Copyright 1999 Times Mirror Company
Los Angeles
Times
October 13, 1999, Wednesday, Home Edition
SECTION: Part A; Page 1; Metro Desk
LENGTH: 2364 words
HEADLINE:
COLUMN ONE;
DISABLED PUPILS GET THEIR DAY IN COURT;
AS MORE
PEOPLE SUE TO GET MANDATED SPECIAL EDUCATION FOR THEIR KIDS, PUBLIC SCHOOLS SAY
THEY LACK NEEDED FUNDS AND STAFF, AND ACCUSE SOME PARENTS OF ABUSING THE LAW.
BYLINE: MAURA DOLAN, TIMES LEGAL AFFAIRS WRITER
BODY:
Parents of children with disabilities,
frustrated over the often skimpy special education offerings of public schools,
are increasingly suing to obtain tutoring, classroom aides and even private
school at district expense.
Children's advocates say these lawsuits,
based on a complex and procedure-laden federal law, are protecting pupils with
learning and other disabilities.
But school officials complain that some
parents abuse the process, demanding and often getting pricey and experimental
therapies and using the law to shield some children from discipline for bad,
even threatening, behavior.
These district representatives maintain that
the schools have neither the money nor specialized staff to meet their legal
obligations to special education students.
Although lawsuits against
educational institutions nationwide have been declining, litigation involving
special education continues to rise. Parents of special education students bring
lawyers to school meetings, and teachers complain that they have had to learn
not to be intimidated when these meetings are tape-recorded. "Our traditional
view of education is cooperation between parents and districts," said Perry A.
Zirkel, a professor of education and law at Lehigh University in Pennsylvania.
"Legalization works on an adversarial model. . . . Sometimes you lose sight of
the kids."
In one case now on appeal, a school district in Santa Barbara
County was ordered to pay the educational costs of a student in juvenile
detention at a residential facility for troubled boys.
Steven Wyner, the
boy's lawyer, said the 14-year-old developed emotional and behavioral problems
because the school district failed to provide him with appropriate services for
a learning disability. Severe emotional disturbance also is a qualifying
condition for special education.
The school had disciplined the boy for
such offenses as possession of a razor knife, choking another boy and telling a
teacher's aide to perform a sexual act on him, according to legal records.
Wyner contends that the district violated federal law by failing to
determine whether the learning disability triggered the emotional problems.
"Until some teachers and administrators start losing their houses," the
Santa Monica lawyer said, "nothing is going to change."
A study by
Lehigh's Zirkel found that special education lawsuits rose at a dramatic rate in
the 1980s and a "moderate" rate in the 1990s. About a third of education
litigation in federal courts in recent years has involved special education, his
study found.
Such disputes in California go through state mediation and
administrative law hearings before reaching the courts. In the 1994-95 school
year, 1,170 parents requested the trial-like hearings to settle special
education disagreements with districts. In 1997-98, the number had jumped to
1,700.
Glenn Fait, director of the California Special Education Hearing
Office, said about two-thirds of parents now retain lawyers for the hearings.
Thirty percent of the cases are brought over autistic students, whose numbers
have exploded in recent years and for whom services can be costly.
Alex
Baghdassarian turned to an attorney when the Glendale Unified School District
failed to approve services he said his daughter needed.
Karine, 4, is
mentally retarded and has delayed motor skills. A district official said she was
bound by confidentiality rules not to discuss Karine's case.
A lawyer
himself, Baghdassarian said he knew he required a legal specialist to ensure
that Karine received physical and speech therapy and one-on-one instruction.
"I'm in business litigation, and I don't pretend to understand all the
ramifications of the special education law and the state and federal
regulations," the Glendale resident said.
A Nightmare for School
Districts
School districts have been legally required for two decades to
provide a parent-approved individualized education plan tailored to meet the
needs of a student with disabilities.
If a public school lacks the
services, the district must pay for the child to attend a private school
approved by the state.
"The law makes a special ed student's education
based on their parents' consent," said schools lawyer Diana McDonough. "If you
think about that concept for just a little bit, you realize how fundamentally
contrary it is to public education."
For school districts, the increase
in litigation and threats of litigation has been a nightmare. If a district
loses a legal fight with a parent, the district must pay the parent's attorney
fees, which can run into hundreds of thousands of dollars.
In addition,
the government does not fully reimburse districts for the cost of mandated
services. On average, a district spends 2 1/2 times as much on a special
education student as on a general education student.
A state legislator
has estimated that nearly $ 1 billion is taken from general education coffers in
California to pay for mandated special education services for about 640,000
qualifying students.
"There used to be a stigma to being in special
education, so parents were reluctant to have their children evaluated," said
Ronald Wenkart, general counsel to the Orange County Department of Education.
"Now parents are pushing to have their children be declared disabled so they
have all kinds of services."
School district lawyers note that special
education status entitles students to additional time on standardized testing
and free tutoring.
"Parents want anything they think can give their kids
an edge," Wenkart said.
The disputes occasionally turn ugly. A Lakewood
father who had fought Orange County school officials over the educational plan
for his disabled son eventually took two school officials hostage last November
before he was shot and killed by police.
In San Bernardino County,
parent David Child, frustrated with the San Bernardino City Unified School
District's handling of his disabled son, filed complaints against the district
with federal and state agencies. The district eventually persuaded a court to
slap Child with a restraining order to keep him off school grounds.
Twenty-five years ago, children who were mentally retarded or afflicted
with obvious and severe handicaps were often placed in special schools or
institutions where learning was limited. Some remained at home.
Children
with learning disabilities were labeled slow, and they often succeeded only if
their parents had the wherewithal to hire private tutors.
That all
changed with congressional passage of the 1975 law that eventually became known
as the Individuals With Disabilities Education Act. It requires
public schools to provide the disabled with an "appropriate" education. Congress
reauthorized the law two years ago, and new regulations followed.
Vincent Madden, a special education assessment manager for the
California Department of Education, concedes that schools still fail to serve
special needs children well.
"For the most part, teachers and other
staff at local schools are underprepared to deal with students with
disabilities," he said.
Dr. Herbert Schreier, head of psychiatry at
Children's Hospital in Oakland, said many parents are aghast at the resistance
of school districts to provide services their children require.
"Lawyers
are desperately needed, because the schools are a disaster area," he said. "We
see inner-city kids with severe learning disabilities in third grade, and no one
has even picked it up."
Several families in the private Bay Area
practice of Dr. Deborah Sedberry have retained lawyers because school districts
are failing to provide promised services or even assessments, the developmental
pediatrician said.
District officials sometimes misrepresent to parents
what the law allows in an attempt to hold down costs, Sedberry said. Children
are entitled to special education if their ability, measured by an intelligence
test, is significantly higher than their performance and they have an identified
processing disorder, or if they are diagnosed with any of a variety of
disabilities, such as autism, named in the federal law.
After a Bay Area
school district finally agreed to assess one of Sedberry's patients for a
suspected learning disability, the principal summoned the child's mother to his
office, Sedberry said. By law, districts generally must test a child at a
parent's request.
" 'We are going to do this for your child,' " the
principal told her, according to Sedberry. " 'But we don't want you telling
other parents you can get this.' " The assessment revealed that the girl had
learning disabilities, the doctor said.
Tricia Crane, a Santa Monica
resident, said she finally withdrew her son, Rhys, 7, from his neighborhood
public school last year because the district refused to put him in a special
class for children with learning disabilities.
Rhys has multiple
learning disabilities, including an auditory processing difficulty. Crane and
her husband, a film producer, had spent thousands of dollars on private
tutoring, programs and an outside evaluation that she said uncovered numerous
mistakes in the school district's assessment.
Only after she hired a
lawyer did the school district become more accommodating, she said. With the
lawyer present, the district quickly offered her the public school class and a
special education therapy she had unsuccessfully begged for the year before, she
said.
But the lawyer is attempting instead to get the district to pay
the $ 26,000 tuition for the private school where Crane said Rhys is now
thriving. A district official failed to return telephone calls about the case.
"When people say, 'Why did you end up calling a lawyer?' well, it's an
accumulation of insults and condescension from school officials to the very
people who know the children the best, their parents," Crane said.
She
retained Sherman Oaks lawyer Valerie Vanaman, who has represented disabled
children for more than two decades, first as a lawyer with the nonprofit
Children's Defense Fund.
"If you probe deeply enough, the money may not
be nearly as much an issue as the fear that if this really
worked"--individualized education plans developed with parents--"then we are
going to have all these other parents clamoring for the same thing for their
children, and not inappropriately so," Vanaman said.
Exodus of Teachers
From the Field
The law's growing demands on special education have
triggered an exodus of professionals from the field, with the teacher shortage
particularly acute for special education instructors, according to state
education officials.
Many of the early pioneers in special education
have left the field, and special education administrators increasingly have
backgrounds in finance rather than education.
One Bay Area teacher left
special education last spring because half of her time was spent on paperwork
documenting decisions and meetings and in often uncomfortable encounters with
parents and their lawyers or advocates, said the teacher, who works in an urban
district and agreed to be interviewed only on the condition that her name not be
used.
She complained that her district regularly "caves in" to parental
demands for fear of expensive litigation. And parents, she said, have learned to
"shop around" for a diagnosis that will ensure that their child receives the
most services under the law.
"The mother tells me, 'I want my kid to go
to this private school,' " said the teacher. "She saw this doctor four or five
years ago, starts the kid back in therapy and then the doctor writes a report
saying the kid should go to that particular private school" at district expense.
Patty Arvin, a Solano County special education teacher for 22 years,
said she has been threatened and intimidated by parents and their lawyers.
"The way I see it," she said, "is they are grieving the loss of a normal
child they thought they might have, and they are in a system where there is not
enough money. . . . It has become us against them."
Under a recent U.S.
Supreme Court decision, school districts must perform medical services when
students require them. Arvin said she has fed a student through a tube in his
stomach, suctioned tracheae, given children oxygen and administered various
kinds of medicine.
In her classroom, she and aides change 18 to 24
diapers a day. "So I am not teaching very much," Arvin said.
Parents of
special education students sometimes retain lawyers to protect their children
from school suspensions. A special education student whose misbehavior is caused
by his disability cannot be disciplined as readily or as severely in California
as a general education student.
Orange County's Wenkart said affluent
parents of children with "criminal behavior problems" are increasingly pushing
to have their children in special education rather than in juvenile detention.
"They say the kids need to be in residential school programs for
behavioral modification that cost from $ 10,000 to $ 100,000 a year," the school
lawyer said. "We see a lot of that."
The state's hearing office has
twice refused to allow Orange County school officials to transfer two
learning-disabled boys to other schools, Wenkart said.
One boy had been
sexually harassing another student, and the other had been selling drugs on
campus, according to the school lawyer.
"They have really undermined the
ability of school districts to maintain safety," he contended.
Sedberry
sees the problem from the other side. The developmental pediatrician said one of
her patients has tics--he twitches violently on a frequent basis--and attention
deficit disorder.
She cannot give him medicine for the attention
problem, however, because it exacerbates his tics. His school has been
disciplining him for behavior that stems from his attention problem, she said.
"Where do you draw the line?" she asked. "It is frustrating for me,
frustrating for the family and frustrating for the district. I sympathize with
them, because they have this boy who is being very disruptive, and it is hard
for them to understand he can't control this."
GRAPHIC:
PHOTO: A court barred David Child, left, from school grounds after he filed
complaints against San Bernardino district over son Colin's education.
PHOTOGRAPHER: PERRY C. RIDDLE / Los Angeles Times
LOAD-DATE: October 13, 1999 
