The Santa Monica Malibu Unified School District Intentionally Discriminated Against its Disabled Students and Willfully Ignored Their “Child Find” Obligations in Violation of Section 504, ADA, and UNRUH Civil Rights Act

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

Case No. 2:15-cv-09339-RSWLDTB

Liz Soto, Dan Chapman, Tab Chapman vs. Santa Monica-Malibu Unified School District

Complaint for Intentional Discrimination and Willfully Ignoring “Child Find Obligations” in Violation of Section 504, ADA, and UNRUH Civil Rights Act

The Santa Monica Malibu Unified School District has a demonstrated policy of intentional discrimination and deliberate indifference when it comes to educating students with known disabilities.

The Santa Monica Unified School District (SMMUSD) officials had policies of inaction that resulted in failures to provide adequate procedural safeguards and failure to train their staff.

The SMMUSD’s failure to execute its “child find” duty and evaluation obligations under Section 504 constituted intentional discrimination in that their failure to act was not just negligent; it was a deliberate choice to not act evidencing discriminatory intent.

That SMMUSD acted with deliberate indifference as shown by the facts that the SMMUSD had knowledge of facts tending to establish that Student had a suspected disability:

1) The SMMUSD had knowledge from which an inference could be drawn that a harm to Student’s federally protected right to be identified and evaluated under Section 504 was substantially likely to occur, and

2) The SMMUSD failed to act upon that likelihood when they refused to evaluate Student. These policies included failure to adequately and properly train school staff regarding compliance with their mandatory duties.

Through the policies of the Santa Monica Malibu Unified School District, the SMMUSD exhibited a deliberate indifference to the foreseeable consequences of the violations, including the foreseeable consequence of abuse of students with disabilities.

As a direct and proximate result of the Santa Monica Malibu Unified School District’s violations of law, Plaintiffs suffered out-of-pocket expenses and mental and emotional distress.

See JD Supra article:

http://www.jdsupra.com/legalnews/complaint-for-intentional-discrimination-94039/

See pdf copy of Complaint:

STUDENT vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT RE VIOLATIONS SECTION 504 THE ADA AND UNRUH ACT

See Notice of Settlement:

STUDENT vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT RE STIPULATED SETTLEMENT

Other Santa Monica Malibu Unified School District Intentional Discrimination Cases:

1. STUDENT vs. MARK KELLY & THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

Re: Disability Discrimination

Plaintiffs allege that Mark Kelly’s conduct in baiting student was so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency,”.

Mark Kelly’s knowledge that Student is peculiarly susceptible to emotional distress by reason of some physical or mental condition rises to both extreme and outrageous conduct.” (“eggshell plaintiff” principle)

Some students may have vulnerabilities which necessitate a greater degree of caution on the part of school districts and their employees. In M.W. v. Panama Buena Vista Union School Dist.

Abuse of Power

The extreme and outrageous conduct may take place in the course of a relationship in which the defendant holds authority or other power over the plaintiff or the plaintiff’s interests.

If the authority — such as police officers, school authorities, landlords, and collecting creditor — abuse their positions in some extreme manner, they may be liable to the plaintiff for IIED.

A Public Record Act request has been served upon the SMMUSD to receive the Debra Reilly “investigation Report” concerning the two UCP Compliance Complaints against the SMMUSD, and Assistant Superintendent Mark Kelly.
Complaints and/or charges of misconduct against a public employee can/must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)

2. Student v Santa Monica Malibu Unified School District:

9th Circuit Court of Appeals Case No. 13-55665

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

For details of this SMMUSD litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/06/04/student-vs-santa-monica-malibu-unified-school-district-re-the-santa-monica-malibu-unified-school-district-did-not-act-reasonably-when-it-chose-to-conduct-an-iep-meeting-without-pa/

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

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

3. 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/

4. PROFESSOR MICHAEL CHWE vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

Verified Petition for Writ of Mandate Directed to Santa Monica Malibu Unified School District Ordering Compliance with the California Public Records Act

MICHAEL CHWE vs. SMMUSD RE WRIT OF MANDATE COMPLAINT

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

MICHAEL CHWE vs SMMUSD RE APPEALS COURT PUBLISHED OPINION

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102

Public Record Act requests for employee disciplinary records, investigative reports and/or complaints or charges of misconduct against public employees must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)

FFF_CA Public Records_V11

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 inattorneys 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:

Student v Wendy Wax Gellis & Santa  Monica Malibu Unified School District:

This lawsuit alleges that the SMMUSD and Wendy Wax Gellis are criminally liable for violations of California Penal Code § 11166 and 11172(a) et seq. for filing a knowingly false child abuse report with child services and the police.

Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School District’s Retaliatory Acts Against Students and Parents by Filing False Claims of Child Abuse with the Department of Children & Family Services.

See link to News Article here:http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/

The lawsuit alleges that an example of retaliatory action by the SMMUSD and Wendy Wax Gellis taken against this family includes knowingly and maliciously filing a false child rape and domestic violence allegation with the local law enforcement and with the Los Angeles County Department of Children and Family Services (DCFS) in retaliation for parent’s exercise of their federally protected right to bring claims against the SMMUSD before the United States Department of Education’s Office for Civil Rights (OCR).

The family alleges that on December 18, 2013, SMMUSD employee named Wendy Wax Gellis made a knowingly false referral to the Los Angeles Department of Children and Family Services (DCFS), and to local law enforcement that parent raped her own son. The allegations were determined by all investigating agencies to be unfounded.

For details of this pending Federal lawsuit go to:

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.

The Santa Monica-Malibu Unified School District’s Superintendent Sandra Lyon should be fired for not adequately protecting the School District’s students from all of this continuing harm.

For details, go to:

It’s time to fire Superintendent Sandra Lyon

https://lawofficesofbarryfagan.wordpress.com/2015/07/04/it-is-time-to-fire-the-santa-monica-malibu-unified-school-districts-superintendent-sandra-lyon/

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org

 

 

 

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