The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STUDENT vs. SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT

Case No. 13-55665
District Court No. 2:12-cv-03059-SVWPJW

THE DISTRICT COURT HELD THAT THE SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT VIOLATED A STUDENT’S RIGHTS TO A FREE APPROPRIATE PUBLIC EDUCATION WHEN IT CONDUCTED AN IEP MEETING WITHOUT THE PARENTS’ PRESENCE

A. Excluding A Student’s Parents From An IEP Meeting Is A Per Se Denial Of A Free Appropriate Public Education

B. The District Did Not Act “Reasonably” When It Chose To Conduct The IEP Meeting Without Student’s Parents

The 9th Circuit COURT Affirmed the District Court’s Ruling:

The district court properly concluded that the Santa Monica-Malibu Unified School District’s failure to include student’s parents at an IEP meeting was a procedural violation of the IDEA. The IDEA’s implementing regulations require that parents participate in meetings concerning the formulation of an Individualized Education Program (IEP) and the educational placement of their child. See 34 C.F.R. § 300.501(b).

An agency can make a decision without the parents only if it is unable to obtain their participation, which was not the case here. See id. § 300.501(c)(4); Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 317 F.3d 1072, 1078 (9th Cir. 2003) superseded on other grounds by 20 U.S.C. § 1414(d)(1)(B).

The District has not shown that it was required to meet before the end of the 2009-10 school year to formulate an IEP for the 2010-11 school year. Therefore, it was not faced with “the situation of complying with one procedural requirement of the IDEA or another.” Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1046 (9th Cir. 2013).

The district court properly concluded the procedural violation denied student a free appropriate public education in the 2010-11 school year. See Doug C., 720 F.3d at 1044-47; Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001).

“Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA.” Amanda J., 267 F.3d at 892.

Proceeding without the child’s parents cannot be justified by the scheduling unavailability of District employees; the attendance of parents at IEP Team meetings “must take priority over other members’ attendance.” Doug C., 720 F.3d at 1045; see also Shapiro, 317 F.3d at 1078 (holding a school district may not “simply prioritize[] its representatives’ schedules over that of [the] parents”.

Furthermore, even if student’s parents already had decided to enroll their child at Westview School, their exclusion was not permissible. See Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1055 (9th Cir. 2012)

The IDEA, its implementing regulations, and our case law all emphasize the importance of parental involvement and advocacy, even when the parents’ preferences do not align with those of the educational agency.

AFFIRMED

*Legal Fees in the amount of $215,000 were approved by the SMMUSD Board of Education on June 29, 2015.

Before: FISHER, BEA and FRIEDLAND, Circuit Judges.
Appellant’s joint motion to continue deadline for motion requesting attorney’s fees, filed June 25, 2015, is granted. The request for attorney’s fees shall be filed on or before July 29, 2015. See Appellant’s Joint Motion: Document-88

See June 29, 2015 Court Order: document-87

See June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000:

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

DN-1009-14/15 (Special Education)
Legal fees & other related costs: $215,000
It was moved by Mr. Mechur, seconded by Ms. Lieberman, and voted 6/0 (Ms.Leon-Vazquez was absent) to approve the settlement case. Ayes: 6 (Lieberman, Escarce, de la Torre, Foster, Tahvildaran-Jesswein, Mechur)
See the January 20, 2012 OAH decision under OAH No. 2011070262. document-147
See United States District Court Judge Stephen Wilson’s November 28, 2012 Ruling reversing the January 20, 2012 OAH decision under OAH No. 2011070262. document-145

See Parent’s United States Court of Appeals for the Ninth Circuit Brief: Document-47-2

See United States Court of Appeals for the Ninth Circuit Order Affirming the District Court’s Ruling: Document-69

See the Related United States District Court Case under Case No. 2:14-cv-06823-CBM-MRW

DREW BALAGUER, REINA ROBERTS, and MARK BALAGUER v. SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT,

See Case No. 2:14-cv-06823-CBM-MRW Complaint here: document-142

See Plaintiffs’ Case No. 2:14-cv-06823-CBM-MRW Motion To Compel Further Responses here: document-143

“Plaintiffs ask this court to issue an order (3) compelling (a) Dr. Woolverton to respond to questions raised about documents produced by the Defendant which she previously refused to (upon the advice of counsel) to answer of the grounds that such questions sought information protected by attorney-client privilege; and (b) Ms. Keleher to respond to similar questions which she also refused to answer upon the advice of counsel

See Case No. 2:14-cv-06823-CBM-MRW Notice of Settlement here: document-141

DN-1002-15/16 (Special Education)
(postponed from 11/19/15)
Legal fees: $137,500
The total cost for this case is not to exceed $137,500. It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr. Escarce was absent) to approve the settlement case.

For details, go to:

THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT HAS CREATED A TWO-TRACK EDUCATIONAL SYSTEM THAT EXCLUDES MANY STUDENTS WITH DISABILITIES FROM MATRICULATING INTO A FOUR YEAR COLLEGE PROGRAM

https://lawofficesofbarryfagan.wordpress.com/2015/10/19/the-santa-monica-malibu-unified-school-district-has-created-a-two-track-educational-system-that-excludes-many-students-with-disabilities-from-completing-courses-offering-a-to-g-grading-thus-precludin/

The Santa Monica-Malibu Unified School District

Board of Education

SPECIAL EDUCATION SETTLEMENTS

November 2013 to December 2015

Pursuant to Government Code §54956.9(d)(2)

1. DN-1001-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1001-13/14 was as follows:
a) Legal Costs: $16,000
The total cost for this case is not to exceed $16,000. It was moved by Mr. Mechur,
seconded by Mr. Patel, and voted 6/0 (Mr. de la Torre was absent) to approve the
settlement case.

2. DN-1002-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1002-13/14
was as follows:
a) Legal Costs: $14,000
The total cost for this case is not to exceed $14,000. It was moved by Mr. Mechur,
seconded by Mr. Patel, and voted 6/0 (Mr. de la Torre was absent) to approve the
settlement case.

3. DN-1003-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1003-13/14 was as follows:
a) Legal Costs: $6,500
The total cost for this case is not to exceed $6,500.
It was moved by Mr. Mechur, seconded by Mr. Patel, and voted 6/0 (Mr. de la Torre
was absent) to approve the settlement case.

4. DN-1004-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1004-13/14 was as follows:
a) Parent Reimbursement: $38,000
The total cost for this case is not to exceed $38,000. It was moved by Dr. Escarce,
seconded by Mr. de la Torre, and voted 7/0 to approve the settlement case.

5. DN-1006-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1006-13/14 was as follows:
a) Parent Reimbursement: $19,000
The total cost for this case is not to exceed $19,000. It was moved by Ms. Lieberman,
seconded by Mr. Allen, and voted 7/0 to approve the settlement case.

6. DN-1007-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1007-13/14 was as follows:
a) Parent Reimbursement: $13,600
b) Legal Cost: $15,000
The total cost for this case is not to exceed $28,600. It was moved by Mr. Mechur,
seconded by Dr. Escarce, and voted 7/0 to approve the settlement case.

7. DN-1008-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1008-13/14 was as follows:
a) Parent Reimbursement: $60,000
The total cost for this case is not to exceed $60,000. It was moved by Mr. Mechur,
seconded by Dr. Escarce, and voted 7/0 to approve the settlement case.

8. DN-1009-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1009-13/14 was as follows:
a) Legal Cost: $5,500
b) Parent Reimbursement: $7,500
The amended total cost for this case is not to exceed $13,000. It was moved by Mr.
Mechur, seconded by Dr. Escarce, and voted 7/0 to approve the settlement case.

9. DN-1005-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1005-13/14 was as follows:
a) Legal Cost: $5,000
b)Parent Reimbursement: $17,789.48
The total cost for this case is not to exceed$ 22,789.48. It was moved by Dr. Escarce,
seconded by Ms. Lieberman, and voted 7/0 to approve the settlement case.

10. Student vs. SMMUSD, OAH Case No. 2013051152
Administrative Law Judge (ALJ) Eileen M. Cohn, determined on December 23, 2013 that the
SMMUSD must reimburse parents for all of their tuition costs for a Non-Public School (NPS)
along with reimbursement for all tutoring expenses.
These amounts exceed $56,970.99 in tuition reimbursement thus far, and does not include
approx. $70,000 in attorneys fees. This tuition will need to be reimbursed for 3-4 more years as well.

11. DN-1002-14/15 (Special Education)

Legal Fees: $70,000

The total cost for this case is not to exceed $70,000. It was moved by Ms. Lieberman, seconded by Mr. Patel, and voted 7/0 to approve the settlement case.

12. DN-1003-14/15 (Special Education)

Parent Reimbursement: $ 5,000/month (11/1/14 through 7/31/15)

The total cost for this case is not to exceed $45,000. It was moved by Ms. Lieberman, seconded by Dr. Tahvildaran-Jesswein, and voted 5/0 (Dr. Escarcewas absent) to approve the settlement case.

13. DN-1004-14/15 (Special Education)

Educational Evaluation Services: $11,485

Legal Fees: $TBD as per OAH Case No. 2014040578

It was moved by Ms. Lieberman, seconded by Dr. Tahvildaran-Jesswein, and voted 5/0 (Dr. Escarce was absent) to approve the settlement case.

14. DN-1005-14/15 (Special Education)

Parent Reimbursement: $2,200/month during school year (through 2019-2020 or whenever the student graduates from high school, whichever comes first) It was moved by Ms. Lieberman, seconded by Mr. Mechur, and voted 6/0 (Mr. de la Torre was absent) to approve the settlement case.

15. DN-1006-14/15 (Special Education)

Parent reimbursement (legal fees & other related costs): $9,000
The total cost for this case is not to exceed $9,000
It was moved by Mr. Mechur, seconded by Ms. Lieberman, and voted 6/0 (Ms. Leon-Vazquez was absent) to approve the settlement case.

16. DN-1007-14/15 (Special Education)

Parent Reimbursement (educational placement & services): $55,000
The total cost for this case is not to exceed $55,000. It was moved by Dr. Tahvildaran-Jesswein, seconded by Mr. Foster, and voted 6/0(Ms. Leon-Vazquez was absent) to approve the settlement case.

17. See June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000:

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

DN-1009-14/15 (Special Education)
Legal fees & other related costs: $215,000
It was moved by Mr. Mechur, seconded by Ms. Lieberman, and voted 6/0 (Ms.Leon-Vazquez was absent) to approve the settlement case. Ayes: 6 (Lieberman, Escarce, de la Torre, Foster, Tahvildaran-Jesswein, Mechur)
September 2, 2015

18. DN-1001-15/16 (Special Education)

Attorney fees: $26,000
The total cost for this case is not to exceed $26,000. It was moved by Mr. De la Torre, seconded byMs. Leon-Vazquez, and voted 7/0 to approve the settlement case. Ayes: 7
October 1, 2015
19. DN-1002-15/16 (Special Education) TBD

20. DN-1003-15/16 (Special Education)
Legal fees $5,000
21. DN-1004-15/16 (Special Education)
Parent reimbursement: $6,000
22. DN-1005-15/16 (Special Education)
Parent reimbursement: $6,000
October 15, 2015

23. DN-1006-15/16 (Special Education) TBD

December 10, 2015
24. DN-1002-15/16 (Special Education)
(postponed from 11/19/15)
Legal fees: $137,500
The total cost for this case is not to exceed $137,500. It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr. Escarce was absent) to approve the settlement case.
25. DN-1007-15/16 (Special Education)
Parent reimbursement: $16,920
Legal fees: $4,410
The total cost for this case is not to exceed $21,330.
It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr. Escarce was absent) to approve the settlement case. Ayes: 6 (Lieberman, de la Torre, Leon- Vazquez, Foster, Tahvildaran-Jesswein, Mechur)
26. DN-1008-15/16 (Special Education)
Parent reimbursement: $18,500
Legal fees: $24,000
The total cost for this case is not to exceed $42,500.
It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr.
Escarce was absent) to approve the settlement case.

Below is how the Santa Monica-Malibu Unified School District treats some of its Special Education families.

See link to Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School Disrict’s Retaliatory Acts Against Students and Parents by filing false claims of child abuse with the Department of Children and Family Services:

http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/

SMMUSD vs. Student

By Debra Shepherd

Good evening Council members. I am the parent of a child in general education and a child who requires special education services. I am also a member of the Working Group.

Although the non-disclosure agreements are no longer being used to my knowledge, the environment that brought about the use of those agreements still exists.

When a problem arises, there does not seem to be an ability to resolve the problem without input from the attorneys. Since November of 2008, the District has been more adversarial toward my family by threatening me with due process litigation at tax payers’ expense. The SMMUSD refuses to even acknowledge that my daughter has an autism spectrum disorder despite multiple pages of detailed assessments from UCLA in a school setting that have been a part of my child’s records for the last 4 years.

The District is also attempting to take needed services and accommodations out of my child’s educational program. I had to fight for two years for my daughter to receive occupational therapy services.

My extended family has also traveled thousands of miles to help me with these issues. The SMMUSD would rather spend thousands of tax payer dollars suing me than pay for a needed assessment for my child or provide her with a free and appropriate education as mandated by law.

I thought that we had reached our lowest point in the journey when school staff filed a false report against me with child services in retaliation against me for hiring an attorney. My youngest child is still not recovered from the trauma of that incident. I am also disturbed by the number of families of color that have left the district. When families of color complain about how they are treated by the district, their address is verified. This whole situation has taken a toll on my health and the well-being of my family.

See links to other litigation relating to other SMMUSD Retaliatory Acts:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

See link to Malibu Times Article Entitled “School Woes”

http://www.malibutimes.com/opinion/article_37232886-0af6-11e5-9805-c79129c3012e.html

See SMMUSD District Parent’s comment:

beachshopgirl posted at 12:07 pm on Mon, Jun 8, 2015.

The SMMUSD has an inordinate amount of due process cases (16 this school term). That would be the norm for a district five times this size. If they go that hard against the parents of children with disabilities that should tell everyone else something. The District will never stop fighting this lawsuit from all indications, regardless of the insane conclusion that is bound to occur. It’s pathetic that they are willing to burn down the village in an effort to avoid repairing it. It’s time for a new Board of Education, a new Superintendent and a new Director of Special Education Services. We need people in leadership that understand that tax dollars are not monopoly money and that this is not a private parts measuring contest.

The SMMUSD’s Adversarial Posturing is Costing the SMMUSD Hundreds of Thousands of Dollars and Causing Unnecessary Harm to These Special Education Families.

Advertisements

37 thoughts on “The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence

  1. Pingback: My Blog

Comments are closed.