Adam newman

C e r r i t o s • F r e s n o • I r v i n e • P l e a s a n t o n • R i v e r s i d e • S a c r a m e n t o • S a n D i e g o

A Year in Review

ACSA 2014 Every Child Counts Symposium January 15-17, 2014

Presented by: Adam Newman, Senior Partner Sundee Johnson, Partner Jennifer Fain, Partner


Cerritos Office 12800 Center Court Drive Suite 300 Cerritos, California 90703

(562) 653-3200 Phone (562) 653-3333 Fax www.aalrr.com

Irvine Office 20 Pacifica, Suite 400 Irvine, California 92618

(949) 453-4260 Phone (949) 453-4262 Fax

ADAM J. NEWMAN Senior Partner [email protected] Education Law Experience Adam Newman is a senior partner in the Cerritos and Irvine offices of Atkinson, Andelson, Loya, Ruud & Romo. Mr. Newman is co-chair of the firm’s state-wide Special Education Practice Group. Mr. Newman has many years of experience advising and representing public school districts, SELPAs and county offices of education in all aspects of special education, Section 504, student discipline and general student matters. Mr. Newman also serves as legal advisor to administrative hearing panels in student expulsion cases. Mr. Newman is an active presenter, conducting approximately 25-40 presentations per year for public school agencies and organizations such as CSBA, ACSA, CASCWA, etc. Mr. Newman began his legal career in 1993 as a Deputy City Attorney for the City of Huntington Beach. In that capacity, Mr. Newman’s practice was devoted to employment litigation, administrative hearings and defense of unfair labor practices under California’s public sector collective bargaining law. Mr. Newman succeeded in the Court of Appeal regarding collective bargaining management rights and retirement issues.

In 2005 and 2006 Mr. Newman was named a "Southern California Rising Star" by Law & Politics and Los Angeles Magazine, based on the top 2.5% of a poll of selected Southern California lawyers. This recognition honors exceptional Southern California attorneys who are under the age of 40.

Education Mr. Newman received his Bachelor of Arts degree from the University of California, Irvine, and his Juris Doctor from the University of the Pacific, McGeorge School of Law. Admission 1993, California Memberships State Bar of California Publications and Speaking Engagements Mr. Newman is an active contributor to the firm’s various newsletters and publications.


Cerritos Office 12800 Center Court Drive Suite 300 Cerritos, California 90703


SUNDEE M. JOHNSON Partner [email protected] Education Law Experience Sundee Johnson is a partner in the Cerritos, Irvine and San Diego offices of Atkinson, Andelson, Loya, Ruud & Romo. Ms. Johnson represents California school and community college districts in education law, including disability accommodation, special education, student discipline, and charter school matters. She also handles and/or litigates special education due process hearings, Section 504 complaints, CDE compliance complaints, and discrimination claims. Ms. Johnson conducts investigations into allegations of discrimination and misconduct. She is also a frequent trainer and speaks on a wide range of issues affecting California public schools. Since 2009, Ms. Johnson has been named a "Southern California Rising Star," and in 2013, Ms. Johnson was added to the list of “Top Women Attorneys in Southern California,” by Super Lawyers, a national rating service of exceptional lawyers and based on a poll of selected Southern California lawyers. Education Ms. Johnson received her Bachelor of Arts degree in Psychology from the University of Washington and her Juris Doctor from Pepperdine University School of Law. Admissions 2003, California Memberships State Bar of California Publications and Speaking Engagements Ms. Johnson is an active contributor to the firm’s various newsletters and publications. Ms. Johnson frequently presents at workshops and provides training to districts.


Pleasanton Office 5075 Hopyard Road Suite 210 Pleasanton, California 94588


JENNIFER R. FAIN Partner [email protected]

Education Law | Special Education Section 504 | Student Issues Experience Jennifer Fain is a partner in the Pleasanton office of Atkinson, Andelson, Loya, Ruud & Romo. Her practice focuses on representing educational agencies in the areas of special education and anti-discrimination. Ms. Fain’s experience includes the successful representation of school agencies at every stage of the litigation process, including mediation sessions, administrative hearings, and federal court proceedings. In addition to handling matters in litigation, Ms. Fain also works with clients proactively to develop preventive practices to help avoid costly disputes, including reviewing current policies, practices, and procedures for systemic issues and legal compliance. To further assist clients in avoiding litigation, she offers in-service trainings for school personnel on a variety of issues relating to special education and disability law. She also has spoken at both state and national levels on special education legal issues. Prior to joining Atkinson, Andelson, Loya, Ruud & Romo, Ms. Fain was a partner at The Weatherly Law Firm where, for eleven years, she represented educational agencies across the country in all facets of special education and anti-discrimination law. Education Ms. Fain received her Bachelor of Arts degree magna cum laude from Emory University, and her Juris Doctor, cum laude from the University of Georgia. Admissions 2000, Georgia 2005, California

1© 2014 Atkinson, Andelson, Loya, Ruud & Romo

A Year in Review

Cerritos • Fresno • Irvine • Riverside • Pleasanton • Sacramento • San DiegoCerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego

A Year in Review

ACSA 2014 Every Child Counts SymposiumJanuary 15-17, 2014

Presented by:

Adam Newman, Senior PartnerSundee Johnson, PartnerJennifer Fain, Partner

Agenda

• US Supreme Court Update

• Ninth Circuit Cases

• District Court Cases

• California Supreme Court Cases

• OAH Decision

• Legislation

1

Federal Court Hierarchy

2

District Court

Ninth Circuit

US Supreme Court


A Year in Review

US Supreme Court

3

US Supreme Court Update

4

The court declined to hear three specialeducation cases:

• Ebonie S. v. Pueblo School District

• Klein Ind. School District v. Hovem

• R.E. v. NYC Department of Education

Ninth Circuit Cases

5


A Year in Review

Ninth Circuit Cases

6

Walhovd v. Bellflower Unified School District

District appealed two issues:

1. District court’s decision, which reversed part of ALJ’s decision

2. Award of $57,231.25 in attorney’s fees

Ninth Circuit Cases

7

Walhovd

District lost on both issues:

1. Failure to timely appeal

2. Student was a “prevailing party” and therefore entitled to fees

Ninth Circuit Cases

8

Doug C. v. State of Hawaii Department of Ed

• Parent was unable to attend an IEP meeting due to illness

• Student’s annual IEPdeadline was in four days


A Year in Review

Ninth Circuit Cases

9

Doug C.

• The ED went forward with the annual

• Student’s placement was changed from a private special education facility to a program at a public high school

Ninth Circuit Cases

10

Doug C.

Parental involvement in the “creation process” requires the LEA to include the parents in an IEP

meeting, unless they affirmatively refused to attend.

Ninth Circuit Cases

11

Doug C.

After the fact, parental involvement

is NOT enough.


A Year in Review

Ninth Circuit Cases

12

K.M. v. Tustin Unified School District

Compliance with the IDEA does not necessarily establish compliance under Title II of the ADA with respect to a school district’s effective communication obligations to a student.

Ninth Circuit Cases K.M.

13

Compliance

with IDEACompliance

with ADA

Ninth Circuit Cases K.M.

14

IDEA“Modest”

Substantive Requirements

ADA“Primary

Consideration” Given to Student’s

Communication Preferences


A Year in Review

Ninth Circuit Cases

15

A.D. v. State of Hawaii Department of Ed

Student was entitled to remain in his educational placement under “stay-put” during the pendency of his complaint even though he was no longer eligible.

Ninth Circuit Cases

16

A.D.

• 20-year-old student filed six weeks prior to the end of the 2010-2011 school year

• Student challenged state law terminating his eligibility at the end of the school year

• Moved for stay-put in January 2012

• Turned 22 in May 2013

Ninth Circuit Cases

17

A.D.

• Stay-put order is immediately appealable

Compare: M.M. v. Lafayette School District 9th Cir. Decision in June 2012

• Stay-put “preserves the student’s eligibility until the dispute is resolved”


A Year in Review

District Court Cases

18


19

B.M. v. Encinitas Union School District

Student challenged the ALJ’s decision

1. “Some benefit” vs. “Meaningful benefit”

2. Student witnesses’ testimony

3. LRE standard

4. Not impartial


20



1. “Some benefit” = “Meaningful benefit”

2. Student witnesses’ testimony

3. LRE standard

4. Not impartial


A Year in Review


21




2. Student witnesses’ testimony-post hoc

3. LRE standard

4. Not impartial


22





3. LRE standard – correctly applied

4. Not impartial


23





3. LRE standard – correctly applied

4. Not impartial


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24


25

Smith v. Harrington

No valid Section 1983 claim based on alleged failure to protect special education student with Tourette’s syndrome from bullying by classmates.


26

Smith

Failure to Train

State employees’ failure to protect an individual against private violence does not constitutea violation of the Due Process Clause.


A Year in Review


27

Smith

Exceptions

• Involuntary state custody

– Does not include compulsory attendance

• Affirmatively placed in dangerous situation

– Does not include merely failing to act


28

Smith

Supervisory Liability

or

Personal Involvement

Sufficient Casual Connection


29

M.M. v. San Ramon Valley Unified School District

• Mainstreaming offered in student’s IEP did not provide her with a non-academic benefit as required under the IDEA.

• ALJ erred in relying on District witness testimony that student would benefit from mainstreaming.


A Year in Review

District Court CasesM.M.

No guarantee of support on any given day

Mother testified that general education peers refused to socialize with student in the past

Private school director testified that student required significant support for social participation

An offer of FAPE must be specific

30


31

Anaheim Union School District v. J.E.

District should have conducted a manifestation determination review for 10th grade student not yet eligible for special education before moving him to an alternative school.


32

J.E.

Deemed to have knowledgeof student’s disability when staff expressed

specific concerns about a Pattern of Behavior

A “pattern of behavior” does not refer only to disciplinary issues


A Year in Review


33

Pattern of BehaviorPattern of Behavior

Failing GradesInability to Remain in

Class

Unable to Complete Work

Panic Attacks

Staff does not have to specifically state that the child is in need of special education or should be evaluated.

J.E.


34

J.B. v. San Jose Unified School District

• District withdrew its request for due process without prejudice on student’s right to an IEE following settlement.

• Student sought attorney’s fees following withdrawal.

• Court denied District’s motion to dismiss, finding that student had alleged sufficient facts to state a claim that he was a prevailing party.

35

“Unnecessary Delay”

District would be precluded from re-filing after waiting seven months

District Court Cases J.B.


A Year in Review


36

• Voluntary withdrawal caused a change in the legal relationship between parties.

• District had no more right to further contest the IEE.

J.B.


37

A.R. v. Santa Monica-Malibu USD

• Offer of collaborative classroomplacement for student withautism provided FAPE.

• Parents unilaterally placedstudent in private school with a1:1 aide.


38

A.R.

FAPE = Best Education Possible


A Year in Review


39

A.R.

• Special ed teacher and experts believed that student was not ready for general education.

• He would need constant assistance and would become dependent.


40

G.R. v. Brentwood Union School District

• Parents were still entitled to attorney’s fees even though district’s 10-day offer included more tuition reimbursement than ALJ’sorder.

• Parents were “substantially justified” in rejecting district’s 10-day settlement offer.


41

G.R.

ALJ award was more favorable than district’s 10-day offer because:

1. ALJ ordered placement in a less restrictive classroom

2. Parents’ right to challenge actions for the 12-13 SY was preserved


A Year in Review


42

US District, Court Middle District of PA:Hamilton v. Spriggle

The court denied the defendants’ motionfor summary judgment, allowing student tomove forward with his Section 1983 claim.


43

Hamilton

“State created danger” theory

1. Harm ultimately caused was foreseeable and fairly direct

2. State actor acted with a degree of culpability that shocks the conscious

3. Plaintiff and state had relationship that made Plaintiff a foreseeable victim, or subject to potential harm

4. State actor affirmatively used authority in a way that created a danger or made Plaintiff more vulnerable

California Supreme Court Cases

44


A Year in Review


45

American Nurses Association v. Torlakson

14,000Students in California are diabetic

1 School Nurse: 2,200 Public School Students


46


47

American Nurses Association v. Torlakson

California law permits trained, unlicensed school personnel to administer insulin when:

1. Authorized by student’s treating physician; and

2. Given written parental consent


A Year in Review

OAH Decisions

48

OAH Decisions

49

Student v. Hollister School District

• General education placement with a one-to-one aide for kindergartner with Down Syndrome was not appropriate.

• Curriculum could not be modified to a level that student would obtain a benefit, even with a one-to-one aide.

“Class within a class”

“Meaningful inclusion”

OAH Decisions

50

Hollister

The lack of a general education teacher on the IEP team meant that the team did not adequately consider a general education placement, which meant the team was unable fully to consider placing student in a general education setting with services and supports.”


A Year in Review

OAH Decisions

51

Hollister

Remedy: 46 hours

Extracurricular Activity

or

Social Skills

OAH Decisions

52

Student v. Poway Unified Sch. Dist.

District had the right to assess autistic student’s cognition over parent’s objection.

OAH Decisions

53

Poway

School districts are required to ensure that an evaluation is sufficiently comprehensive to identify all needs whether or not commonly linked to student’s eligibility category.


A Year in Review

OAH Decisions

54

Poway

The standard is not whether the assessment is necessary to develop an offer of FAPE, but whether the district determined the assessment is required to meet its legal obligation to identify all of the student’s needs.

OAH Decisions

55

Poway

Student filed a motion for a preliminary injunction with the District Court

Unlikely to prevail on the merits

Alleged irreparable harm was speculative at best

Legislation

56


A Year in Review

Legislation

57

AB 86Repeal of Hughes Bill

Retroactive ReimbursementFIRST DEADLINE:

Nov. 21, 2013

Effective July 1, 2013

SB 744Involuntary transfers to community day schools Effective September 18, 2013

AB 1226Access based on gender identity

Effective January 1, 2014

58

• Ebony S. v. Pueblo Sch. Dist. (10th Cir., Aug 2012) 695 F.3d 1051;59 IDELR 181 (Cert. denied Mar 2013)

• Klein Ind. Sch. Dist. v. Hovem (5th Cir., Aug 2012) 690 F.3d 390; 59 IDELR 121 (Cert. denied Mar 2013)

• R.E. v. New York City Dept. of Educ. (2nd Cir., Sept 2012) 694 F.3d 167; 59 IDELR 241

• Wallhovd v. Bellflower Unified Sch. Dist. (9th Cir., Jun 2013) 690 F.3d 390; 61 IDELR 94

• Doug C. v. State of Hawaii Dept. of Educ. (9th Cir., Jun 2013) 720 F.3d 1038; 61 IDLER 91

• K.M. v. Tustin Unified Sch. Dist. (9th Cir., Aug 2013) 725 F.3d 1088; 61 IDELR 182

Citations

59

• A.D. v. State of Hawaii Dept. of Educ. (9th Cir., Aug 2013) 61 IDELR 181

• B.M. v. Encinitas Union Sch. Dist. (S.D. Cal., Feb 2013), Order Affirming Decision and Directing Entry of Judgment, 60 IDELR 188

• Smith v. Harrington (N.D. Cal., Mar 2013), Order Granting Defendant’s Motion to Dismiss Plaintiff’s Third Amended Complaint, 60 IDELR 276

• M.M. v. San Ramon Valley Unified Sch. Dist. (N.D. Cal., Apr 2013), Order Re Motions for Summary Judgment, 61 IDELR 39

• Anaheim Union High Sch. Dist. v. J.E. (N.D. Cal., May 2013) 61 IDELR 107

• J.B. v. San Jose Unified Sch. Dist. (N.D. Cal., May 2013), Order Denying Defendant’s Motion to Dismiss, 113 LRP 19806

Citations


A Year in Review

60

• A.R. v. Santa Monica-Malibu Unified School District (C.D. Cal., Aug 2013) 61 IDELR 213

• G.R. v. Brentwood Union Sch. Dist. (N.D. Cal., Jul 2013), Order Granting in Part and Denying in Part Motion for Attorneys’ Fees, 61 IDELR 124

• Hamilton v. Spriggle (M.D. PA, Aug 2013), Order Denying Motion for Summary Judgment, 61 IDELR 251

• American Nurses Ass’n v. Torlakson (Aug 2013) 57 Cal. 4th 570, 61 IDELR 230

• Student v. Hollister Sch. Dist. (Jan 2013) OAH Case No. 2012080366

• Student v. Poway Unified School District (May 2013) OAH Case Nos. 20130200661, 2012100261

• Haowen Z. v. Poway Unified Sch. Dist. (S.D. Cal., Aug 2013), Order Denying Plaintiff’s Motion for a Preliminary Injunction

Citations

Thank You

61

Adam newman

Education

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