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Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
Adam newman
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Adam newman

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  • 1. 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 • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego
  • 2. Cerritos Office 12800 Center Court Drive Suite 300 Cerritos, California 90703 (562) 653-3200 (562) 653-3333 www.aalrr.com Phone Fax Irvine Office 20 Pacifica, Suite 400 Irvine, California 92618 (949) 453-4260 (949) 453-4262 Phone Fax ADAM J. NEWMAN Senior Partner anewman@aalrr.com 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 • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego
  • 3. Cerritos Office 12800 Center Court Drive Suite 300 Cerritos, California 90703 (562) 653-3200 (562) 653-3333 www.aalrr.com Phone Fax SUNDEE M. JOHNSON Partner sjohnson@aalrr.com 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. Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego
  • 4. Pleasanton Office 5075 Hopyard Road Suite 210 Pleasanton, California 94588 (925) 227-9200 (925) 227-9202 www.aalrr.com Phone Fax JENNIFER R. FAIN Partner jfain@aalrr.com 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 Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego
  • 5. A Year in Review 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 • Fresno • Irvine • Pleasanton • Riverside Cerritos • Fresno • Irvine •San Diego • Pleasanton • Sacramento • San Diego • Sacramento • Riverside Agenda • US Supreme Court Update • Ninth Circuit Cases • District Court Cases • California Supreme Court Cases • OAH Decision • Legislation 1 Federal Court Hierarchy US Supreme Court Ninth Circuit District Court 2 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 1
  • 6. A Year in Review US Supreme Court 3 US Supreme Court Update The court declined to hear three special education cases: • Ebonie S. v. Pueblo School District • Klein Ind. School District v. Hovem • R.E. v. NYC Department of Education 4 Ninth Circuit Cases 5 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 2
  • 7. A Year in Review Ninth Circuit Cases 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 6 Ninth Circuit Cases Walhovd District lost on both issues: 1. Failure to timely appeal 2. Student was a “prevailing party” and therefore entitled to fees 7 Ninth Circuit Cases Doug C. v. State of Hawaii Department of Ed • Parent was unable to attend an IEP meeting due to illness • Student’s annual IEP deadline was in four days 8 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 3
  • 8. A Year in Review Ninth Circuit Cases 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 9 Ninth Circuit Cases 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. 10 Ninth Circuit Cases Doug C. After the fact, parental involvement is NOT enough. 11 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 4
  • 9. A Year in Review Ninth Circuit Cases 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. 12 Ninth Circuit Cases K.M. Compliance with IDEA Compliance with ADA 13 Ninth Circuit Cases K.M. IDEA ADA “Modest” Substantive Requirements “Primary Consideration” Given to Student’s Communication Preferences 14 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 5
  • 10. A Year in Review Ninth Circuit Cases 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. 15 Ninth Circuit Cases 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 16 Ninth Circuit Cases 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” 17 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 6
  • 11. A Year in Review District Court Cases 18 District Court Cases 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 19 District Court Cases B.M. v. Encinitas Union School District Student challenged the ALJ’s decision 1. “Some benefit” = “Meaningful benefit” 2. Student witnesses’ testimony 3. LRE standard 4. Not impartial 20 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 7
  • 12. A Year in Review District Court Cases B.M. v. Encinitas Union School District Student challenged the ALJ’s decision 1. “Some benefit” = “Meaningful benefit” 2. Student witnesses’ testimony-post hoc 3. LRE standard 4. Not impartial 21 District Court Cases B.M. v. Encinitas Union School District Student challenged the ALJ’s decision 1. “Some benefit” = “Meaningful benefit” 2. Student witnesses’ testimony-post hoc 3. LRE standard – correctly applied 4. Not impartial 22 District Court Cases B.M. v. Encinitas Union School District Student challenged the ALJ’s decision 1. “Some benefit” = “Meaningful benefit” 2. Student witnesses’ testimony-post hoc 3. LRE standard – correctly applied 4. Not impartial 23 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 8
  • 13. A Year in Review District Court Cases 24 District Court Cases 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. 25 District Court Cases Smith Failure to Train State employees’ failure to protect an individual against private violence does not constitute a violation of the Due Process Clause. 26 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 9
  • 14. A Year in Review District Court Cases Smith Exceptions • Involuntary state custody – Does not include compulsory attendance • Affirmatively placed in dangerous situation – Does not include merely failing to act 27 District Court Cases Smith Supervisory Liability Personal Involvement or Sufficient Casual Connection 28 District Court Cases 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. 29 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 10
  • 15. A Year in Review District Court Cases M.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 District Court Cases 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. 31 District Court Cases J.E. Deemed to have knowledge of student’s disability when staff expressed specific concerns about a Pattern of Behavior A “pattern of behavior” does not refer only to disciplinary issues 32 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 11
  • 16. A Year in Review District Court Cases J.E. Inability to Remain in Class Failing Grades Pattern of Behavior 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. 33 District Court Cases 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. 34 District Court Cases J.B. “Unnecessary Delay” District would be precluded from re-filing after waiting seven months 35 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 12
  • 17. A Year in Review District Court Cases J.B. • Voluntary withdrawal caused a change in the legal relationship between parties. • District had no more right to further contest the IEE. 36 District Court Cases A.R. v. Santa Monica-Malibu USD • Offer of collaborative classroom placement for student with autism provided FAPE. • Parents unilaterally placed student in private school with a 1:1 aide. 37 District Court Cases A.R. FAPE = Best Education Possible 38 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 13
  • 18. A Year in Review District Court Cases 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. 39 District Court Cases 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’s order. • Parents were “substantially justified” in rejecting district’s 10-day settlement offer. 40 District Court Cases 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 41 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 14
  • 19. A Year in Review District Court Cases US District, Court Middle District of PA: Hamilton v. Spriggle The court denied the defendants’ motion for summary judgment, allowing student to move forward with his Section 1983 claim. 42 District Court Cases 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 43 California Supreme Court Cases 44 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 15
  • 20. A Year in Review California Supreme Court Cases American Nurses Association v. Torlakson 14,000 Students in California are diabetic 1 School Nurse: 2,200 Public School Students 45 California Supreme Court Cases 46 California Supreme Court Cases 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 47 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 16
  • 21. A Year in Review OAH Decisions 48 OAH Decisions 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” 49 OAH Decisions 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.” 50 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 17
  • 22. A Year in Review OAH Decisions Hollister Remedy: 46 hours Extracurricular Activity or Social Skills 51 OAH Decisions Student v. Poway Unified Sch. Dist. District had the right to assess autistic student’s cognition over parent’s objection. 52 OAH Decisions 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. 53 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 18
  • 23. A Year in Review OAH Decisions 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. 54 OAH Decisions 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 55 Legislation 56 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 19
  • 24. A Year in Review Legislation AB 86 Repeal of Hughes Bill Retroactive Reimbursement FIRST DEADLINE: Nov. 21, 2013 Effective July 1, 2013 SB 744 Involuntary transfers to community day schools AB 1226 Access based on gender identity Effective September 18, 2013 Effective January 1, 2014 57 Citations • 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 58 Citations • 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 59 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 20
  • 25. A Year in Review Citations • 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 60 Thank You 61 © 2014 Atkinson, Andelson, Loya, Ruud & Romo 21

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