child was no longer covered by IDEA and not entitled to independent educational evaluations. The Office of Administrative Hearings determined that the family could reject the initial IEP and still exercise their rights to independent educational evaluations as public expense
Student v. Capistrano Unified School District, OAH Case #2014040723 (July 10, 2014)
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Court Orders District to Provide Real Time Captioning for Deaf Student
A federal court judge decided that a high school student would likely prevail on her ADA claim and ordered Poway Unified School District to provide her with CART, a form of real time captioning, for all of her classes at school. D.H. v. Poway Unified School District, U.S. District Court Case #09cv2621 (December 19, 2013)
Private General Education Pre-school
Student was a hearing impaired preschooler that used spoken English as her primary mode of communication. Redlands insisted on putting her into a special day class. OAH determined that the special day class was not the least restrictive environment. Redlands was ordered to reimburse the family the cost of private preschool and told to secure a general education preschool class for the child. Student v. Redands Unified School District, OAH Case #2012060370 (December 24, 2012).
Least Restrictive Environment Required School to Reimburse a Family the Cost of Private General Education Pre-school
Student was a hearing impaired preschooler that used spoken English as her primary mode of communication. Redlands insisted on putting her into a special day class. OAH determined that the special day class was not the least restrictive environment. Redlands was ordered to reimburse the family the cost of private preschool and told to secure a general education preschool class for the child. Student v. Redands Unified School District, OAH Case #2012060370 (December 24, 2012).
IDEA Requires District to Provide Home School Educational Services to Student Outside of District Boundaries
Disabled student that suffers with multiple, complex disabilities, resided within the Los Angeles Unified School District boundaries. During the day she stayed outside of the District and LAUSD refused to provide her with home schooling during the day. OAH Ordered LAUSD to provide her with the home schooling services specified in her IEP even though the teacher had to travel outside of the District. Student v. Los Angeles Unified School District, OAH Case #2011020179 (April 27, 2011).
B.H. v. Manhattan Beach Unified School District, 35 Cal. App. 5th 563 (2019)
(Adoption Assistance Program funding for residential treatment center did constitute “placement” by a non-educational public agency and did not excuse the school district from complying with idea.)
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S.P. v. East Whittier City School District, 735 Fed, Appx. 320 (9th Cir. 2018)
(failure to correctly identify a child’s eligibility resulted in a denial of fape.)
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Luong v. East Side Union High School Dist., 265 F.Supp.3d 1045, (N.D. Cal. 2017)
(Plaintiffs states claims under §504/ada integration mandates entitling them to seek monetary damages.)
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Student v. Templeton Unified School District, OAH Case #2017051280 (December 11, 2017)
District’s Functional Behavioral Assessment was deficient in not comprehensively and validly assessing child’s behavior resulting in a denial of a free appropriate public education.)
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Student v. William S. Hart Union High School District, OAH Case#2017081232 (October 13, 2017)
District’s Functional Behavioral Assessment was (IEP team members must review all relevant information about the child when determining if conduct is a manifestation of the child’s disability.)
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Student v. Southern Kern Unified School District, OAH Case #2017070207 (August 29, 2017)
(hitting another student after being provoked was a manifestation of the child’s adhd so he cannot be expelled.)
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R.F. by Frankel v. Delano Union School Dist., 224 F.Supp.3d 979, 2016 WL 7338597 (2016)
(stay put applies to students who transfer between school years within the same state.)
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K.M. ex rel. Bright v. Tustin Unified School Dist., 78 F. Supp. 3d1289(C.D. Cal. 2015)
where idea claim had to be exhausted in administrative proceeding in order to bring independent but related ada claim, prevailing party on ada claim could recover fees for underlying administrative proceeding.)
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Student v. Capistrano Unified School District, OAH Case #2014040723 (July 10, 2014)
(deaf student did not revoke consent to special education by rejecting initial iep and was entitled to an independent Auditory Verbal Therapy assessment at the District’s expense.)
The ADA, §504 and IDEA impose different obligations on public schools
We were counsel in the nationally groundbreaking case of K.M. v. Tustin Unified School District, 725 F.3d. 1088 (9th Cir. 2013). This case set the standard that ADA requirements regarding deaf and hard-of-hearing students are different than those imposed by IDEA. Compliance with the IDEA does not doom all §504/ADA claims. There are material differences between §504 and Title II of the ADA. This case was covered by the Los Angeles Daily Journal, the Orange County Register and by A.G. Bell.
Private General Education Pre-school
Student was a hearing impaired preschooler that used spoken English as her primary mode of communication. Redlands insisted on putting her into a special day class. OAH determined that the special day class was not the least restrictive environment. Redlands was ordered to reimburse the family the cost of private preschool and told to secure a general education preschool class for the child. Student v. Redands Unified School District, OAH Case #2012060370 (December 24, 2012).
“Stay Put” Applies to Non-Public Agency Services
The Office of Administrative Hearings agreed that the school district improperly terminated the services of the Non-Public Agency, which was providing behavioral support under Student’s IEP. OAH ordered the District to reinstate services with the Non-Public Agency. Student v. Paso Robles Unified School District, OAH Case #2012090342 (February 11, 2013).
Least Restrictive Environment Required School to Reimburse a Family the Cost of Private General Education Pre-school
Student was a hearing impaired preschooler that used spoken English as her primary mode of communication. Redlands insisted on putting her into a special day class. OAH determined that the special day class was not the least restrictive environment. Redlands was ordered to reimburse the family the cost of private preschool and told to secure a general education preschool class for the child. Student v. Redands Unified School District, OAH Case #2012060370 (December 24, 2012).
Student Cannot be Suspended for Defending Himself
Student was being bullied at school. He had no record of discipline and was viewed by his teachers and staff as a cooperative, well behaved kid. He was threatened by several other students and jumped from behind in a restroom. He defended himself, and one of the other kids was seriously injured in the fight. The district tried to expel him for fighting and injuring another student. The law in California does not allow a public school to suspend or expel a student for fighting when in self-defense. The student was allowed to remain in his school and was not expelled.
Luong v. East Side Union High School Dist., 265 F.Supp.3d 1045, (N.D. Cal. 2017)
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Home School Educational Services to Student Outside of District Boundaries
Disabled student that suffers with multiple, complex disabilities, resided within the Los Angeles Unified School District boundaries. During the day she stayed outside of the District and LAUSD refused to provide her with home schooling during the day. OAH Ordered LAUSD to provide her with the home schooling services specified in her IEP even though the teacher had to travel outside of the District. Student v. Los Angeles Unified School District, OAH Case #2011020179 (April 27, 2011).
Learning Disabled Student Needed Placement at Non-Public School
Student was diagnosed with a specific learning disability when she was in the fourth grade. The school gave her an IEP that included resource and allowed teachers to break down her assignments into smaller chunks. Even with the additional help schoolwork was a constant struggle for the child. Her parents knew her as a bright kid with many different interests. Extra tutoring did not help. Over the years she started to feel very badly about herself, growing depressed and withdrawn. Middle school was very difficult because some of her teachers did not seem to care about her IEP and would tell her that she seemed smart, or just had to try harder. We obtained an independent assessment that the school paid for and found out the district’s program did not meet her needs. She had above average intellectual capacity, but processed information very slowly. It took her longer than most to do her work. When she was allowed extra time, she could perform very well with her schoolwork and on tests. We filed for due process and the district agreed to pay for non-public school, where she did very well. The district also paid our attorney’s fees.
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Hard-of-Hearing Student Required Word-for-Word Transcription in Class Instead of a Summary of What Was Said
District was ordered to provide a hearing-impaired high school student with word-for-word real time captioning in class. The District’s offer to provide her with a meaning-for-meaning summary was not adequate and did not provide her with a free appropriate public education. Even though the District appealed the case, the student received word-for-word captioning through her graduation from high school under stay put. Student v. Poway Unified School District, OAH Case #2009070998 (January 29, 2010).
District Evaluation is Inadequate Because it did not Address all Areas of Suspected Disability
District assessment was not appropriate and Student was entitled to an independent educational evaluation. Student showed weakness with memory and focus that suggest ADHD. Nonetheless, the District’s assessments did not address ADHD, nor did they fully assesses Student’s social and emotional status. The District was ordered to pay for an independent psychoeducational evaluation by an assessor selected by Student. Santa Monica Malibu Unified School District v. Student, OAH Case #2009071020 (November 24, 2009).
Child’s Difficulty Working Independently Supported Eligibility For Special Education
Elementary school student struggled to complete homework and could not work independently at his desk at school. District refused to find Student eligible for special education claiming that he had the ability to do the work, but merely lacked the motivation to complete assignments. Federal court judge ruled that Student was eligible for special education because of his specific learning disability and ADHD. M.P. v. Santa Monica Malibu Unified School District, U.S. District Court Case #07cv3393(July 17, 2008).
Failure to Provide Student Records is a Denial of FAPE
Court ruled that a school district's failure to produce school records was a denial of student's right to a free appropriate public education. Student v. Compton Unified School District, Los Angeles County Superior Court, Case #BC363711 (September 19, 2007).
Student Improperly Expelled for Computer Prank
Student was a highly gifted fifth grader. He programmed a classroom computer to shut down and save all data when certain icons were clicked, as a prank. When his classroom teacher found out about the prank, he was questioned by the principal and school police. The student denied any involvement in the prank, at first, but confessed after extensive questioning. He had never been in trouble at school before. He wrote letters of apology to his teachers and his parents disciplined him at home, including making him do community service on the weekends to emphasize that his prank was not acceptable. The school responded by expelling the student, but it did not follow any of the procedures necessary under the law. Parents were forced to place their child in a private school. We were able to compel the school to pay for the cost of the private school and attorney’s fees.
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ASL Interpreter and Note Taker Violates Deaf Student’s Right to FAPE
District ordered to provide CART (computer assisted real time transcription) for deaf student to meet her unique communication needs. District's offer of sign language interpreter and note taker were inadequate because it did not take into consideration that Student's mode of communication was spoken language. Student v. Glendora Unified School District, OAH Case #2006110090 (May 23, 2007).
District Waived Right to Contest Request for IEE and IEP Goals Need to be Clear
District ordered to pay for an independent educational evaluation. District was also found to have violated Student's rights because her IEP goal was not clear and therefore denied parents right to participate in her IEP. Student v. Los Angeles Unified School District, OAH Case #2006120420 (June 20, 2007).
Deaf Student Needed Real Time Captioning to Meet his Need to Participate in Class Discussion
School district denied Student a free appropriate public education because his IEP did not address his need to participate in class discussion. District was ordered to provide the student with CART. Student v. Glendora Unified School District, OAH Case #2007080893 (December 17, 2007).