A ‘Brotherhood’ Fights Families Wanting Special Ed

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Part two of three parts. Read part one here and part three here.

Entering federal court in 2008 to fight for special education for her autistic nephew, Alexis Baquerizo knew she was facing an entrenched, deep-pocketed foe, the Garden Grove Unified School District.

Still she was stunned to learn in 2010 that every public school district in Orange County had aligned against them, using taxpayer money to oppose Carlos.

An obscure but powerful public agency agreed to pay attorney fees in part and deploy its considerable political clout to help Garden Grove Unified, which had fought Baquerizo since 2003.

The agency is the Orange County Special Education Alliance, so little known that even some school district trustees had never heard of it. It is a joint powers authority similar to a water or a fire protection district.

But the alliance takes things a step further, according to interviews and documents. It fights families seeking special education services under state and federal laws. Such an agency is so rare that state that national leaders in the special education field said San Diego is the only place with a similar organization. San Diego’s, they said, is far less active.

“I’d never heard the name,” said Baquerizo, recalling when her attorney told her the alliance chipped in $10,000 to help Garden Grove appeal a federal lawsuit Carlos was winning.

The alliance was branded “a slush fund to batter kids” by Brian Allen, a child advocate who has practice in Orange County for more than a decade. He is among those who have alleged the alliance violated the state’s open meetings law.

Marc Ecker, longtime superintendent of the Fountain Valley Unified School District who chairs the alliance, said the organization has not violated any laws and generally denies allegations like the one leveled by Allen.

‘A Brotherhood’

Formed by superintendents of the county’s 28 school districts, the alliance grew from deep resistance to the federal Individuals with Disabilities Education Act, which is intended to help students with various developmental handicaps receive a free and appropriate public education.

Because the federal government never lived up to its original goal for funding special education, school districts became increasingly alarmed as they spent more general fund dollars to meet growing family requests for assistance.

When launching the alliance in 2005, one superintendent in a Los Angeles Times article called the alliance “a brotherhood.” Another superintendent claimed they were “getting clobbered” by families, who felt school districts were like a “goose laying the golden egg” to be tapped at will.

Today, Ecker describes the agency’s goals as aiding districts with legal costs, professional development training for district staffs and lobbying of state and federal officials either for more money or changes in law.

In particular, the lobbying efforts are for “relieving districts of onerous requirements for serving children with special education needs,” said Ecker.

The alliance also uses top-notch professionals to train community advisory committees, which are required by state law to reduce strife between school district officials and families.

But even this aspect of the alliance’s mission has generated controversy.

While these committees can and do provide some assistance, interviews show they also can struggle to meet the challenge. Their memberships can be politicized, for instance, by those appointed, who then pay lip service to resolution efforts, say families.

For example, a trustee praised the committee in the Newport-Mesa Unified School District as substantially effective, but Poita A. Cernius, a parent who has dealt with the committee for 14 years, called it “a squawk box for district administrators.”

Newport-Mesa Unified’s committee didn’t respond to interview requests.

How the Alliance Operates

The alliance meets infrequently and irregularly at the Orange County Department of Education building in Costa Mesa. For a quorum, it needs but three superintendents from the 28 districts, who are joined by school district defense attorneys and other school officials.

Ronald D. Wenkart, general counsel for the county education department, and Lysa M. Saltzman, an attorney in Wenkart’s office, have aided the alliance. As staff,the alliance funds a single consultant, who officials said keeps some of the organization’s records at her home.

Each Orange County school district typically is assessed 20 and 50 cents per student per year to fund the alliance’s operations. The annual assessment, however, isn’t always levied. This year the alliance has approximately $425,000 on hand, according to documents.

In its effort, the alliance helps districts fight families with children with issues that include developmental disorders like autism, traumatic brain injuries and disabled foster children being aided by guardians. In any given year, the alliance might by helping defend against up to five lawsuits.

The largest single category in the alliance’s annual budget is for litigation support for districts, budgeted this year for at least $75,000. The agency’s lobbyist costs $12,000. The alliance projects expenditures of $200,000 in 2012.

In every case, reports show, the alliance took a position against a family rather than supporting one.

Beyond its efforts locally, the alliance has sought to aid the filing friend-of-the-court or amicus curiae briefs with the U.S. 9th Circuit Court of Appeals in San Francisco. It specifically selects cases that might win precedent-setting rulings in favor of school districts.

Among the cases the alliance has joined are:

  • In 2010, records show the Alliance paid half of Brea Olinda Unified School District’s $22,000 in legal bills when it successfully sued a family in U.S. District Court in Santa Ana to overturn a state administrative hearing decision continuing their child’s special education. The family wanted to ensure that the child was protected to continue to receive services like occupational therapy for his attention deficit disorder issues, but the district objected. The case was eventually settled privately.
  • In 2009, the alliance contributed $5,000 to a joint effort by Newport-Mesa Unified and the county Department of Education to avoid paying to place a foster child in an expensive, out-of-state specialized facility. Under California law, the district where a family resides typically would be responsible for the service, which could run to $100,000 a year. But Newport-Mesa and the county fought over the legal definition of who was the “responsible adult” in an effort to shift the cost of care to the state.
  • In an important appellate decision, the alliance contributed $22,500 in 2007 to Saddleback Valley Unified School District for a case that limited how much families can collect for attorney fees when they accept certain settlement offers.

“It really screws parents over,” said Bonnie Z. Yates, a Los Angeles attorney who represented a family seeking about $24,000 for attorney fees. Questions of law on complex issues involving such settlement offers remain undecided, she said.

But alliance and school district officials far beyond Mission Viejo were happy, because the case put them in a stronger position during settlement discussions held before a state administrative hearing is convened.

The alliance review committee, which decides what cases the organization takes up, includes S. Daniel Harbottle, a Costa Mesa attorney who represents school districts in some of the cases the alliance supports. Harbottle’s law group represents at least nine districts in the county.

But how much his group is paid isn’t known, because Harbottle and a county education department attorney have advised school districts that they need not disclose payments, even years after individual legal actions were completed.

Terry Francke, one of California’s preeminent experts regarding public records and Voice of OC’s open-government consultant, says such costs should be disclosed.

Harbottle declined to respond to interview requests.

‘They Threw Me Out’

Trustees from various school boards, particularly those elected in recent years, often are unaware that the alliance exists or that districts are funding it.

When Voice of OC described the alliance to Bao Nguyen, a Garden Grove trustee appointed in June 2011, he said, “That doesn’t sound right.”

Nguyen, who is running for election in November, expressed concern about the issue but stopped responding to interview requests. That stance is now taken by other Garden Grove trustees and those from other districts that are represented by Harbottle.

Katrina Foley, a former Costa Mesa city councilwoman elected to the Newport-Mesa board in 2010, also was unaware of the alliance until interviewed.

When asked how much her district pays to the alliance, Foley said, “I’m taking notes to ask.”

Initially, Foley and Newport-Mesa staff participated in interviews and provided information. But then she and other administrators, including district spokeswoman Laura Bush, refused to respond. Harbottle represents Newport-Mesa.

In its early years, the alliance was accused of violating state open meeting laws during its legal strategy sessions, according to interviews and agency minutes.

Frequent complaints were made by Ronald Lackey, a Dana Point educational psychologist, former school administrator, and child advocate who was active for years in efforts to resolve conflicts between districts and families.

“He looked at our effort as an illegal act,” recalled Ecker. “He said we were collaborating in a conspiracy against children with handicapped needs; that our effort was to circumvent the law. He couldn’t understand where we were coming from; he opposed all we did.”

Lackey couldn’t be reached, but Allen, his former partner in child advocacy, confirmed Lackey’s actions. Alliance minutes reflect Lackey’s continued objections at various meetings. Attorneys like Tania L. Whiteleather of Lakewood recalled how Lackey battled the alliance for years.

Allen said Lackey believed “the alliance was having secret meetings.” Alliance minutes show its leaders ignored Lackey.

At same time, Lackey also complained at Capistrano Unified School District meetings about its treatment of special education children. Capistrano Unified was the ideological crucible from which the alliance was born, according to both the alliance and school districts.

Thus Lackey’s objections regarding special education served as the catalyst for school board actions that eventually led to controversies that consumed the district for several years. The Orange County district attorney’s office probed alleged illegal meetings, trustee recalls and the departure of James Fleming, then superintendent of the district and credited by alliance officials with creating the organization.

Whiteleather, who represents families seeking special education from districts, said that at least five years ago she was kicked out of an alliance meeting after alleging that board members were violating the state’s open meetings law by including lawyers in the discussion of a case in which they had no direct involvement.

Whiteleather said, “They threw me out” and continued their discussion behind closed doors.

Please contact Rex Dalton directly at rexdalton@aol.com

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