OC Families Face Fierce Fight for Special Ed Services

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First in a three-part series. Read parts two and three.

In the autumn of 2003 with apprehension running high, Carlos, an autistic youngster from a broken home, arrived for the second grade at Garden Grove’s Cook Elementary School.

Alexis Baquerizo, Carlos’ aunt and at the time his newly named guardian, knew he would face difficult challenges. But the reality of obtaining special education for her nephew was worse than even she imagined.

His first teacher inappropriately labeled him as “retarded,” saying he probably would never be able to add or subtract. The teacher’s harsh words only made Baquerizo work harder with Carlos’ home lessons.

Before the end of that year, Carlos had won mathematics contests for his second grade class, besting about 20 students who didn’t face his challenges.

Today after years of special services, a significant amount of which Baquerizo had to pay for out of her own pocket, Carlos excels at college level algebra.

But instead of accolades, Baquerizo says she earned the ire of Garden Grove Unified School District officials, who have for a decade fought her attempts to have all of the services, which are required under state and federal laws, to be paid for by the district.

At one point, Baquerizo said, she learned from teachers that a top administrator reportedly threatened to break her financially and emotionally to drive her out of Garden Grove so the district wouldn’t have to provide Carlos’ special education services. The district denied the allegation, but it was supported by some school staff in legal testimony.

The result has been a series of costly legal skirmishes in state hearings and federal courts that continue to this day. And Carlos’ case is just one of a number of instances where hard-line stances by Orange County school districts have led to expensive conflicts with families of special-needs children.

Garden Grove Unified officials declined to discuss Carlos’ case, citing privacy and legal restrictions, which often keep such disputes out of the public eye.

The Rights and Costs of Special-Needs Children

Under the federal Individuals with Disabilities Education Act [IDEA] and state law, districts are required to provide a free appropriate public education to youths with disabilities from birth to 21 years of age. And though districts and families are often at odds over what assistance is needed, it can include specialized instruction; daily or weekly speech, occupational or psychological therapies; or special schools for those with severe emotional issues.

The cost of providing these services can easily spiral, with districts spending tens of millions of dollars a year on special education, depending on the number of eligible students. District general funds are also tapped to augment state and federal dollars, which for years have not kept pace with needs.

But even when taking these realities into account, special education experts say resistance to paying for services is so ingrained among school districts that they will spend hundreds of thousands of taxpayer dollars on attorney fees — amounts that in some cases dwarf the costs of the services sought — to deny or not reimburse families for the educational needs.

And though special education disputes are common throughout California and the nation, family attorneys and special education advocates say district legal resistance in Orange County is among the fiercest in the country.

“There is room for problem solving and compromise” when districts seek a balance, said Irvine-based Maureen Graves, a family attorney and founder of the California Association for Parent-Child Advocates.

“When school districts become obsessed with defending their original instructional plans, discrediting families and keeping parents in the dark, disputes escalate. Schools and families suffer,” she said.

Graves and other advocates say districts direct streams of funds to a small cadre of attorneys to fight families seeking special education services, which vary from tests costing a few thousand dollars to individual class aides to residential placement in highly sophisticated, out-of-state facilities.

Additionally, some local districts, including Garden Grove Unified, have refused to publicly disclose the costs, which an open-government expert says is a violation of state law.

Given that Baquerizo estimates her legal bills over the past five years alone were about $350,000, the district’s are likely far higher. The most recent battle was over about $14,000 in services annually and prior skirmishes have topped $50,000 in annual costs.

Carlos’ case is one an example of this pervasive war of wills between families and districts. Others include:

  • Los Alamitos Unified School District accumulated $783,000 in legal bills as the district fought to prevent a Spanish-speaking family from videotaping a school education planning session so the mother could better understand discussions, district records show.
  • Orange Unified School District in June lost a costly case in federal court after it sued a family of an autistic child in an attempt to avoid paying for a private-school program. The district sued in 2011 after a state administrative hearing decision approved the requested services, with the federal court noting the district repeatedly improperly developed an educational plan. On Aug. 6, a federal judge ordered Orange Unified to pay $153,000 for the services of Bruce Bothwell, the family’s Long Beach-based attorney. However, the district refuses to reveal how much it paid its attorneys for the case. There also is no record that the school district’s elected board publicly voted on filing the lawsuit, which authorities say is possibly a violation of state law.
  • In a Capistrano Unified School District case that ended earlier this year, the district was ordered to pay $117,000 of the family’s legal bills along with $20,000 of reimbursement for services. But the family was denied reimbursement for about $100,000 in other services and more on unreimbursed legal fees. Capistrano Unified spent at least $238,000 for its attorney in the case, according to records released by the district.

Trustees Often in the Dark

A Voice of OC survey of Orange County cases from tony enclaves to working-class neighborhoods shows school districts repeatedly follow such courses, often with little follow-up oversight by elected trustees.

Noting Orange County cases prompt her at times to “groan,” Marcy J.K. Tiffany, a Torrance-based attorney for families, said: “Districts always push back there. At times, you scratch your head and wonder if there is any adult supervision.”

Superintendents appear to try to “save face,” she added, by using district funds for legal fees to “defend their reputations.”

Marc Ecker, superintendent of the Fountain Valley Unified School District, complained in an interview that families with disabled children use the federal law “to hold the districts hostage” to win services.

When questions are raised about school district stances on special education, Ecker has said in interviews: “No good deed goes unpunished.”

Such comments prompt families and even some school trustees to note that the resistance is similar to objections to racially integrate American schools. Indeed, Los Alamitos Unified in the videotape case hired an Atlanta law firm that touted aiding 100 school districts in civil rights battles.

Among those who recognized the correlation was Ginny Fay Aitkens, a trustee at Saddleback Valley Unified School District in Mission Viejo.

“I understand where the parents are coming from.” Aitkens said. “It would be fabulous if the system was not so confrontational. This does need a solution.”

George West, president of the Garden Grove Unified board and dean of education at the Christian Hope International University in Fullerton, took issue with Ecker’s comment.

“I would never use the term ‘holding the district hostage,’ ” West said. “Parents want the very best, and we want the district to do the best. But we don’t always agree with what the process should be.”

The issue could come into play in a lawsuit filed earlier this year in U.S. District Court in Sacramento.

Parent associations sued the California Department of Education for allegedly turning a blind eye to what they see as widespread school district violations of state and federal law for free and appropriate education. Discrimination against minority groups also is alleged. State officials declined comment, but they denied such allegations in court filings.

When Roni Sagy, the San Francisco-based lead attorney for the families, heard descriptions of Orange County events, she said, “It’s worse than I thought.” She plans to review Orange County cases.

Superintendents and school board trustees continue to point to their increasingly tight budgets to explain their confrontational attitude for access to special education services.

For instance, Garden Grove Unified officials say direct costs for 5,015 special education students was $62.6 million for the 2010-11 school year. Special education expenditures included nearly $13 million in general funds from an overall budget of $458 million, officials added.

State reports show that nine of the county’s 28 school districts — 143 statewide — are facing financial insolvency. These include Garden Grove and Capistrano Unified.

In Saddleback Valley, officials say the district last school year had 3,355 special education students with direct costs budgeted at $46 million, of which $15 million was from district general funds.

Desperate for funds, Saddleback Valley trustee Ginny Fay Aitkins has proposed a tax increase. “I get stone silence,” she said. “It all boils down to special education becoming a ludicrously expensive proposition.”

While district trustees can’t avoid overall budget issues, interviews show elected officials often know little about the legal expenditures to fight families seeking services.

In Garden Grove Unified, West, the board president, said he could not recall any report on legal costs of Carlos’ case in his four years as a trustee. Neither could two other trustees who served during the last two years.

Carlos’ case only grabbed the board’s attention last December, when a group of parents came to a meeting to complain.

High-Priced Lawyers, Possible Brown Act Violations

Legally, a public agency like a school board may discuss lawsuit strategy and decisions in closed session, but state law requires a board to approve a lawsuit, with that action being recorded in publicly available meeting board minutes.

There are no public minutes reflecting Orange Unified’s lawsuit against the autistic boy, known only as C.K. in court documents, said an attorney for the school board. Orange Unified board President Timothy L. Surridge refused to comment.

In the Los Alamitos Unified videotaping case, the district engaged Charles L. Weatherly Sr., an Atlanta attorney known nationally for high billings.

For 2006, district records show he billed the school district $585,000. When an Orange County legal firm’s costs were added in, records show the total billed in the end last year hit $783,000.

Los Alamitos’ trustees were informed of the rising legal costs, recalled board President Meg Cutuli, who served during the litigation.

“It was a very difficult decision to go forward,” she said, hinting the family had other issues she couldn’t discuss for legal reasons. “I hate to say we won, as we did in federal court. Is it a true victory?”

With her district seeking a better “working philosophy” for such cases, Cutuli said, she “is really bothered” that the federal government has never paid the full amount it promised, thereby saddling districts with costs.

In Saddleback Valley, Aitkins said that during the last school year, this translated  to a dozen instances where the district squared off in a state administrative hearing against a family over special services.

There were settlements in eight cases before a hearing. Three went to hearings where the district won. In the fourth both sides prevailed on aspects of the dispute, she said.

Attorneys representing families point to such hearings as an example of divisive stances by the school districts. Each case produces legal bills for the school district. Families are forced to foot their own legal tab, often without a chance of recovery.

Poita A. Cernius, a parent in the Newport-Mesa Unified School District, said her decades-long fight for services for her now 17-year-old autistic son taught her a telling lesson.

“It all depends on who is at the top,” said Cernius. “He or she sets the tone. Some officials in charge of special education have been evil, others good.”

When her son was 3, the district attempted to avoid paying for special education, blaming his developmental issues on a brain tumor the child had survived. In a legal fight, she said, she and her husband, both corporate attorneys, uncovered school district documents showing specialists had attributed his educational handicaps to autism.

The family won the services it was seeking, but it cost them about $30,000 in legal fees.

“We understand there are limited funds for these types of kids,” Cernius said. “But the district was wasting money by fighting and not talking. We always have been willing to share in the cost. But they would take a hard-line approach, slam you, stonewall you, and lie and cheat, hoping you’d break down.”

Newport-Mesa officials did not return repeated calls for comment.

A Need to Speak Out

Because families with active legal cases still have children in the districts, many declined interviews.

“People are gun-shy,” said Cernius. “They are afraid of being stomped on by the district.” Even some attorneys declined interviews, fearful of judicial attacks.

Baquerizo, however, said she opted to speak to show other families how services have helped Carlos. The family and district have been through a bewildering array of proceedings, from five state administrative hearings to multiple federal court cases.

Last October, the family won a vital legal battle when Garden Grove Unified attorneys unsuccessfully appealed to the U.S. Supreme Court.

In that case, the U.S. Ninth Circuit Court of Appeals in San Francisco ruled Garden Grove Unified had to reimburse the family for services at a nonpublic facility.

The earlier, precedent-setting decision means students throughout California and eight other Western states should have easier access to certain private programs.

Yet Garden Grove Unified continues to fight over reimbursement for nonpublic services Carlos received in other years.

In July, the district prevailed in a state administrative hearing, with an administrative judge rejecting reimbursement for such services. Baquerizo again went to federal court.

Garden Grove Unified is trying to force Carlos into a school program the family says is inappropriate and more costly. The classes have students with more severe disabilities, they say, and costs are $42,000 a year, three times the cost of the program he is attending.

“It is insane,” said Baquerizo. “All this because of Carlos’ desire to learn.”

Please contact Rex Dalton directly at rexdalton@aol.com

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