morgan hills concerned parents v. california department of education complaint

Case 2:11-cv-03471-KJM-EFB Document 1-1 Filed 12/29/11 of 1

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SAGY LAW

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Rony Sagy (State Bar No. 112219)Sagy Law Associates 930 Montgomery Street Suite 600 San Francisco CA 94133 [email protected] Tel: 415-986-0900 Fax: 415-956-3950 Stephen A. Rosenbaum (State Bar No. 98634) 1716 Milvia Street Berkeley, CA 94709 [email protected] Tel: 510-644-3971 Attorneys for Plaintiff MORGAN HILL CONCERNED PARENTS ASSOCIATION

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

MORGAN HILL CONCERNED PARENTS ASSOCIATION, an unincorporated association, Plaintiff, v. CALIFORNIA DEPARTMENT OF EDUCATION, and DOES 1 through 5, Defendants.

CASE NO. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Jury Trial Requested

Plaintiff MORGAN HILL CONCERNED PARENTS ASSOCIATION, an unincorporated

association of parents of children with disabilities in the Morgan Hill Unified School District,

alleges as follows:

JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT

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

20 U.S.C. §1415(i)(ii) as the claims are asserted under the Individuals with Disabilities

Improvement Education Act (“IDEA”); and (b) 28 U.S.C. §§1331 and 1367 as the claims are

Case 2:11-cv-03471-KJM-EFB Document 1 Filed 12/29/11 Page 1 of 31

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asserted under the laws of the United States.

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

Department of Education resides in this judicial district and a substantial part of the events or

omissions giving rise to the claims occurred in this judicial district. This action is filed in the

Sacramento Division of this District pursuant to Local Rule 120(d) as the events underlying these

claims principally arose in the County of Sacramento.

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

Education’s failure to monitor, investigate and enforce the laws designed to provide children with

disabilities a free appropriate public education (“FAPE”) in the least restrictive environment

(“LRE”). (For ease of reference, the term FAPE generally refers to both the FAPE obligation and

the LRE obligation.) Because Plaintiff’s complaint alleges systematic failures by the California

Department of Education to comply with the mandates of IDEA and other laws designed to

protect children with disabilities, there is no need for the participation of individual students nor

is the statutory administrative remedial process empowered to provide the relief Plaintiff seeks.

THE PARTIES

A. THE PLAINTIFF

4. Plaintiff Morgan Hill Concerned Parents Association (“Concerned Parents” or

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

Hill Unified School District (“MHUSD,” “Morgan Hill” or “District”) formed to ensure and

protect the legal rights of these children to receive a free appropriate public education in the least

restrictive environment. Members of Concerned Parents are parents of children with disabilities

and largely reside within the County of Santa Clara in the State of California.

B. THE DEFENDANTS

5. Defendant California Department of Education (“CDE”) is the governmental entity

created and mandated to oversee the operation of public schools in the State of California and is

the “state educational agency” (“SEA”) established to oversee and ensure the provision of special

education services to children with disabilities in California pursuant to the Individuals with

Disabilities Education Improvement Act of 2004, 20 U.S.C. §§ 1400 et seq. Defendant CDE’s


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offices are located at 1430 N Street in the City of Sacramento, County of Sacramento, State of

California.

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

monitoring and investigation obligations, that the Morgan Hill Unified School District has

systemically failed to provide FAPE to all eligible children with disabilities as required under

federal and state laws.

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

corporate, associate, or otherwise, of Defendants sued herein as Does 1 through 5, inclusive, and

therefore sues these Defendants by such fictitious names. Plaintiff will amend the Complaint to

allege the true names and capacities when ascertained. Plaintiff is informed and believes that at

all times herein mentioned, each of the fictitiously named Defendants was in some manner

responsible for Plaintiff’s damages and injuries alleged herein. In performing each of the acts

alleged below, or in failing to perform the acts as alleged below, each Defendant acted jointly or

individually as agents for each and for all other Defendants. The injuries inflicted upon Plaintiff

occurred because of the actions and omissions of each and all of the Defendants.

PRELIMINARY STATEMENT

8. Defendant California Department of Education has the obligation to provide to

every eligible child with a disability within the State of California, including MHUSD students, a

free appropriate public education in the least restrictive environment under the IDEA. CDE has

systematically failed to comply with its obligations under federal and state law. By this action,

Plaintiff seeks to enforce the Defendant’s obligations as they specifically apply to children with

disabilities who have previously resided, presently reside or may in the future reside in the

District. However, Plaintiff is informed and believes that the deficiencies set forth in this

Complaint are reflective of a statewide failure to provide FAPE and therefore seeks a remedy

fashioned so as to benefit all children with disabilities within the State of California.

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

whom are sons and daughters of indigent families, English Language Learners, and Silicon

Valley technology-sector employees. Ten to twenty percent of these children are believed to have


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

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

with disabilities within the District by: (a) failing to adequately monitor MHUSD’s compliance

with federal and state laws related to the education of children with disabilities; (b) failing to

adequately investigate Concerned Parents’ and other parents’ complaints regarding MHUSD’s

noncompliance with these laws; (c) failing to investigate the systemic or repetitive nature of the

District’s violations; (d) failing to issue adequate corrective actions to cure the District’s

violations; (e) failing to monitor compliance with CDE-issued corrective actions, and (f) failing to

ensure the provision of or directly provide FAPE to all children with disabilities within the

District as and when it became apparent that the District was unable or unwilling to do so.

11. CDE has been aware of the District’s inability or unwillingness to provide FAPE

to children with disabilities within its jurisdiction for over three years and has been afforded

multiple opportunities to compel local compliance. Specifically, and in response to Plaintiff’s

persistent complaints, CDE conducted a verification review of MHUSD’s compliance with the

IDEA and related laws in the fall of 2008. CDE’s January 2009 Verification Review Report

(“VR Report” or “Report”) concluded that MHUSD was systemically noncompliant in no fewer

than thirty areas. Despite its findings, CDE issued “corrective actions” that merely required paper

compliance and took no steps to verify the District’s success in actually curing the systemic

deficits. As a result, children with disabilities within the District continued to be deprived of

FAPE. Plaintiff Concerned Parents and individual student complainants sought to remedy the

District’s systemic shortcomings by filing a Noncompliance Complaint with CDE in August

2010. Despite the detailed factual allegations set out in the Noncompliance Complaint, and

despite knowledge of the District’s prior failure to provide FAPE as evidenced by the VR Report,

complaints filed against MHUSD and other sources, CDE undertook no meaningful investigation

of the statutory IDEA violations detailed in the Noncompliance Complaint and summarily denied

the relief sought by the complaint. To this day, students with disabilities in the District continue

to suffer systemic deprivation of FAPE.

12. At all times relevant and continuing to date, CDE has allowed the District to


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systematically deprive students with disabilities of FAPE in the following respects, among others:

(1) failing to identify children with special needs; (2) rejecting or delaying response to assessment

requests made by parents or teachers; (3) using intimidation and retaliation tactics against parents

seeking an assessment or other services for their children; (4) deceiving parents into believing

that no written requests for an assessment were necessary, so that the District’s failure to grant

verbal requests would not be documented; (5) failing to conduct proper assessments; (6) failing to

respond to parents’ requests for independent educational evaluations (“IEEs”); (7) unreasonably

delaying the development of Individualized Education Plans (“IEP”s); (8) inappropriately

convening IEP meetings (untimely; without proper notice; without parents’ or essential team

members’ participation; without proper interpretation, or other accommodations necessary for a

proper IEP meeting); (9) falsely recording attendance of absent District personnel; (10) failing to

implement IEPs; (11) ignoring parental requests for staff and teacher credentials; (12) failing to

place children in suitable programs and to protect children with disabilities from “bullying”

students; (14) ignoring parents’ “stay put” requests to maintain their children’s placement status

quo; (15) placing children in geographically remote programs without exploring the availability

of other more suitable programs; (16) failing to provide transition plans; (17) failing to honor the

District’s obligations under mediated or other settlements; (18) failing to reimburse parents who

paid for services called for by their child’s IEPs; (19) applying discriminatory tactics in educating

children with disabilities, including physical restraints; (20) using intimidation and retaliation

tactics to discourage parents from making educational demands on behalf of their children; and

(21) retaliating against children whose parents made demands on their behalf.

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

that are particularly disadvantaged by MHUSD’s discriminatory implementation of, or failure to

implement, the IDEA mandates. First, the District purports to provide educational services to

infants with disabilities by placing them in one of three Special Day Classes (“SDC”)—one, for

children with Autism Spectrum Disorder (“ASD”), another, for children with “non-categorical”

disorders, and a third for “Speech Only.” As implemented and applied, MHUSD’s placements

provide no “solution” for pre-schoolers with high-functioning Autism—a large and growing


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segment of the infant population. Placement of high-functioning infants in MHUSD’s ASD SDC

program is overly restrictive and leads to emotional and behavioral regression in these children’s

development; placement in the non-categorical SDC, on the other hand, provides no

individualized support services or general education placement and prevents infants with high-

functioning Autism from advancing socially, emotionally and academically. Second, MHUSD

has developed a policy of withholding services from any child who performs well academically

regardless of the child’s emotional or psychological challenges. Without an appropriate

Behavioral Support Plan, for instance, many children with special emotional or psychological

needs begin to fall behind as their behavioral challenges increasingly interfere with their ability to

advance academically and impair their development into productive individuals. When their

behavioral difficulties overwhelm untrained District personnel, the children are removed from

their neighborhood schools and are generally placed in remote and highly restrictive segregated

programs. Finally, MHUSD has neither designed nor implemented appropriate transition plans

for children with disabilities at each crucial phase of their young lives: from kindergarten to

elementary school, from elementary to middle school, from middle school to high school and

from high school with the life skills necessary to transition to an independent life.

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

prevented the District from providing FAPE is memorialized by the CDE’s own publicly

available data. The CDE 2011 Adequate Yearly Progress (AYP) Report for the 2010-2011 school

year shows that students with disabilities at MHUSD failed to meet the target proficiency level in

English-Language Arts or Mathematics. Similar reports show that the proficiency levels for the

2010-2011 school year are even lower than those reported for 2009-2010. The overall test results

of children with disabilities have continued to decline, as have the services they have been

receiving. While CDE has acknowledged the need for corrective actions to reverse MHUSD’s

declining proficiency trend, no effective action has been taken.

15. CDE’s reports memorialize Morgan Hill’s failure to meet other key educational

indicators for children with disabilities. With respect to the Least Restrictive Environment, the

CDE study showed that more children with disabilities within the District than the acceptable


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standard spent more than 80% of their time in a segregated environment and too many children

were housed in entirely separate facilities. Similarly, the 14.4% four-year drop-out rate for

special education students at MHUSD is substantially above the accepted indicator level of

4.6%.1

16. Each of these troubling indicators would alone warrant corrective action;

collectively they demonstrate MHUSD’s broader failure to provide FAPE. Demonstrably aware

of these indicators and the District’s consequent failure to provide FAPE, CDE was obligated to

step in and either ensure the provision of FAPE or provide FAPE directly. Instead, CDE has

abetted the District’s scheme to thwart the design and construct of a system-wide infrastructure

for the identification and delivery of services to all children with disabilities, focusing, instead, on

temporary solutions through individual due process hearings that offer no sustained relief for the

child and no solutions for those children similarly situated. Though due process hearings are

often a satisfactory remedy within school districts that have a functioning special education

infrastructure, they are doomed to failure where, as here, the district lacks the will or capacity to

implement the administrative outcomes. The CDE was in a unique position to observe the

dysfunctionality of the District’s piecemeal approach and should have either directed MHUSD to

fashion a system-wide solution or undertaken the task itself.

17. Plaintiff brings this action to compel CDE’s compliance with its fundamental

IDEA mandate to ensure the provision of, or directly provide, FAPE to all children with

disabilities within the MHUSD.

LEGAL FRAMEWORK

18. Under the IDEA, state educational agencies (“SEA”) bear the ultimate

responsibility for ensuring the provision of a free appropriate public education to all children with

disabilities. 20 USC §1412(a)(11)(A). CDE, as the SEA, is required to engage in a number of

activities to fulfill this fundamental responsibility, including monitoring, investigation of the local

1 The four-year dropout rate is an estimate of the percent of students who would drop out in a four-year period based on data collected for a single year.


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education agency, design and enforcement of corrective actions or provision of services directly

to children with disabilities in the face of a noncompliant local educational agency (“LEA”), such

as MHUSD. The Individuals with Disabilities Education Improvement Act emphasizes that the

focus of the SEA’s monitoring obligations is the improvement of educational results and

functional outcomes for all children with disabilities through the provision of appropriate

services. 20 USC §1416(a)(2)(A). To that end, the IDEA identifies the SEA’s top priority in

monitoring the LEAs as ensuring the provision of FAPE in the LRE. 20 USC §1416(a)(3)(A).

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

residing in MHUSD’s jurisdiction receive FAPE. CDE has failed and continues to fail to monitor

and investigate the District, to design and enforce meaningful corrective actions to correct the

District’s violations and/or provide FAPE directly to children with disabilities once it became

aware that the District was either unwilling or unable to provide FAPE itself.

STATEMENT OF FACTS

A. CDE’s FINDINGS OF SYSTEMIC NONCOMPLIANCE

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

Review of the District’s compliance with federal and state laws related to the education of

children with disabilities. As part of the MHUSD Verification Review, CDE held a parent input

meeting with a moderator. Parental input in the form of either a parent meeting or a parent survey

is a mandatory element of the Verification Review. CDE uses this element of the review process

to enable parents and guardians the opportunity to share their perspectives and experiences and,

thus, to obtain critical information otherwise not available in the paper records the District

supplied. Parent input meetings are designed to inform both the scope of the CDE’s Verification

Review as well as its conclusions. In the resulting January 16, 2009 Verification Review Report

(“VRR”), the CDE found that MHUSD was systemically noncompliant at virtually every level of

the state and federal legal mandate that each child with a disability be provided FAPE in the LRE.

Among the many other areas of noncompliance, the VRR identified the following:

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

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


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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:

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

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);

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

student’s progress toward meeting the annual goals will be measured as required

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

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

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

student’s progress in meeting the annual goals will be provided (id.);

• developed and implemented an IEP that describes how the student’s parents will

be regularly informed of the student’s progress in reaching annual goals (id.);

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

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

3-4-1.2);

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

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

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

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

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

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

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

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

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


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

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

• 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

appropriate) that, among other things:

• included courses of study designed to facilitate the transition from school to post-

secondary life (VRR Item No. 3-6-1);

• described needed transition services focused on improving academic and

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


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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

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

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

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);

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

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

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

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

achieved for the infant or toddler and their family in each student’s

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

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

and

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

21. Although the Verification Review of MHUSD revealed widespread, systemic

violations of federal and state law, CDE did not take the actions necessary to ensure that MHUSD

students with disabilities would be provided FAPE. Instead, CDE imposed inadequate

“corrective action plans” that focused on the District’s “paper” compliance with the IDEA and

other applicable laws. Namely, even though the findings of systemic violations were based on a

review of actual student records and not upon existing MHUSD policies and procedures, CDE

merely required MHUSD to provide evidence that it had compliant policies and procedures.

Specifically, the District was only obliged to verify that it had notified administrators and staff of,

and that it provided training on, these policies and procedures. MHUSD could demonstrate

compliance with these requirements by providing CDE with evidence of pre-existing (and


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demonstrably ineffective) policies and procedures, notification and training. It was not required

to provide evidence that those policies and procedures had been enforced. To the extent CDE

subsequently sampled actual student records it did so in an ineffective manner. Not only did CDE

provide MHUSD with advance notice of the records that it would review, it defined the records to

be sampled in such a way as to encourage MHUSD to switch from one noncompliant tactic to

another. For example, to escape the requirement that the IEP team include a behavioral

intervention case manager whenever the IEP team considered a functional analysis assessment or

developed a behavioral intervention plan, MHUSD simply stopped including functional analysis

assessments and developing behavioral intervention plans even where the child’s disability

plainly called for one or both. Likewise, to reduce the number of times the District could be

found to have failed to provide services required by the IEP, the District simply cut back on the

number and type of services called for in IEPs regardless of a child’s documented needs.

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

the District’s success in correcting the identified systemic violations—the parents of children with

disabilities—before concluding that all of the violations had been cured. Had the CDE consulted

with the parents, it would have discovered that not only had the District not corrected all of the

previously identified systemic violations, it had developed a new pattern of violations in order to

demonstrate “paper” compliance with the CDE’s “corrective actions.”

23. In an April 9, 2010 letter from CDE’s Director, Special Education Division,

without requesting any further input from MHUSD parents and without any evidence of

discernible improvements in the systemic irregularities that continue to impede the provision of

FAPE to children with disabilities in the District, CDE advised MHUSD that it had demonstrated

correction of all noncompliant findings from the Verification Review.

B. PLAINTIFF’S NONCOMPLIANCE COMPLAINT AND CDE’S PERFUNCTORY DENIAL OF CLAIMS

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

complainants, perceiving the futility of pursuing individual due process claims in the wake of the

District’s response to the Verification Review, including its substitution of one set of systemic


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violations for another, filed a Noncompliance Complaint (“NCC”) with CDE. The NCC alleged

both further examples of the same noncompliance issues identified in the CDE’s original

Verification Review Report, confirming that MHUSD had not “corrected” those systemic

violations, as well as entirely new systemic violations. Accordingly, CDE had notice that each of

the broader areas of systemic noncompliance CDE had identified in its Verification Review

Report had not been cured and that MHUSD had developed and engaged in additional systemic

violations. Amongst its allegations, the NCC demonstrated that MHUSD:

• “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);

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

• was “out of compliance in its failure to hold timely or appropriate IEP meetings”

(NCC 12:22-23);

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

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

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

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

• ignored or rejected requests for development of positive behavior support plans (NCC

3:28-4:8 & NCC 4:16-18, 25-28);

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

• failed to “implement a transition plan and prepare [students] for independent life”

(NCC 34:10-13);

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

state law” (NCC 15:7-8);

• “ignored its obligation to provide Extended School Year [“ESY”] services” (NCC

4:7-8); 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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The NCC also provided examples of MHUSD’s failure to provide language-appropriate forms for

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

children with disabilities of FAPE, the NCC offered details regarding the experiences of six

individual students in MHUSD who had been denied FAPE. The experiences of those students

who have remained in the District have not measurably improved since the NCC was filed:

WADE P.2

26. Wade P., a ten-year-old child, was diagnosed with Autism by Children’s Health

Council at age 3 and has had periodic IEPs since that time. MHUSD thwarted Wade’s ability to

optimize his educational opportunities in numerous ways by, among other things, failing to

adequately assess, actively excluding Wade’s parents from IEP meetings, then retaliating against

Wade when his parents asserted their rights under the IDEA. Wade’s parents ultimately

concluded that they had no choice but to home-school Wade. The District failed Wade on

numerous levels, including the following:

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

scheduled a fourth meeting at a time when the District knew his parents could not attend. Rather

than reschedule this meeting, the District proceeded in Wade’s parents’ and their specialists’

absence and, over their objections, reduced Wade’s inclusion time in a general education class by

50% and eliminated 15-18 hours of weekly at-home services mandated by his earlier IEP.

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

(“1:1”) aide (the District refused to reimburse Wade’s parents the $30,000 cost of hiring one),

twice-a-week study groups of no more than 5 students, Speech Therapy over an Extended School

Year, and occupational therapy training for his teacher. Similarly, the District unilaterally, and

without a transition plan in place, changed Wade’s in-home Applied Behavior Analysis to a

District provider.

2 In order to protect the children from any backlash as a consequence of publicly telling their stories, they are referenced herein by pseudonyms.


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29. Concerned that Wade’s behavior was impeding his learning, Wade’s parents

requested that his assessment include a Functional Behavior Analysis and that he be provided

with a Behavioral Support Plan. The District refused the request. His parents then asked for an

independent educational evaluation (“IEE”). The District initially agreed, then later, without

notice to Wade’s parents, put the evaluation “on hold.” In order to avoid further delay and

ongoing injury to Wade’s education, his parents retained and paid for a specialist to undertake a

private assessment. The specialist found that Wade suffers from a Central Auditory Processing

Disorder and Hyperacusis (a health condition characterized by over-sensitivity to certain

frequency ranges of sound) both of which were consistent with Wade’s documented performance

problems. Although the District agreed to reimburse Wade’s parents for the expense of the

assessment and other educational services in a mediated settlement, it unreasonably delayed

reimbursement for the assessment and has not reimbursed Wade’s parents at all for other

expenses it had agreed to pay.

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

Virtual Academy (“CAVA”)—an educational institution supporting parents and children who are

homeschooled—that Wade had been truant, knowing that CAVA does not accept truant students.

Though the District has acknowledged that Wade was not truant, it has refused to retract its

notification to CAVA. As a result, CAVA refused to enroll Wade.

ROBERT R.

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

disorder, intermittent explosive disorder and other mental challenges. Robert’s condition

manifests in challenging classroom behavior such as head banging. The District abandoned its

IDEA obligations to Robert by, among other things, failing to assess and develop a behavioral

support plan. Without a support plan, neither Robert, his teachers nor his aides were equipped to

respond to his behavioral challenges. As a consequence, Robert was routinely removed from the

classroom and therefore deprived of his educational opportunities altogether. Instances of the

District’s failure to provide FAPE include the following:


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32. Despite repeated requests by Robert’s parents, MHUSD refused to perform a

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

guidance to Robert’s teachers and aides in responding to his complicated needs. Instead, the

District relied upon Robert’s parents to simply remove him from the classroom whenever his

diagnosed disorders manifested. On one occasion when his mother was unable to leave work,

MHUSD called the police and suspended Robert from school for non-violent conduct—a

predictable, if horrific, result of the District’s failure to properly address Robert’s behavioral

challenges.

33. The District’s failure to address Robert’s behavioral challenges led to serial

involuntary suspensions, causing him to slip further and further behind academically. His learning

was further compromised by the District’s refusal to provide trained 1:1 aides as called for in

Robert’s IEP. Yet the District rejected his parents’ requests for compensatory education, stating

that Robert was “only 2 years behind academically.”

JASON B.

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

identified speech disorders, Reactive Attachment Disorder, ADHD and Oppositional Defiance

Disorder. MHUSD utterly failed to provide the services Jason required in order to advance

academically by, among other things, first failing to assess and identify, then failing to restrain

the relentless bullying to which Jason was subjected. Jason was transferred to another school

district where he is now thriving given the proper support services. Jason’s experiences within

the District included the following:

35. Despite Jason’s parents’ and teachers’ repeated requests that the District conduct

an assessment, the District consistently and adamantly refused to do so, engaging in inappropriate

behavior (verbal threats and threatening gestures, yelling, and storming out of a meeting before

its conclusion) to intimidate his parents. When the District finally agreed to a limited assessment,

it failed to identify Jason’s Autism, speech deficiencies, fine motor skill deficiencies, and other

deficits that Jason’s psychiatrist and other specialists had diagnosed.


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36. Ignoring his parents’ complaints, neither the District nor the school intervened

when Jason was repeatedly bullied by other students at Martin Murphy Middle School.

Following a particularly violent attack, the school principal refused to file an incident report and

pressed the police to refrain from issuing a report for fear that the school’s reputation would be

negatively affected. The District later denied the witnessed incident. The only step MHUSD took

to purportedly protect Jason from the bullying was to instruct him to limit his social engagement

with other children—one of many examples of an untrained and overwhelmed District staff

taking steps that punish the victim, by further isolating him, and doing nothing to restrain the

aggressive and threatening behavior of his classmates.

ROLAND F.

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

Autism. Because he does not speak, Roland requires assistive technology in order to learn. The

District refused to provide the technology and failed to involve his parents in any meaningful

way. Nor did the District provide the mandated transition plans and services when Roland moved

from elementary to middle school, and then from middle to high school. Among the many ways

in which the District failed Roland are the following:

38. Approaching the 2008-2009 school year, MHUSD failed to advise Roland’s

parents that the only proposed placement for him—the Severely Handicapped Class at Sobrato—

was going to close. When Roland’s parents finally learned of the closure, they requested that

MHUSD address Roland's transition IEP and ninth grade placement. Ignoring the parents’

requests, denying their “stay put” request, and without consulting them or obtaining their consent,

MHUSD notified Roland’s parents just days before the commencement of the school year that

Roland was to enter a Campbell County middle school program—a most restrictive program 30

miles from Roland’s home. Both Roland’s parents and the school psychologist rejected the

Campbell County program as too restrictive and too far from home. MHUSD offered no

alternative placement for five weeks, during which time Roland remained at home with no

compensatory education.


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

to and from school due to the bullying that he and other children with disabilities experienced on

the bus. The District refused to provide him with any support on the bus; according to his

principal, “bullying is part of school” and he deemed the school’s current policies sufficient.

Lacking District support, Roland had to be driven to and from school by his parents.

40. The District has made no accommodations for Roland’s many challenges. For

instance, when his class assembled for a group photography session, Roland was not allowed to

participate. Similarly, Roland and his class were excluded from the end-of-the-year eighth grade

field trip because the District allegedly could not afford to send an aide to support Roland. His

parents requested that the District confirm this in writing but it ignored the request.

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

grades or the transition services necessary to make a successful move to high school. For the past

ten years the District withheld from and refused to provide Roland with any assistive technology

or any other means designed for, and regularly offered to, children with disabilities similar to his.

And, when Roland was poised to transition into a high school program, MHUSD entirely failed to

address his transition; it has neither performed a timely assessment to inform any placement

decision, nor has it convened an appropriately staffed IEP.

EDWARD S.

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

MHUSD stymied Edward’s educational objectives by, first failing to assess, then subjecting him

to unauthorized assessments, without notice to his parents, in order to lower the number of

services to which he was otherwise entitled. Examples of the District’s failure to provide FAPE

include:

43. In defiance of Edward’s IEP, MHUSD unilaterally, both without notice to his

parents and without any justification: reduced Edward’s weekly Applied Behavioral Analysis

(“ABA”) Services from 15 hours to 3 and reduced the originally provided 4 hours of coaching

and coordination to 1.5 hours a week. The District’s unilateral reduction of services caused a

dramatic regression (of at least one year) in the skills Edward had acquired to date and is likely to


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cause irreversible damage. Yet the District has offered no services during the summer months

nor has it provided any compensatory education to alleviate these deficits.

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

was receiving, and without his parents’ notice or consent, MHUSD reassessed Edward’s

previously diagnosed Autism. The District concluded that his Autism eligibility needed to be

modified and, on that basis, restricted his services even further.

C. ADDITIONAL SPECIFIC EXAMPLES OF MHUSD’S ONGOING SYSTEMIC NONCOMPLIANCE

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

individual student complainants but also violations affecting “children similarly situated,” the

areas of violation identified in the Verification Review and MHUSD’s “capacity to provide

children with disabilities with a FAPE in the Least Restrictive Environment.” In light of the

NCC’s allegations of systemic violations and the CDE’s own findings of systemic deficits in the

Verification Review, CDE had the obligation to undertake a thorough review of not just the

circumstances of the individual students identified in the NCC, but also the availability of a

service delivery system in the District to address challenges of similarly situated students. CDE

engaged in no meaningful investigation nor did it solicit input from any of the Concerned Parents

or parents of children similarly situated. Instead, CDE relied on the District’s self-serving

conclusory reports to summarily reject the NCC’s allegations of noncompliance. The CDE’s

failure to investigate, to correct the District’s systemic noncompliance with, and/or provide its

own services in satisfaction of, federal and state laws designed to protect children with disabilities

demonstrates CDE’s own noncompliance with these laws.

46. Had the CDE complied with its obligation to ensure MHUSD’s provision of FAPE

in the LRE by conducting a thorough investigation of the District’s service delivery system

subsequent to the Verification Review or in response to the NCC, CDE would have discovered

ongoing systemic violations of the IDEA. Those endemic deficits continue to define the life of

children with disabilities within the Morgan Hill Unified School District today. The following

are merely a handful of examples of an ongoing pattern of behavior by which the District defies


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its obligation to provide FAPE to the children of Morgan Hill:

VIRGINIA F.

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

privately funded evaluation. After providing some, but not all, of the services Virginia needed to

engage academically, the District subjected her to an unauthorized assessment that incorrectly

concluded that she had no social or emotional challenges—this, on the heels of a suicide attempt.

Because of persistent and dangerous bullying, Virginia’s parents had no choice but to move her to

a middle school that requires a 30-mile roundtrip drive every day.

48. Although MHUSD acknowledged Virginia’s Autism during elementary school, it

never recognized her eligibility for services as a child suffering from Autism. Instead, MHUSD

treated Virginia as a student with Specific Learning Disabilities (SLD) and Speech and Language

Impairment (SLI) only, entitling her to some but not all the services she needs.

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

despite the documented diagnoses. MHUSD unilaterally removed the social skills support

services from Virginia's IEP in 2010, though they had been mandated by all of her prior IEPs to

address her most serious deficit. The District stated only that it no longer had the staff to provide

those services.

50. Virginia’s parents repeatedly expressed concern for their daughter’s safety both in

writing and in person, pointing to severe and systemic problems of student bullying at the

District. MHSUD took no steps to protect Virginia, stating that bullying was simply “part of

middle school,” and that the District’s policies were more than adequate to protect Virginia. Yet,

the District was aware that Virginia had left a note stating that she had attempted to commit

suicide because of the relentless and ongoing bullying.

51. Following Virginia’s suicide attempt, MHUSD suggested in an IEP that Virginia

“seek out” a psychologist in one of various mental health agencies but failed to provide Virginia

and her family with any guidance, support or counseling as to where such services could be

obtained.


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52. Rather than address Virginia’s ongoing safety concerns, the District first directed

Virginia’s parents to pursue independent studies at home—services for which the parents

received no District compensation, meaningful support or guidance. The District then asked that

she return citing the loss of funding while Virginia remained at home. Having terminated

Virginia’s IEP-mandated aide whose task it was to ensure Virginia’s safe entry into, and exit

from, school, the bullying predictably intensified and the District once again sent Virginia home.

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

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

social, emotional and Autism assessment. The resulting District assessment—that Virginia had

no social and/or emotional challenges and did not meet the Autism criteria—contradicted all of

the District’s prior observations and defied the plain facts.

54. Virginia’s parents requested that MHUSD permit an independent educational

evaluation (IEE) following the District’s financially motivated and unsustainable assessment.

MHUSD has failed to respond to Virginia’s parents’ repeated requests for an IEE. The District

has maintained its public conviction that Virginia has no social or emotional issues even in the

face of learning that Vivian was carrying a utility knife in her school pack because she is

“cutting” herself—a syndrome that is considered to be a serious mental health issue. MHUSD’s

only response has been to threaten to take Virginia to the expulsion board.

GREGORY G.

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

Bipolar Disorder at the age of 10. He also suffers from auditory processing deficits which

manifest in a short attention span, inappropriate and aggressive behavior with peers and poor self-

control. MHUSD’s approach to Gregory’s many learning and behavioral challenges has been to

promise, renege, then renew the empty promise. As a consequence, Gregory fell two years

behind academically and his behavior had become uncontrollable before he moved to a far more

responsive and successful County program. Among the many examples of the District’s “bait

and switch” tactics are:


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56. After years of ignoring Gregory’s parents’ requests for an assessment, MHUSD

finally agreed to provide minimal services when he was in fourth grade: an aide, speech therapy

and ten minutes per week of psychiatric “observation.” Two months later the District unilaterally

discontinued speech services and aide support.

57. Gregory’s parents’ repeated requests for a behavioral support plan were met with

similar resistance from MHUSD. Once it acknowledged that a plan was indeed necessary, the

District developed one that had no steps or skill-building measures nor any guidance for his

teachers. It merely required Gregory to “STOP, THINK AND PLAN.” Gregory did not obtain

the tools that would allow him to control his moods, behaviors and ability to focus; he was,

accordingly, routinely excluded from general education recess activities and field trips.

58. The District has been comparably obstructionist in convening IEP meetings and

implementing the resulting directives. At one IEP meeting, MHSUD agreed to provide Gregory

a 1:1 aide with appropriate Tucci support. It later recanted its agreement. At a subsequent IEP

meeting, MHUSD once again agreed to provide a Tucci-trained aide. After just one month, the

District unilaterally discontinued the Tucci-trained aide and replaced him with an inexperienced

and untrained District aide. The District’s untrained aide quit his job after two hours of work

with Gregory.

59. MHUSD’s “bait and switch” behavior persisted through a 2008 due process

hearing and resulting settlement. Pursuant to the Settlement Agreement, the District once again

agreed to: provide Gregory with a 1:1 Tucci-trained aide who would start immediately; the aide

would conduct a Functional Behavior Analysis; and the parents would be reimbursed for prior

tutoring. The District breached each of its pledges—the only reasons the parents had agreed to

the settlement.

60. Gregory’s 2011 IEP confirmed that he was two years behind his peers in virtually

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

team agreed that the appropriate placement for Gregory was a highly structured program

specializing in the education of children with severe emotional and behavioral problems,

including a trained 1:1 aide and integrated psychotherapy. The District confirmed that it had no


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program appropriate for Gregory. He was accordingly placed in a County program where he and

his teachers are now guided by a more meaningful behavioral support plan. With the essential

guidance of the plan, Gregory has been able to better engage academically as reflected in his

rising test scores although his academic progress remains significantly below his intellectual

abilities as a consequence of the many years the District deprived him of appropriate behavioral

supports.

FREDERICK M.

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

that his parents were non-native English speakers, the District actively misled them into agreeing

to a plan that resulted in Frederick losing access to all support services until May of 2011. When

his parents sought to rectify the loss, MHUSD told them it had lost all of his records. Only after a

long struggle were his parents able to reinstate his IEP. Among the many ways in which the

District failed Frederick are:

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

diagnosis to MHUSD shortly after they obtained it in roughly August 2006, the District failed to

timely assess Frederick’s areas of need and denied him eligibility based on his academic progress.

When the District finally implemented an IEP in June 2007, it stated that “a therapeutic approach

. . . is needed in classroom and socially.” Notwithstanding this, the District provided only one

Expressive Language goal in the IEP.

63. IEP meetings and evaluations in 2008 identified Frederick’s many challenges as

including ADHD, socialization, organization, impulsivity, Asperger’s Syndrome, working

memory and emotional liability. Despite all of the objective evidence, MHUSD suggested to

Frederick’s parents that Frederick no longer have an IEP but instead have only a Section 504

plan. The District did not explain to the parents that this would mean that Frederick would no

longer receive special education services. Worse, having first convinced the parents to accept a

Section 504 plan, MHUSD then never implemented it.

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

eligibility. Once undertaken, it failed to consider all of Frederick’s needs and outside assessment


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and, once formulated, MHUSD did not provide his parents with an assessment plan in his parents’

native language. The District’s March 15, 2011 assessment only included a speech and cognitive

analysis even though the District knew that this was not one of Frederick’s areas of deficiency.

Indeed, MHUSD had previously denied him eligibility based on his academic performance.

Moreover, when MHUSD provided Frederick's parents with a progress on goals in November, it

failed to provide that information in their native language.

65. Without appropriate educational services from the District, Frederick experienced

documented regression. Yet MHUSD failed to provide Extended School Year services as

required by the IDEA. The District failed Frederick in other fundamental ways. In 2009,

Frederick’s desk was sequestered and facing a corner, surrounded by mounds of clutter, though it

was well documented that Frederick needs an uncluttered environment and behavioral support.

When his parents requested a copy of his records, MHUSD informed them that his entire file had

been lost.

66. Frederick’s current IEP is lacking essential elements and is legally noncompliant.

Although Frederick takes a social skills class, for instance, the District has not documented this

class in his IEP nor has it established goals or objectives for him and his teachers to follow in

order to measure his progress in this critical area. Instead, the District has tasked his general

education teacher and his speech therapist, both of whom lack the necessary training and are not

guided by specifically articulated written goals, with responsibility for his learning social skills.

FRITZ Q.

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

poised to graduate from high school. However, MHUSD has failed to provide him with the skills

needed to navigate in a non-school environment. Not only did MHUSD fail to develop and

implement an appropriate transition plan, MHUSD did not offer him or others similarly situated

with the mandated life skills classes.

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

However, despite this, four of Fritz’s six teachers do not communicate with his parents outside of

grading periods. In an effort to remedy this omission, the IEP team agreed at last year’s IEP


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meeting that his teachers would notify his parents if his grade in any subject dropped below a C.

Despite the agreement, his parents did not receive any notification prior to Fritz receiving a D on

his progress report.

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

has not, for instance, included in his IEP an appropriate transition plan to aid Fritz in his

development as a gainfully employed adult. Nor did MHUSD offer essential life skills classes as

there were no teachers with the appropriate training. Nor has the District responded to Fritz’s

increased need for emotional and behavioral support services after the drive-by killing of a fellow

student—this, despite MHUSD’s public announcement that it would offer counseling to any

student who wanted it.

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

March 16, 2011, the District case manager gave Fritz’s parents less than 24 hours notice of an IEP

meeting. Although his parents advised they were unable to attend, the District held an IEP

meeting the next day in their absence. The District then claimed that the unauthorized meeting

was not an “IEP” meeting and deleted references to it from Fritz’s records. When MHUSD

suspended Fritz for allegedly damaging a plant, it failed to engage his parents either before or

after the suspension.

SAMANTHA C.

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

Specific Learning Disability and Apraxia. MHUSD initially neglected its IDEA obligations to

Samantha by failing to assess her, and then refused to accurately assess her. As her education

progressed, MHUSD accommodated Samantha’s educational challenges by permitting her to

advance rather than provide the support services she needed to meaningfully learn.

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

loss and APD, it neglected to assess her hearing. Subsequent assessments similarly failed to

address all areas of need. To date, Samantha has never had a complete assessment by the District.

Indeed, Samantha was only made eligible for special education in 2010, after years of delay by

the District, because Samantha’s parents solicited and paid for independent evaluations.


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

determine how best to ensure that Samantha is being properly educated in math, her teacher is

giving Samantha “extra” credit based on her “effort” and as a result, she is currently passing the

class despite having scores in the 30-40% accurate range. Grade inflation is not a proper

substitute for providing Samantha with the education she is entitled to under the IDEA and other

applicable laws.

74. Samantha’s IEP calls for the provision of occupational therapy. However, the

District has failed to provide her with this therapy. Similarly, although her IEP calls for the use

of a computer (a change made by the District rather than agree to Samantha’s mother’s request

for an adaptive technology assessment to accommodate Samantha’s handwriting), the District has

not provided her with a computer for class time and has not provided her with instruction on

keyboarding skills.

75. Based on her educational performance, Samantha’s parents determined that it was

appropriate to make a claim for compensatory education. In order to prepare the claim,

Samantha’s parents sought her records from the District. The District never responded to her

parents’ request.

ALICIA M.

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

challenges, was only recently assessed despite her parents’ repeated requests for an assessment.

Exploiting the fact that her parents are not native English speakers, the District has effectively

prevented them from developing a meaningful educational plan for Alicia. MHUSD also withheld

crucial information from the parents, including the fact that Alicia had been physically restrained

in the classroom on more than one occasion. The District has failed Alicia in numerous ways,

including the following:

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

have been placed in an Autism Spectrum Disorder (“ASD”) Special Day Class (“SDC”) run by

the District. Instead, she was placed in a non-categorical SDC where children with varying

disabilities receive the same treatment and instruction from untrained teachers and aides. At the


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COMPLAINT

time of the placement, Alicia had no IEP and no IEP team to discuss the educational services

necessary to address her specific needs, what trained teacher(s) she would need and what an

appropriate placement for her might be.

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

placed in her neighborhood general education school, P.A. Walsh. Two days later, after learning

that Alicia had graduated from the Special Day Class, P.A. Walsh’s principal had her transferred

to a non-categorical special education class in Jackson Elementary School. Alicia’s parents

belatedly learned that in order to stop Alicia’s occasional fidgeting in class, one of her teachers at

that school had repeatedly tied her and two other students to their chairs. The District did not

inform her parents about the recurring incidents of unauthorized physical restraint. Alicia’s

parents instead learned about them from the police. Subsequently, at the District’s instigation and

instruction, the police stopped cooperating with Alicia’s parents. During the police investigation,

a District official acknowledged that Alicia had Autism—directly contradicting its persistent

refusal to make her eligible for, and provide, Autism-related support services.

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

removed from her classroom. Rather than using the dismissal as an opportunity to address

Alicia’s educational needs, however, the District elected not to replace the dismissed teacher with

another teacher. For a time, untrained teacher aides alone provided Alicia’s sole instruction. Her

parents have requested that Alicia obtain instruction from a fully credentialed and properly

trained teacher, but the District has ignored their requests.

JOHN D.

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

currently receives services, including speech therapy, through the San Andreas Regional Center.

When he turns three, MHUSD will become responsible for his education and support services.

Recently, his parent attended an IEP meeting with District officials to discuss John’s placement

and support services.

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

identifying a number of needs for John and placing him in the Autism Spectrum Disorder Special


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Day Class. Placement in the ASD SDC was entirely inappropriate for John. Because he is a

child with high-functioning Autism, an appropriate placement would require access to general

education with appropriate supports. A placement with lower-functioning children only in the

ASD SDC, on the other hand, would cause John to regress socially and emotionally. When

John’s parent challenged his placement in the ASD SDC, although District staff acknowledged

that this placement was inappropriate, they went on to systematically cross out previously

identified needs without explanation. The implication was nevertheless clear: either his parents

would accept John’s placement in the overly restrictive ASD SDC or he would be placed in a

non-District facility where the District would refuse to provide any services.

COLLECTIVE LESSONS FROM THE INDIVIDUAL STUDENTS’ STORIES

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

stories of each of these children, the District has particularly disadvantaged three groups of

children with disabilities (infants with high-functioning Autism; academically-performing but

emotionally challenged children; and students who are poised to graduate from high school and

embark on an independent life without the skills or emotional resources needed to succeed) but its

systemic failure to provide FAPE invades every level of the IDEA’s mandates. In reading the

experiences of these children, it becomes apparent that the District’s failure to meet their needs is

the consequence of a highly cynical calculation—that is, that few if any parents have the

background, resources or skills to, first, recognize the inequities of the District’s evaluations and

placements and, second, to fight the District to gain the services to which their children are

statutorily entitled and withstand the District’s threats and intimidation tactics. CDE should have

intervened years ago; it cannot be allowed to continue to sit on the sidelines as an entire district of

school children with disabilities goes unserved. // // // //


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WHEREFORE, PLAINTIFF ALLEGES THE FOLLOWING CAUSES OF ACTION:

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

paragraphs 1 through 82 above.

84. By the acts and omissions alleged herein, Defendants have violated Plaintiff’s

rights under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. §§ 1400 et

seq., and its implementing regulations at 34 C.F.R. Part 300, and the California Education Code

§§ 56000 et seq. to receive a free appropriate public education in the least restrictive environment.

Defendants failed to ensure the provision of, or directly provide, FAPE to children with

disabilities.

SECOND CAUSE OF ACTION

Failure to Investigate


20 U.S.C. § 1400 et. seq.)


paragraphs 1 through 84, above.




§§ 56000 et seq. Defendants failed to properly investigate the District’s provision of FAPE to

children with disabilities.

// // //


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THIRD CAUSE OF ACTION

Failure to Monitor


20 U.S.C. § 1400 et. seq.)






§§ 56000 et seq. Among other things, Defendants failed to appropriately and effectively monitor

MHUSD’s compliance with special education mandates and ensure timely correction of

noncompliance once identified.

FOURTH CAUSE OF ACTION

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



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

violated Plaintiff’s rights to a free appropriate public education in the least restrictive

environment guaranteed under the California Education Code §56000, et seq., and the regulations

promulgated thereunder, 5 CCR §3000, et seq.

RELIEF REQUESTED

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

the following relief:

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

of children with disabilities protected under the Individuals with Disabilities Education

Improvement Act, 20 U.S.C. §1400 et seq. and California Education Code §56000 et seq.;

2. Permanently enjoining Defendants from violating the rights of children with

disabilities protected under the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et


morgan hills concerned parents v. california department of education complaint

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