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Case 2:11-cv-03471-KJM-EFB Document 1-1

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Case 2:11-cv-03471-KJM-EFB Document 1

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Rony Sagy (State Bar No. 112219)


1 Sagy Law Associates
930 Montgomery Street Suite 600
2 San Francisco CA 94133
rony.sagy@sagylaw.com
3 Tel: 415-986-0900
Fax: 415-956-3950
4
Stephen A. Rosenbaum (State Bar No. 98634)
5 1716 Milvia Street
Berkeley, CA 94709
6 srosenbaum@law.berkeley.edu
Tel: 510-644-3971
7
Attorneys for Plaintiff
8 MORGAN HILL CONCERNED PARENTS ASSOCIATION
9
UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11

SACRAMENTO DIVISION

12
13
14

MORGAN HILL CONCERNED


PARENTS ASSOCIATION, an
unincorporated association,

15

18

COMPLAINT FOR DECLARATORY AND


INJUNCTIVE RELIEF

Plaintiff,
Jury Trial Requested

16
17

CASE NO.

v.
CALIFORNIA DEPARTMENT OF
EDUCATION, and DOES 1 through 5,
Defendants.

19
20
21

Plaintiff MORGAN HILL CONCERNED PARENTS ASSOCIATION, an unincorporated

22 association of parents of children with disabilities in the Morgan Hill Unified School District,
23 alleges as follows:
JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT

24
25

1.

This Court has jurisdiction over the subject matter and the parties pursuant to: (a)

26 20 U.S.C. 1415(i)(ii) as the claims are asserted under the Individuals with Disabilities
27 Improvement Education Act (IDEA); and (b) 28 U.S.C. 1331 and 1367 as the claims are
28
SAGY LAW
ASSOCIATES

COMPLAINT

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1 asserted under the laws of the United States.


2

2.

Venue is proper pursuant to 28 U.S.C. 1391(b) as Defendant California

3 Department of Education resides in this judicial district and a substantial part of the events or
4 omissions giving rise to the claims occurred in this judicial district. This action is filed in the
5 Sacramento Division of this District pursuant to Local Rule 120(d) as the events underlying these
6 claims principally arose in the County of Sacramento.
7

3.

This Court is the only forum for redress of the California Department of

8 Educations failure to monitor, investigate and enforce the laws designed to provide children with
9 disabilities a free appropriate public education (FAPE) in the least restrictive environment
10 (LRE). (For ease of reference, the term FAPE generally refers to both the FAPE obligation and
11 the LRE obligation.) Because Plaintiffs complaint alleges systematic failures by the California
12 Department of Education to comply with the mandates of IDEA and other laws designed to
13 protect children with disabilities, there is no need for the participation of individual students nor
14 is the statutory administrative remedial process empowered to provide the relief Plaintiff seeks.
THE PARTIES

15
16

A.

THE PLAINTIFF

17

4.

Plaintiff Morgan Hill Concerned Parents Association (Concerned Parents or

18 Plaintiff) is an unincorporated association of parents of children with disabilities in the Morgan


19 Hill Unified School District (MHUSD, Morgan Hill or District) formed to ensure and
20 protect the legal rights of these children to receive a free appropriate public education in the least
21 restrictive environment. Members of Concerned Parents are parents of children with disabilities
22 and largely reside within the County of Santa Clara in the State of California.
23

B.

THE DEFENDANTS

24

5.

Defendant California Department of Education (CDE) is the governmental entity

25 created and mandated to oversee the operation of public schools in the State of California and is
26 the state educational agency (SEA) established to oversee and ensure the provision of special
27 education services to children with disabilities in California pursuant to the Individuals with
28 Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq. Defendant CDEs
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ASSOCIATES

COMPLAINT

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1 offices are located at 1430 N Street in the City of Sacramento, County of Sacramento, State of
2 California.
3

6.

Defendant CDE knew, or should have known had it fulfilled its statutory

4 monitoring and investigation obligations, that the Morgan Hill Unified School District has
5 systemically failed to provide FAPE to all eligible children with disabilities as required under
6 federal and state laws.
7

7.

Plaintiff is unaware of the true names, status, capacities, whether individual,

8 corporate, associate, or otherwise, of Defendants sued herein as Does 1 through 5, inclusive, and
9 therefore sues these Defendants by such fictitious names. Plaintiff will amend the Complaint to
10 allege the true names and capacities when ascertained. Plaintiff is informed and believes that at
11 all times herein mentioned, each of the fictitiously named Defendants was in some manner
12 responsible for Plaintiffs damages and injuries alleged herein. In performing each of the acts
13 alleged below, or in failing to perform the acts as alleged below, each Defendant acted jointly or
14 individually as agents for each and for all other Defendants. The injuries inflicted upon Plaintiff
15 occurred because of the actions and omissions of each and all of the Defendants.
PRELIMINARY STATEMENT

16
17

8.

Defendant California Department of Education has the obligation to provide to

18 every eligible child with a disability within the State of California, including MHUSD students, a
19 free appropriate public education in the least restrictive environment under the IDEA. CDE has
20 systematically failed to comply with its obligations under federal and state law. By this action,
21 Plaintiff seeks to enforce the Defendants obligations as they specifically apply to children with
22 disabilities who have previously resided, presently reside or may in the future reside in the
23 District. However, Plaintiff is informed and believes that the deficiencies set forth in this
24 Complaint are reflective of a statewide failure to provide FAPE and therefore seeks a remedy
25 fashioned so as to benefit all children with disabilities within the State of California.
26

9.

MHUSD is comprised of 14 schools and serves about 10,000 children, many of

27 whom are sons and daughters of indigent families, English Language Learners, and Silicon
28 Valley technology-sector employees. Ten to twenty percent of these children are believed to have
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COMPLAINT

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1 disabilities that qualify them for special education and related services under the IDEA.
2

10.

CDE has failed to fulfill its fundamental obligation to provide FAPE to all children

3 with disabilities within the District by: (a) failing to adequately monitor MHUSDs compliance
4 with federal and state laws related to the education of children with disabilities; (b) failing to
5 adequately investigate Concerned Parents and other parents complaints regarding MHUSDs
6 noncompliance with these laws; (c) failing to investigate the systemic or repetitive nature of the
7 Districts violations; (d) failing to issue adequate corrective actions to cure the Districts
8 violations; (e) failing to monitor compliance with CDE-issued corrective actions, and (f) failing to
9 ensure the provision of or directly provide FAPE to all children with disabilities within the
10 District as and when it became apparent that the District was unable or unwilling to do so.
11

11.

CDE has been aware of the Districts inability or unwillingness to provide FAPE

12 to children with disabilities within its jurisdiction for over three years and has been afforded
13 multiple opportunities to compel local compliance. Specifically, and in response to Plaintiffs
14 persistent complaints, CDE conducted a verification review of MHUSDs compliance with the
15 IDEA and related laws in the fall of 2008. CDEs January 2009 Verification Review Report
16 (VR Report or Report) concluded that MHUSD was systemically noncompliant in no fewer
17 than thirty areas. Despite its findings, CDE issued corrective actions that merely required paper
18 compliance and took no steps to verify the Districts success in actually curing the systemic
19 deficits. As a result, children with disabilities within the District continued to be deprived of
20 FAPE. Plaintiff Concerned Parents and individual student complainants sought to remedy the
21 Districts systemic shortcomings by filing a Noncompliance Complaint with CDE in August
22 2010. Despite the detailed factual allegations set out in the Noncompliance Complaint, and
23 despite knowledge of the Districts prior failure to provide FAPE as evidenced by the VR Report,
24 complaints filed against MHUSD and other sources, CDE undertook no meaningful investigation
25 of the statutory IDEA violations detailed in the Noncompliance Complaint and summarily denied
26 the relief sought by the complaint. To this day, students with disabilities in the District continue
27 to suffer systemic deprivation of FAPE.
28
SAGY LAW
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12.

At all times relevant and continuing to date, CDE has allowed the District to
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1 systematically deprive students with disabilities of FAPE in the following respects, among others:
2 (1) failing to identify children with special needs; (2) rejecting or delaying response to assessment
3 requests made by parents or teachers; (3) using intimidation and retaliation tactics against parents
4 seeking an assessment or other services for their children; (4) deceiving parents into believing
5 that no written requests for an assessment were necessary, so that the Districts failure to grant
6 verbal requests would not be documented; (5) failing to conduct proper assessments; (6) failing to
7 respond to parents requests for independent educational evaluations (IEEs); (7) unreasonably
8 delaying the development of Individualized Education Plans (IEPs); (8) inappropriately
9 convening IEP meetings (untimely; without proper notice; without parents or essential team
10 members participation; without proper interpretation, or other accommodations necessary for a
11 proper IEP meeting); (9) falsely recording attendance of absent District personnel; (10) failing to
12 implement IEPs; (11) ignoring parental requests for staff and teacher credentials; (12) failing to
13 place children in suitable programs and to protect children with disabilities from bullying
14 students; (14) ignoring parents stay put requests to maintain their childrens placement status
15 quo; (15) placing children in geographically remote programs without exploring the availability
16 of other more suitable programs; (16) failing to provide transition plans; (17) failing to honor the
17 Districts obligations under mediated or other settlements; (18) failing to reimburse parents who
18 paid for services called for by their childs IEPs; (19) applying discriminatory tactics in educating
19 children with disabilities, including physical restraints; (20) using intimidation and retaliation
20 tactics to discourage parents from making educational demands on behalf of their children; and
21 (21) retaliating against children whose parents made demands on their behalf.
22

13.

There are at least three categories of children with disabilities within the District

23 that are particularly disadvantaged by MHUSDs discriminatory implementation of, or failure to


24 implement, the IDEA mandates. First, the District purports to provide educational services to
25 infants with disabilities by placing them in one of three Special Day Classes (SDC)one, for
26 children with Autism Spectrum Disorder (ASD), another, for children with non-categorical
27 disorders, and a third for Speech Only. As implemented and applied, MHUSDs placements
28 provide no solution for pre-schoolers with high-functioning Autisma large and growing
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1 segment of the infant population. Placement of high-functioning infants in MHUSDs ASD SDC
2 program is overly restrictive and leads to emotional and behavioral regression in these childrens
3 development; placement in the non-categorical SDC, on the other hand, provides no
4 individualized support services or general education placement and prevents infants with high5 functioning Autism from advancing socially, emotionally and academically. Second, MHUSD
6 has developed a policy of withholding services from any child who performs well academically
7 regardless of the childs emotional or psychological challenges. Without an appropriate
8 Behavioral Support Plan, for instance, many children with special emotional or psychological
9 needs begin to fall behind as their behavioral challenges increasingly interfere with their ability to
10 advance academically and impair their development into productive individuals. When their
11 behavioral difficulties overwhelm untrained District personnel, the children are removed from
12 their neighborhood schools and are generally placed in remote and highly restrictive segregated
13 programs. Finally, MHUSD has neither designed nor implemented appropriate transition plans
14 for children with disabilities at each crucial phase of their young lives: from kindergarten to
15 elementary school, from elementary to middle school, from middle school to high school and
16 from high school with the life skills necessary to transition to an independent life.
17

14.

That the California Department of Education was aware of the dysfunction that has

18 prevented the District from providing FAPE is memorialized by the CDEs own publicly
19 available data. The CDE 2011 Adequate Yearly Progress (AYP) Report for the 2010-2011 school
20 year shows that students with disabilities at MHUSD failed to meet the target proficiency level in
21 English-Language Arts or Mathematics. Similar reports show that the proficiency levels for the
22 2010-2011 school year are even lower than those reported for 2009-2010. The overall test results
23 of children with disabilities have continued to decline, as have the services they have been
24 receiving. While CDE has acknowledged the need for corrective actions to reverse MHUSDs
25 declining proficiency trend, no effective action has been taken.
26

15.

CDEs reports memorialize Morgan Hills failure to meet other key educational

27 indicators for children with disabilities. With respect to the Least Restrictive Environment, the
28 CDE study showed that more children with disabilities within the District than the acceptable
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COMPLAINT

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1 standard spent more than 80% of their time in a segregated environment and too many children
2 were housed in entirely separate facilities. Similarly, the 14.4% four-year drop-out rate for
3 special education students at MHUSD is substantially above the accepted indicator level of
1
4 4.6%.

16.

Each of these troubling indicators would alone warrant corrective action;

6 collectively they demonstrate MHUSDs broader failure to provide FAPE. Demonstrably aware
7 of these indicators and the Districts consequent failure to provide FAPE, CDE was obligated to
8 step in and either ensure the provision of FAPE or provide FAPE directly. Instead, CDE has
9 abetted the Districts scheme to thwart the design and construct of a system-wide infrastructure
10 for the identification and delivery of services to all children with disabilities, focusing, instead, on
11 temporary solutions through individual due process hearings that offer no sustained relief for the
12 child and no solutions for those children similarly situated. Though due process hearings are
13 often a satisfactory remedy within school districts that have a functioning special education
14 infrastructure, they are doomed to failure where, as here, the district lacks the will or capacity to
15 implement the administrative outcomes. The CDE was in a unique position to observe the
16 dysfunctionality of the Districts piecemeal approach and should have either directed MHUSD to
17 fashion a system-wide solution or undertaken the task itself.
17.

18

Plaintiff brings this action to compel CDEs compliance with its fundamental

19 IDEA mandate to ensure the provision of, or directly provide, FAPE to all children with
20 disabilities within the MHUSD.
LEGAL FRAMEWORK

21
18.

22

Under the IDEA, state educational agencies (SEA) bear the ultimate

23 responsibility for ensuring the provision of a free appropriate public education to all children with
24 disabilities. 20 USC 1412(a)(11)(A). CDE, as the SEA, is required to engage in a number of
25 activities to fulfill this fundamental responsibility, including monitoring, investigation of the local
26
1

The four-year dropout rate is an estimate of the percent of students who would drop out in a four-year

27 period based on data collected for a single year.


28

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COMPLAINT

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1 education agency, design and enforcement of corrective actions or provision of services directly
2 to children with disabilities in the face of a noncompliant local educational agency (LEA), such
3 as MHUSD. The Individuals with Disabilities Education Improvement Act emphasizes that the
4 focus of the SEAs monitoring obligations is the improvement of educational results and
5 functional outcomes for all children with disabilities through the provision of appropriate
6 services. 20 USC 1416(a)(2)(A). To that end, the IDEA identifies the SEAs top priority in
7 monitoring the LEAs as ensuring the provision of FAPE in the LRE. 20 USC 1416(a)(3)(A).
8

19.

CDE has failed and continues to fail to ensure that all children with disabilities

9 residing in MHUSDs jurisdiction receive FAPE. CDE has failed and continues to fail to monitor
10 and investigate the District, to design and enforce meaningful corrective actions to correct the
11 Districts violations and/or provide FAPE directly to children with disabilities once it became
12 aware that the District was either unwilling or unable to provide FAPE itself.
STATEMENT OF FACTS

13
14

A.

CDEs FINDINGS OF SYSTEMIC NONCOMPLIANCE

15

20.

Between November 17 and November 20, 2008, CDE conducted a Verification

16 Review of the Districts compliance with federal and state laws related to the education of
17 children with disabilities. As part of the MHUSD Verification Review, CDE held a parent input
18 meeting with a moderator. Parental input in the form of either a parent meeting or a parent survey
19 is a mandatory element of the Verification Review. CDE uses this element of the review process
20 to enable parents and guardians the opportunity to share their perspectives and experiences and,
21 thus, to obtain critical information otherwise not available in the paper records the District
22 supplied. Parent input meetings are designed to inform both the scope of the CDEs Verification
23 Review as well as its conclusions. In the resulting January 16, 2009 Verification Review Report
24 (VRR), the CDE found that MHUSD was systemically noncompliant at virtually every level of
25 the state and federal legal mandate that each child with a disability be provided FAPE in the LRE.
26 Among the many other areas of noncompliance, the VRR identified the following:
27

Identification and Assessment: CDE found that there was no evidence that MHUSD

28

had informed parents of their right to obtain, at public expense, an independent


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COMPLAINT

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educational assessment, if the parent disagreed with the assessment conducted by the local

educational agency as required by 34 CFR 300.504(c)(1), 30 EC 56329(b). VRR Item

No. 2-1-2.2.

IEP Scheduling and Participation: CDE found that there was no evidence that MHUSD

had:

consent to the Assessment Plan as required by 20 USC 1414(a)(1)(C)(i)(I), 34

CFR 300.535(b), 300.343(b), 30 EC 56344 (VRR Item No. 3-1-1.1);

8
9

developed and implemented an IEP within 60 days of obtaining written parental

developed and implemented an IEP that includes a description of how the

10

students progress toward meeting the annual goals will be measured as required

11

by 20 USC 1414(d)(1)(A)(viii), 1414(d)(1)(A)(i)(III), 34 CFR 300.320(3)(ii),

12

30 EC 56345 (VRR Item No. 3-2-7);

13

students progress in meeting the annual goals will be provided (id.);

14
15

developed and implemented an IEP that describes how the students parents will
be regularly informed of the students progress in reaching annual goals (id.);

16
17

developed and implemented an IEP that describes when periodic reports on the

included as part of the IEP team a general education teacher as required by 20

18

USC 1414(d)(1)(B)(ii), 34 CFR 300.321(a)(2), 30 EC 56341(b) (VRR Item No.

19

3-4-1.2);

20

included as part of the IEP team the behavioral intervention case manager

21

whenever the IEP team reviews the functional analysis assessment and, if

22

necessary, develops a behavioral intervention plan as required by 5 CCR 3052(c)

23

(VRR Item No. 3-4-1.9);

24

300.322(b)(2)(i)(ii), 30 EC 56341(VRR Item No. 3-6-6); or

25
26

invited the student to attend the IEP meeting as required by 34 CFR

obtained the parents consent before excusing a member of the IEP team from

27

attending an IEP meeting involving a modification to, or discussion of, the

28

members area of the curriculum as required by 20 USC 1414(d)(1)(C)(ii), 34 CFR


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COMPLAINT

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300.321(e)(2), 30 EC 56341(g)&(h). VRR Item No. 3-4-4.

1
2

Assistance for Limited English Participants: CDE found that there was no evidence

that MHUSD had:

considered the language needs of a student with limited English proficiency as

those needs related to the IEP as required by 20 USC 1414(d)(3)(B)(ii), 34 CFR

300.324(a)(2)(ii), 30 EC 56345(b)(2), 56341.1(b)(2) (VRR Item No. 3-5-8); or

7
8

included linguistically appropriate goals, objectives, programs and services in the


IEP. Id.

Placement and Related Services: CDE found that there was no evidence that MHUSD

10

had included the parents and not less than one general education teacher, not less than one

11

special educator, and an LEA representative in all placement decisions made by the IEP

12

team as required by 20 USC 1414(d)(1)(B)(ii), 34 CFR 300.327, 30 EC 56304, 56341,

13

56342.5. VRR Item No. 5-1-5.

14

Least Restrictive Environment: CDE found that there was no evidence that MHUSD

15

had considered the provision of positive behavior interventions and strategies to address a

16

student whose behavior impedes his or her own learning in the LRE or the learning of

17

others, as required by 20 USC 1414(d)(3)(B)(i), 34 CFR 300.324(a)(2)(1), 30 EC

18

56341.1(b)(1). VRR Item No. 3-5-7.

19

Extended School Year Services: CDE found that there was no evidence that MHUSD

20

had provided extended school year services as required by 34 CFR 300.106, 30 EC

21

56345(a)(4). VRR Item No. 4-1-12.14.

22

Transition Planning and Services: CDE found that there was no evidence that MHUSD

23

had developed IEPs to be in effect when the student turns 16 (or younger as deemed

24

appropriate) that, among other things:

25
26

included courses of study designed to facilitate the transition from school to postsecondary life (VRR Item No. 3-6-1);

27

described needed transition services focused on improving academic and

28

functional achievement to facilitate the transition (VRR Item No. 3-6-2);


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COMPLAINT

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contained measurable post-secondary goals based on age-appropriate transition

assessments related to training, education, employment and, where appropriate,

independent living skills (VRR Item No. 3-6-2.1.2); and

(BB), 34 CFR 300.324(b)(1)(i). VRR Item No. 3-6-2.2.

5
6

were reviewed annually as required by 20 USC 1414(d)(4)(A)(ii)(cc) (AA) and

Infant Services. CDE found that there was no evidence that MHUSD had:

conducted all evaluations and assessments of infants and toddlers in natural

environments whenever possible as required by 17 CCR 52084(e) (VRR Item No.

8-2- 1.7);

10

completed all evaluations and assessments of infants and toddlers within 45 days

11

of the date that the LEA received a referral as required by 34 CFR 303.321(e)(2),

12

17 CCR 52086(a) (VRR Item No. 8-2-5);

13

included a statement of the measurable results or major outcomes expected to be

14

achieved for the infant or toddler and their family in each students

15

Individualized Family Service Plan (IFSP) as required by 20 USC 1436(d)(3),

16

34 CFR 303.344(c), 14 GC 95020(c), 17 CCR 52106(b) (VRR Item No. 8-4-9.3);

17

and

18
19

21.

provided home visits as required by 30 EC 56426.2(d). VRR Item No. 8-5-10.


Although the Verification Review of MHUSD revealed widespread, systemic

20 violations of federal and state law, CDE did not take the actions necessary to ensure that MHUSD
21 students with disabilities would be provided FAPE. Instead, CDE imposed inadequate
22 corrective action plans that focused on the Districts paper compliance with the IDEA and
23 other applicable laws. Namely, even though the findings of systemic violations were based on a
24 review of actual student records and not upon existing MHUSD policies and procedures, CDE
25 merely required MHUSD to provide evidence that it had compliant policies and procedures.
26 Specifically, the District was only obliged to verify that it had notified administrators and staff of,
27 and that it provided training on, these policies and procedures. MHUSD could demonstrate
28 compliance with these requirements by providing CDE with evidence of pre-existing (and
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COMPLAINT

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1 demonstrably ineffective) policies and procedures, notification and training. It was not required
2 to provide evidence that those policies and procedures had been enforced. To the extent CDE
3 subsequently sampled actual student records it did so in an ineffective manner. Not only did CDE
4 provide MHUSD with advance notice of the records that it would review, it defined the records to
5 be sampled in such a way as to encourage MHUSD to switch from one noncompliant tactic to
6 another. For example, to escape the requirement that the IEP team include a behavioral
7 intervention case manager whenever the IEP team considered a functional analysis assessment or
8 developed a behavioral intervention plan, MHUSD simply stopped including functional analysis
9 assessments and developing behavioral intervention plans even where the childs disability
10 plainly called for one or both. Likewise, to reduce the number of times the District could be
11 found to have failed to provide services required by the IEP, the District simply cut back on the
12 number and type of services called for in IEPs regardless of a childs documented needs.
13

22.

Tellingly, CDE failed to consult at all with those in the best position to evaluate

14 the Districts success in correcting the identified systemic violationsthe parents of children with
15 disabilitiesbefore concluding that all of the violations had been cured. Had the CDE consulted
16 with the parents, it would have discovered that not only had the District not corrected all of the
17 previously identified systemic violations, it had developed a new pattern of violations in order to
18 demonstrate paper compliance with the CDEs corrective actions.
19

23.

In an April 9, 2010 letter from CDEs Director, Special Education Division,

20 without requesting any further input from MHUSD parents and without any evidence of
21 discernible improvements in the systemic irregularities that continue to impede the provision of
22 FAPE to children with disabilities in the District, CDE advised MHUSD that it had demonstrated
23 correction of all noncompliant findings from the Verification Review.
24

B.

PLAINTIFFS NONCOMPLIANCE COMPLAINT AND CDES


PERFUNCTORY DENIAL OF CLAIMS

24.

On July 28, 2010, Concerned Parents and a number of individual student

25
26

27 complainants, perceiving the futility of pursuing individual due process claims in the wake of the
28 Districts response to the Verification Review, including its substitution of one set of systemic
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1 violations for another, filed a Noncompliance Complaint (NCC) with CDE. The NCC alleged
2 both further examples of the same noncompliance issues identified in the CDEs original
3 Verification Review Report, confirming that MHUSD had not corrected those systemic
4 violations, as well as entirely new systemic violations. Accordingly, CDE had notice that each of
5 the broader areas of systemic noncompliance CDE had identified in its Verification Review
6 Report had not been cured and that MHUSD had developed and engaged in additional systemic
7 violations. Amongst its allegations, the NCC demonstrated that MHUSD:
8

discouraged parents from seeking an assessment for their children (NCC 2:3);

failed to inform parents of their right to obtain an independent evaluation at public


expense (NCC 12:10-11);

10
11

unreasonably delayed Individualized Education Plans (NCC 2:5-6);

12

was out of compliance in its failure to hold timely or appropriate IEP meetings
(NCC 12:22-23);

13
14

conducted inappropriate IEP meetings (untimely; without proper notice; without

15

parents or crucial team members participation; without proper interpretation, or

16

other accommodations necessary for a proper IEP meeting) (NCC 2:6-9);

17

failed to . . . respond to behavioral challenges (NCC 3:6-8);

18

ignored or rejected requests for development of positive behavior support plans (NCC
3:28-4:8 & NCC 4:16-18, 25-28);

19
20

failed to provide transition plans (NCC 2:12, 8:15);

21

failed to implement a transition plan and prepare [students] for independent life
(NCC 34:10-13);

22
23

state law (NCC 15:7-8);

24
25

28
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ignored its obligation to provide Extended School Year [ESY] services (NCC
4:7-8); and

26
27

failed to offer transition services that comply with the standards set by federal and

failed to offer [ESY] services during the summer months necessary to avoid
regress and ease the transition into first grade (NCC 10:1-2).
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1 The NCC also provided examples of MHUSDs failure to provide language-appropriate forms for
2 parents with limited English proficiency and failure to assess preschool age children.
25.

To provide CDE with concrete examples of how the District continued to deprive

4 children with disabilities of FAPE, the NCC offered details regarding the experiences of six
5 individual students in MHUSD who had been denied FAPE. The experiences of those students
6 who have remained in the District have not measurably improved since the NCC was filed:
WADE P.2

7
26.

Wade P., a ten-year-old child, was diagnosed with Autism by Childrens Health

9 Council at age 3 and has had periodic IEPs since that time. MHUSD thwarted Wades ability to
10 optimize his educational opportunities in numerous ways by, among other things, failing to
11 adequately assess, actively excluding Wades parents from IEP meetings, then retaliating against
12 Wade when his parents asserted their rights under the IDEA. Wades parents ultimately
13 concluded that they had no choice but to home-school Wade. The District failed Wade on
14 numerous levels, including the following:
27.

15

The District scheduled three IEP meetings and cancelled each one. It then

16 scheduled a fourth meeting at a time when the District knew his parents could not attend. Rather
17 than reschedule this meeting, the District proceeded in Wades parents and their specialists
18 absence and, over their objections, reduced Wades inclusion time in a general education class by
19 50% and eliminated 15-18 hours of weekly at-home services mandated by his earlier IEP.
28.

20

The District failed to provide supports required by his IEP, including a one-on-one

21 (1:1) aide (the District refused to reimburse Wades parents the $30,000 cost of hiring one),
22 twice-a-week study groups of no more than 5 students, Speech Therapy over an Extended School
23 Year, and occupational therapy training for his teacher. Similarly, the District unilaterally, and
24 without a transition plan in place, changed Wades in-home Applied Behavior Analysis to a
25 District provider.
26
2

In order to protect the children from any backlash as a consequence of publicly telling their stories, they are

27 referenced herein by pseudonyms.


28

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29.

Filed 12/29/11 Page 15 of 31

Concerned that Wades behavior was impeding his learning, Wades parents

2 requested that his assessment include a Functional Behavior Analysis and that he be provided
3 with a Behavioral Support Plan. The District refused the request. His parents then asked for an
4 independent educational evaluation (IEE). The District initially agreed, then later, without
5 notice to Wades parents, put the evaluation on hold. In order to avoid further delay and
6 ongoing injury to Wades education, his parents retained and paid for a specialist to undertake a
7 private assessment. The specialist found that Wade suffers from a Central Auditory Processing
8 Disorder and Hyperacusis (a health condition characterized by over-sensitivity to certain
9 frequency ranges of sound) both of which were consistent with Wades documented performance
10 problems. Although the District agreed to reimburse Wades parents for the expense of the
11 assessment and other educational services in a mediated settlement, it unreasonably delayed
12 reimbursement for the assessment and has not reimbursed Wades parents at all for other
13 expenses it had agreed to pay.
14

30.

Inexplicably, other than as a form of retaliation, the District notified the California

15 Virtual Academy (CAVA)an educational institution supporting parents and children who are
16 homeschooledthat Wade had been truant, knowing that CAVA does not accept truant students.
17 Though the District has acknowledged that Wade was not truant, it has refused to retract its
18 notification to CAVA. As a result, CAVA refused to enroll Wade.
ROBERT R.

19
20

31.

Robert R., an eleven-year-old child, has been diagnosed with ADHD, mood

21 disorder, intermittent explosive disorder and other mental challenges. Roberts condition
22 manifests in challenging classroom behavior such as head banging. The District abandoned its
23 IDEA obligations to Robert by, among other things, failing to assess and develop a behavioral
24 support plan. Without a support plan, neither Robert, his teachers nor his aides were equipped to
25 respond to his behavioral challenges. As a consequence, Robert was routinely removed from the
26 classroom and therefore deprived of his educational opportunities altogether. Instances of the
27 Districts failure to provide FAPE include the following:
28
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32.

Filed 12/29/11 Page 16 of 31

Despite repeated requests by Roberts parents, MHUSD refused to perform a

2 Functional Behavioral Assessment or develop a suitable Behavioral Support Plan to provide


3 guidance to Roberts teachers and aides in responding to his complicated needs. Instead, the
4 District relied upon Roberts parents to simply remove him from the classroom whenever his
5 diagnosed disorders manifested. On one occasion when his mother was unable to leave work,
6 MHUSD called the police and suspended Robert from school for non-violent conducta
7 predictable, if horrific, result of the Districts failure to properly address Roberts behavioral
8 challenges.
9

33.

The Districts failure to address Roberts behavioral challenges led to serial

10 involuntary suspensions, causing him to slip further and further behind academically. His learning
11 was further compromised by the Districts refusal to provide trained 1:1 aides as called for in
12 Roberts IEP. Yet the District rejected his parents requests for compensatory education, stating
13 that Robert was only 2 years behind academically.
JASON B.

14
15

34. Jason B., a thirteen-year-old student, received his first IEP at the age of 4, which

16 identified speech disorders, Reactive Attachment Disorder, ADHD and Oppositional Defiance
17 Disorder. MHUSD utterly failed to provide the services Jason required in order to advance
18 academically by, among other things, first failing to assess and identify, then failing to restrain
19 the relentless bullying to which Jason was subjected. Jason was transferred to another school
20 district where he is now thriving given the proper support services. Jasons experiences within
21 the District included the following:
22

35.

Despite Jasons parents and teachers repeated requests that the District conduct

23 an assessment, the District consistently and adamantly refused to do so, engaging in inappropriate
24 behavior (verbal threats and threatening gestures, yelling, and storming out of a meeting before
25 its conclusion) to intimidate his parents. When the District finally agreed to a limited assessment,
26 it failed to identify Jasons Autism, speech deficiencies, fine motor skill deficiencies, and other
27 deficits that Jasons psychiatrist and other specialists had diagnosed.
28
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1

36.

Filed 12/29/11 Page 17 of 31

Ignoring his parents complaints, neither the District nor the school intervened

2 when Jason was repeatedly bullied by other students at Martin Murphy Middle School.
3 Following a particularly violent attack, the school principal refused to file an incident report and
4 pressed the police to refrain from issuing a report for fear that the schools reputation would be
5 negatively affected. The District later denied the witnessed incident. The only step MHUSD took
6 to purportedly protect Jason from the bullying was to instruct him to limit his social engagement
7 with other childrenone of many examples of an untrained and overwhelmed District staff
8 taking steps that punish the victim, by further isolating him, and doing nothing to restrain the
9 aggressive and threatening behavior of his classmates.
ROLAND F.

10
11

37.

Roland F., a sixteen-year-old, has been diagnosed with moderate-to-severe

12 Autism. Because he does not speak, Roland requires assistive technology in order to learn. The
13 District refused to provide the technology and failed to involve his parents in any meaningful
14 way. Nor did the District provide the mandated transition plans and services when Roland moved
15 from elementary to middle school, and then from middle to high school. Among the many ways
16 in which the District failed Roland are the following:
17

38.

Approaching the 2008-2009 school year, MHUSD failed to advise Rolands

18 parents that the only proposed placement for himthe Severely Handicapped Class at Sobrato
19 was going to close. When Rolands parents finally learned of the closure, they requested that
20 MHUSD address Roland's transition IEP and ninth grade placement. Ignoring the parents
21 requests, denying their stay put request, and without consulting them or obtaining their consent,
22 MHUSD notified Rolands parents just days before the commencement of the school year that
23 Roland was to enter a Campbell County middle school programa most restrictive program 30
24 miles from Rolands home. Both Rolands parents and the school psychologist rejected the
25 Campbell County program as too restrictive and too far from home. MHUSD offered no
26 alternative placement for five weeks, during which time Roland remained at home with no
27 compensatory education.
28
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39.

Filed 12/29/11 Page 18 of 31

From November 2010 to February 2011, Roland was unable to ride the school bus

2 to and from school due to the bullying that he and other children with disabilities experienced on
3 the bus. The District refused to provide him with any support on the bus; according to his
4 principal, bullying is part of school and he deemed the schools current policies sufficient.
5 Lacking District support, Roland had to be driven to and from school by his parents.
6

40.

The District has made no accommodations for Rolands many challenges. For

7 instance, when his class assembled for a group photography session, Roland was not allowed to
8 participate. Similarly, Roland and his class were excluded from the end-of-the-year eighth grade
9 field trip because the District allegedly could not afford to send an aide to support Roland. His
10 parents requested that the District confirm this in writing but it ignored the request.
41.

11

Nor has the District provided the support Roland needed to succeed in the lower

12 grades or the transition services necessary to make a successful move to high school. For the past
13 ten years the District withheld from and refused to provide Roland with any assistive technology
14 or any other means designed for, and regularly offered to, children with disabilities similar to his.
15 And, when Roland was poised to transition into a high school program, MHUSD entirely failed to
16 address his transition; it has neither performed a timely assessment to inform any placement
17 decision, nor has it convened an appropriately staffed IEP.
EDWARD S.

18
19

42.

Edward S., a seven-year-old, was diagnosed with high functioning Autism.

20 MHUSD stymied Edwards educational objectives by, first failing to assess, then subjecting him
21 to unauthorized assessments, without notice to his parents, in order to lower the number of
22 services to which he was otherwise entitled. Examples of the Districts failure to provide FAPE
23 include:
24

43.

In defiance of Edwards IEP, MHUSD unilaterally, both without notice to his

25 parents and without any justification: reduced Edwards weekly Applied Behavioral Analysis
26 (ABA) Services from 15 hours to 3 and reduced the originally provided 4 hours of coaching
27 and coordination to 1.5 hours a week. The Districts unilateral reduction of services caused a
28 dramatic regression (of at least one year) in the skills Edward had acquired to date and is likely to
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1 cause irreversible damage. Yet the District has offered no services during the summer months
2 nor has it provided any compensatory education to alleviate these deficits.
3

44.

Instead, and in an apparent effort to reduce the already limited services Edward

4 was receiving, and without his parents notice or consent, MHUSD reassessed Edwards
5 previously diagnosed Autism. The District concluded that his Autism eligibility needed to be
6 modified and, on that basis, restricted his services even further.
7

C.

ADDITIONAL SPECIFIC EXAMPLES OF MHUSDS ONGOING


SYSTEMIC NONCOMPLIANCE

45.

The NCC requested that CDE investigate not just the circumstances of the

8
9

10 individual student complainants but also violations affecting children similarly situated, the
11 areas of violation identified in the Verification Review and MHUSDs capacity to provide
12 children with disabilities with a FAPE in the Least Restrictive Environment. In light of the
13 NCCs allegations of systemic violations and the CDEs own findings of systemic deficits in the
14 Verification Review, CDE had the obligation to undertake a thorough review of not just the
15 circumstances of the individual students identified in the NCC, but also the availability of a
16 service delivery system in the District to address challenges of similarly situated students. CDE
17 engaged in no meaningful investigation nor did it solicit input from any of the Concerned Parents
18 or parents of children similarly situated. Instead, CDE relied on the Districts self-serving
19 conclusory reports to summarily reject the NCCs allegations of noncompliance. The CDEs
20 failure to investigate, to correct the Districts systemic noncompliance with, and/or provide its
21 own services in satisfaction of, federal and state laws designed to protect children with disabilities
22 demonstrates CDEs own noncompliance with these laws.
23

46.

Had the CDE complied with its obligation to ensure MHUSDs provision of FAPE

24 in the LRE by conducting a thorough investigation of the Districts service delivery system
25 subsequent to the Verification Review or in response to the NCC, CDE would have discovered
26 ongoing systemic violations of the IDEA. Those endemic deficits continue to define the life of
27 children with disabilities within the Morgan Hill Unified School District today. The following
28 are merely a handful of examples of an ongoing pattern of behavior by which the District defies
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1 its obligation to provide FAPE to the children of Morgan Hill:


VIRGINIA F.

2
3

47. Virginia F., a fourteen-year-old, was diagnosed with Autism in a pre-kindergarten

4 privately funded evaluation. After providing some, but not all, of the services Virginia needed to
5 engage academically, the District subjected her to an unauthorized assessment that incorrectly
6 concluded that she had no social or emotional challengesthis, on the heels of a suicide attempt.
7 Because of persistent and dangerous bullying, Virginias parents had no choice but to move her to
8 a middle school that requires a 30-mile roundtrip drive every day.
9

48. Although MHUSD acknowledged Virginias Autism during elementary school, it

10 never recognized her eligibility for services as a child suffering from Autism. Instead, MHUSD
11 treated Virginia as a student with Specific Learning Disabilities (SLD) and Speech and Language
12 Impairment (SLI) only, entitling her to some but not all the services she needs.
13

49.

In middle school, the District would no longer even acknowledge her disability

14 despite the documented diagnoses. MHUSD unilaterally removed the social skills support
15 services from Virginia's IEP in 2010, though they had been mandated by all of her prior IEPs to
16 address her most serious deficit. The District stated only that it no longer had the staff to provide
17 those services.
18

50.

Virginias parents repeatedly expressed concern for their daughters safety both in

19 writing and in person, pointing to severe and systemic problems of student bullying at the
20 District. MHSUD took no steps to protect Virginia, stating that bullying was simply part of
21 middle school, and that the Districts policies were more than adequate to protect Virginia. Yet,
22 the District was aware that Virginia had left a note stating that she had attempted to commit
23 suicide because of the relentless and ongoing bullying.
24

51.

Following Virginias suicide attempt, MHUSD suggested in an IEP that Virginia

25 seek out a psychologist in one of various mental health agencies but failed to provide Virginia
26 and her family with any guidance, support or counseling as to where such services could be
27 obtained.
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52.

Filed 12/29/11 Page 21 of 31

Rather than address Virginias ongoing safety concerns, the District first directed

2 Virginias parents to pursue independent studies at homeservices for which the parents
3 received no District compensation, meaningful support or guidance. The District then asked that
4 she return citing the loss of funding while Virginia remained at home. Having terminated
5 Virginias IEP-mandated aide whose task it was to ensure Virginias safe entry into, and exit
6 from, school, the bullying predictably intensified and the District once again sent Virginia home.
7

53.

In a cynical effort to legitimize the removal of all services it had previously

8 promised to Virginia, the District conducted an unauthorized, inappropriate and incomplete


9 social, emotional and Autism assessment. The resulting District assessmentthat Virginia had
10 no social and/or emotional challenges and did not meet the Autism criteriacontradicted all of
11 the Districts prior observations and defied the plain facts.
12

54.

Virginias parents requested that MHUSD permit an independent educational

13 evaluation (IEE) following the Districts financially motivated and unsustainable assessment.
14 MHUSD has failed to respond to Virginias parents repeated requests for an IEE. The District
15 has maintained its public conviction that Virginia has no social or emotional issues even in the
16 face of learning that Vivian was carrying a utility knife in her school pack because she is
17 cutting herselfa syndrome that is considered to be a serious mental health issue. MHUSDs
18 only response has been to threaten to take Virginia to the expulsion board.
GREGORY G.

19
20

55.

Gregory G., a thirteen-year-old, was diagnosed with ADHA at the age of 4 and

21 Bipolar Disorder at the age of 10. He also suffers from auditory processing deficits which
22 manifest in a short attention span, inappropriate and aggressive behavior with peers and poor self23 control. MHUSDs approach to Gregorys many learning and behavioral challenges has been to
24 promise, renege, then renew the empty promise. As a consequence, Gregory fell two years
25 behind academically and his behavior had become uncontrollable before he moved to a far more
26 responsive and successful County program. Among the many examples of the Districts bait
27 and switch tactics are:
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56.

Filed 12/29/11 Page 22 of 31

After years of ignoring Gregorys parents requests for an assessment, MHUSD

2 finally agreed to provide minimal services when he was in fourth grade: an aide, speech therapy
3 and ten minutes per week of psychiatric observation. Two months later the District unilaterally
4 discontinued speech services and aide support.
5

57.

Gregorys parents repeated requests for a behavioral support plan were met with

6 similar resistance from MHUSD. Once it acknowledged that a plan was indeed necessary, the
7 District developed one that had no steps or skill-building measures nor any guidance for his
8 teachers. It merely required Gregory to STOP, THINK AND PLAN. Gregory did not obtain
9 the tools that would allow him to control his moods, behaviors and ability to focus; he was,
10 accordingly, routinely excluded from general education recess activities and field trips.
11

58.

The District has been comparably obstructionist in convening IEP meetings and

12 implementing the resulting directives. At one IEP meeting, MHSUD agreed to provide Gregory
13 a 1:1 aide with appropriate Tucci support. It later recanted its agreement. At a subsequent IEP
14 meeting, MHUSD once again agreed to provide a Tucci-trained aide. After just one month, the
15 District unilaterally discontinued the Tucci-trained aide and replaced him with an inexperienced
16 and untrained District aide. The Districts untrained aide quit his job after two hours of work
17 with Gregory.
18

59.

MHUSDs bait and switch behavior persisted through a 2008 due process

19 hearing and resulting settlement. Pursuant to the Settlement Agreement, the District once again
20 agreed to: provide Gregory with a 1:1 Tucci-trained aide who would start immediately; the aide
21 would conduct a Functional Behavior Analysis; and the parents would be reimbursed for prior
22 tutoring. The District breached each of its pledgesthe only reasons the parents had agreed to
23 the settlement.
24

60.

Gregorys 2011 IEP confirmed that he was two years behind his peers in virtually

th
25 all academic areas, well down from the 50 percentile that his earlier IEPs identified. The IEP

26 team agreed that the appropriate placement for Gregory was a highly structured program
27 specializing in the education of children with severe emotional and behavioral problems,
28 including a trained 1:1 aide and integrated psychotherapy. The District confirmed that it had no
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1 program appropriate for Gregory. He was accordingly placed in a County program where he and
2 his teachers are now guided by a more meaningful behavioral support plan. With the essential
3 guidance of the plan, Gregory has been able to better engage academically as reflected in his
4 rising test scores although his academic progress remains significantly below his intellectual
5 abilities as a consequence of the many years the District deprived him of appropriate behavioral
6 supports.
FREDERICK M.

7
8

61.

Frederick M., age 9, was diagnosed with Autism in 2006. With full knowledge

9 that his parents were non-native English speakers, the District actively misled them into agreeing
10 to a plan that resulted in Frederick losing access to all support services until May of 2011. When
11 his parents sought to rectify the loss, MHUSD told them it had lost all of his records. Only after a
12 long struggle were his parents able to reinstate his IEP. Among the many ways in which the
13 District failed Frederick are:
14

62.

Although his parents had provided a copy of the 2006 medical report affirming his

15 diagnosis to MHUSD shortly after they obtained it in roughly August 2006, the District failed to
16 timely assess Fredericks areas of need and denied him eligibility based on his academic progress.
17 When the District finally implemented an IEP in June 2007, it stated that a therapeutic approach
18 . . . is needed in classroom and socially. Notwithstanding this, the District provided only one
19 Expressive Language goal in the IEP.
20

63.

IEP meetings and evaluations in 2008 identified Fredericks many challenges as

21 including ADHD, socialization, organization, impulsivity, Aspergers Syndrome, working


22 memory and emotional liability. Despite all of the objective evidence, MHUSD suggested to
23 Fredericks parents that Frederick no longer have an IEP but instead have only a Section 504
24 plan. The District did not explain to the parents that this would mean that Frederick would no
25 longer receive special education services. Worse, having first convinced the parents to accept a
26 Section 504 plan, MHUSD then never implemented it.
27

64.

It was not until 2011 that the District agreed to reconsider special education

28 eligibility. Once undertaken, it failed to consider all of Fredericks needs and outside assessment
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1 and, once formulated, MHUSD did not provide his parents with an assessment plan in his parents
2 native language. The Districts March 15, 2011 assessment only included a speech and cognitive
3 analysis even though the District knew that this was not one of Fredericks areas of deficiency.
4 Indeed, MHUSD had previously denied him eligibility based on his academic performance.
5 Moreover, when MHUSD provided Frederick's parents with a progress on goals in November, it
6 failed to provide that information in their native language.
7

65.

Without appropriate educational services from the District, Frederick experienced

8 documented regression. Yet MHUSD failed to provide Extended School Year services as
9 required by the IDEA. The District failed Frederick in other fundamental ways. In 2009,
10 Fredericks desk was sequestered and facing a corner, surrounded by mounds of clutter, though it
11 was well documented that Frederick needs an uncluttered environment and behavioral support.
12 When his parents requested a copy of his records, MHUSD informed them that his entire file had
13 been lost.
14

66. Fredericks current IEP is lacking essential elements and is legally noncompliant.

15 Although Frederick takes a social skills class, for instance, the District has not documented this
16 class in his IEP nor has it established goals or objectives for him and his teachers to follow in
17 order to measure his progress in this critical area. Instead, the District has tasked his general
18 education teacher and his speech therapist, both of whom lack the necessary training and are not
19 guided by specifically articulated written goals, with responsibility for his learning social skills.
FRITZ Q.

20
21

67.

Fritz Q., a 15-year-old student with ADHD and Specific Learning Disability, is

22 poised to graduate from high school. However, MHUSD has failed to provide him with the skills
23 needed to navigate in a non-school environment. Not only did MHUSD fail to develop and
24 implement an appropriate transition plan, MHUSD did not offer him or others similarly situated
25 with the mandated life skills classes.
26

68.

Fritzs IEP requires daily communication between his teachers and Fritz's parents.

27 However, despite this, four of Fritzs six teachers do not communicate with his parents outside of
28 grading periods. In an effort to remedy this omission, the IEP team agreed at last years IEP
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1 meeting that his teachers would notify his parents if his grade in any subject dropped below a C.
2 Despite the agreement, his parents did not receive any notification prior to Fritz receiving a D on
3 his progress report.
4

69.

The District has failed to provide Fritz with the required and necessary support. It

5 has not, for instance, included in his IEP an appropriate transition plan to aid Fritz in his
6 development as a gainfully employed adult. Nor did MHUSD offer essential life skills classes as
7 there were no teachers with the appropriate training. Nor has the District responded to Fritzs
8 increased need for emotional and behavioral support services after the drive-by killing of a fellow
9 studentthis, despite MHUSDs public announcement that it would offer counseling to any
10 student who wanted it.
11

70.

The District has also discouraged his parents involvement in his education. On

12 March 16, 2011, the District case manager gave Fritzs parents less than 24 hours notice of an IEP
13 meeting. Although his parents advised they were unable to attend, the District held an IEP
14 meeting the next day in their absence. The District then claimed that the unauthorized meeting
15 was not an IEP meeting and deleted references to it from Fritzs records. When MHUSD
16 suspended Fritz for allegedly damaging a plant, it failed to engage his parents either before or
17 after the suspension.
SAMANTHA C.

18
19

71.

Samantha C., a 12-year-old girl, has Auditory Processing Disorder (APD),

20 Specific Learning Disability and Apraxia. MHUSD initially neglected its IDEA obligations to
21 Samantha by failing to assess her, and then refused to accurately assess her. As her education
22 progressed, MHUSD accommodated Samanthas educational challenges by permitting her to
23 advance rather than provide the support services she needed to meaningfully learn.
24

72.

In September 2006, when the District was aware that Samantha had mild hearing

25 loss and APD, it neglected to assess her hearing. Subsequent assessments similarly failed to
26 address all areas of need. To date, Samantha has never had a complete assessment by the District.
27 Indeed, Samantha was only made eligible for special education in 2010, after years of delay by
28 the District, because Samanthas parents solicited and paid for independent evaluations.
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73.

Filed 12/29/11 Page 26 of 31

Samantha is struggling in math. However, rather than use the IEP process to

2 determine how best to ensure that Samantha is being properly educated in math, her teacher is
3 giving Samantha extra credit based on her effort and as a result, she is currently passing the
4 class despite having scores in the 30-40% accurate range. Grade inflation is not a proper
5 substitute for providing Samantha with the education she is entitled to under the IDEA and other
6 applicable laws.
7

74.

Samanthas IEP calls for the provision of occupational therapy. However, the

8 District has failed to provide her with this therapy. Similarly, although her IEP calls for the use
9 of a computer (a change made by the District rather than agree to Samanthas mothers request
10 for an adaptive technology assessment to accommodate Samanthas handwriting), the District has
11 not provided her with a computer for class time and has not provided her with instruction on
12 keyboarding skills.
13

75.

Based on her educational performance, Samanthas parents determined that it was

14 appropriate to make a claim for compensatory education. In order to prepare the claim,
15 Samanthas parents sought her records from the District. The District never responded to her
16 parents request.
ALICIA M.

17
18

76.

Alicia M., a six-year-old student with Autism and other profound learning

19 challenges, was only recently assessed despite her parents repeated requests for an assessment.
20 Exploiting the fact that her parents are not native English speakers, the District has effectively
21 prevented them from developing a meaningful educational plan for Alicia. MHUSD also withheld
22 crucial information from the parents, including the fact that Alicia had been physically restrained
23 in the classroom on more than one occasion. The District has failed Alicia in numerous ways,
24 including the following:
25

77.

Alicia was not assessed until recently. Had she been timely assessed, Alicia would

26 have been placed in an Autism Spectrum Disorder (ASD) Special Day Class (SDC) run by
27 the District. Instead, she was placed in a non-categorical SDC where children with varying
28 disabilities receive the same treatment and instruction from untrained teachers and aides. At the
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1 time of the placement, Alicia had no IEP and no IEP team to discuss the educational services
2 necessary to address her specific needs, what trained teacher(s) she would need and what an
3 appropriate placement for her might be.
4

78.

After Alicia graduated from preschool, she still had not been assessed and was

5 placed in her neighborhood general education school, P.A. Walsh. Two days later, after learning
6 that Alicia had graduated from the Special Day Class, P.A. Walshs principal had her transferred
7 to a non-categorical special education class in Jackson Elementary School. Alicias parents
8 belatedly learned that in order to stop Alicias occasional fidgeting in class, one of her teachers at
9 that school had repeatedly tied her and two other students to their chairs. The District did not
10 inform her parents about the recurring incidents of unauthorized physical restraint. Alicias
11 parents instead learned about them from the police. Subsequently, at the Districts instigation and
12 instruction, the police stopped cooperating with Alicias parents. During the police investigation,
13 a District official acknowledged that Alicia had Autismdirectly contradicting its persistent
14 refusal to make her eligible for, and provide, Autism-related support services.
15

79.

Following the police investigation, the teacher who had restrained Alicia was

16 removed from her classroom. Rather than using the dismissal as an opportunity to address
17 Alicias educational needs, however, the District elected not to replace the dismissed teacher with
18 another teacher. For a time, untrained teacher aides alone provided Alicias sole instruction. Her
19 parents have requested that Alicia obtain instruction from a fully credentialed and properly
20 trained teacher, but the District has ignored their requests.
JOHN D.

21
22

80.

John is almost three and has been assessed with high-functioning Autism. He

23 currently receives services, including speech therapy, through the San Andreas Regional Center.
24 When he turns three, MHUSD will become responsible for his education and support services.
25 Recently, his parent attended an IEP meeting with District officials to discuss Johns placement
26 and support services.
27

81.

When his parent arrived at the meeting, the IEP had already been filled out,

28 identifying a number of needs for John and placing him in the Autism Spectrum Disorder Special
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1 Day Class. Placement in the ASD SDC was entirely inappropriate for John. Because he is a
2 child with high-functioning Autism, an appropriate placement would require access to general
3 education with appropriate supports. A placement with lower-functioning children only in the
4 ASD SDC, on the other hand, would cause John to regress socially and emotionally. When
5 Johns parent challenged his placement in the ASD SDC, although District staff acknowledged
6 that this placement was inappropriate, they went on to systematically cross out previously
7 identified needs without explanation. The implication was nevertheless clear: either his parents
8 would accept Johns placement in the overly restrictive ASD SDC or he would be placed in a
9 non-District facility where the District would refuse to provide any services.
COLLECTIVE LESSONS FROM THE INDIVIDUAL STUDENTS STORIES

10

82.

11

As more fully detailed at Paragraph 13, supra, and as collectively evidenced by the

12 stories of each of these children, the District has particularly disadvantaged three groups of
13 children with disabilities (infants with high-functioning Autism; academically-performing but
14 emotionally challenged children; and students who are poised to graduate from high school and
15 embark on an independent life without the skills or emotional resources needed to succeed) but its
16 systemic failure to provide FAPE invades every level of the IDEAs mandates. In reading the
17 experiences of these children, it becomes apparent that the Districts failure to meet their needs is
18 the consequence of a highly cynical calculationthat is, that few if any parents have the
19 background, resources or skills to, first, recognize the inequities of the Districts evaluations and
20 placements and, second, to fight the District to gain the services to which their children are
21 statutorily entitled and withstand the Districts threats and intimidation tactics. CDE should have
22 intervened years ago; it cannot be allowed to continue to sit on the sidelines as an entire district of
23 school children with disabilities goes unserved.
24 //
25

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26
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28

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SAGY LAW
ASSOCIATES

COMPLAINT

Case 2:11-cv-03471-KJM-EFB Document 1

Filed 12/29/11 Page 29 of 31

WHEREFORE, PLAINTIFF ALLEGES THE FOLLOWING CAUSES OF ACTION:

1
2

FIRST CAUSE OF ACTION

Failure to Ensure the Provision of FAPE

(Violations of the Individuals with Disabilities Education Improvement Act,

20 U.S.C. 1400 et. seq.)


83.

Plaintiff realleges and incorporates by reference as though fully set forth herein

7 paragraphs 1 through 82 above.


84.

By the acts and omissions alleged herein, Defendants have violated Plaintiffs

9 rights under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. 1400 et
10 seq., and its implementing regulations at 34 C.F.R. Part 300, and the California Education Code
11 56000 et seq. to receive a free appropriate public education in the least restrictive environment.
12 Defendants failed to ensure the provision of, or directly provide, FAPE to children with
13 disabilities.
14

SECOND CAUSE OF ACTION

15

Failure to Investigate

16

(Violations of the Individuals with Disabilities Education Improvement Act,

17

20 U.S.C. 1400 et. seq.)


85.

18

Plaintiff realleges and incorporates by reference as though fully set forth herein

19 paragraphs 1 through 84, above.


86.

20

By the acts and omissions alleged herein, Defendants have violated Plaintiffs

21 rights under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. 1400 et
22 seq., and its implementing regulations at 34 C.F.R. Part 300, and the California Education Code
23 56000 et seq. Defendants failed to properly investigate the Districts provision of FAPE to
24 children with disabilities.
25 //
26 //
27

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28
-29SAGY LAW
ASSOCIATES

COMPLAINT

Case 2:11-cv-03471-KJM-EFB Document 1

Filed 12/29/11 Page 30 of 31

THIRD CAUSE OF ACTION

Failure to Monitor

(Violations of the Individuals with Disabilities Education Improvement Act,

20 U.S.C. 1400 et. seq.)

87.

Plaintiff realleges and incorporates by reference as though fully set forth herein

6 paragraphs 1 through 86, above.


7

88.

By the acts and omissions alleged herein, Defendants have violated Plaintiffs

8 rights under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. 1400 et
9 seq., and its implementing regulations at 34 C.F.R. Part 300, and the California Education Code
10 56000 et seq. Among other things, Defendants failed to appropriately and effectively monitor
11 MHUSDs compliance with special education mandates and ensure timely correction of
12 noncompliance once identified.
FOURTH CAUSE OF ACTION

13

(Violations of California Education Code 56000, et seq.)

14
15

89.

Plaintiff realleges and incorporates by reference as though fully set forth herein

16 paragraphs 1 through 88, above.


17

90.

By the acts and omissions alleged herein, Defendants, and each of them, have

18 violated Plaintiffs rights to a free appropriate public education in the least restrictive
19 environment guaranteed under the California Education Code 56000, et seq., and the regulations
20 promulgated thereunder, 5 CCR 3000, et seq.
RELIEF REQUESTED

21
22

Wherefore, Plaintiff respectfully requests the entry of judgment in its favor and granting

23 the following relief:


24

1.

Declaring, pursuant to 28 U.S.C. 2201, that Defendants have violated the rights

25 of children with disabilities protected under the Individuals with Disabilities Education
26 Improvement Act, 20 U.S.C. 1400 et seq. and California Education Code 56000 et seq.;
27

2.

Permanently enjoining Defendants from violating the rights of children with

28 disabilities protected under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et
-30SAGY LAW
ASSOCIATES

COMPLAINT

Case 2:11-cv-03471-KJM-EFB Document 1

Filed 12/29/11 Page 31 of 31