Couple battles over special education son's expulsion

May 4, 2012 12:13:22 PM PDT
Days before Pablo Lopez learned that his son, a 14-year-old special education student in the Fresno Unified School District, would be recommended for expulsion, Superintendent Michael Hanson asked for a "father-to-father" meeting.

As they sat in Hanson's white pickup truck, parked at a local high school, the superintendent, according to a court declaration by Lopez, proposed a deal: If Lopez fired his lawyer, whom he had hired to handle a special education complaint against the district, the district would pay his legal fees and properly assess his son's disabilities. His son would be placed in the appropriate setting, and in two years, if he stayed out of trouble, Hanson would move to expunge the expulsion.

Lopez, a longtime Fresno Bee reporter who once covered the school district, had long wanted the district to fully assess his son's disabilities so appropriate placement and services could be determined. He didn't know at the time that federal law already required the district to do so.

In August, five days after Hanson made his offer, Lopez and his wife, Donell Stiers, declined the proposal. Their son was expelled. The family and Fresno Unified have been fighting ever since.

"I know I'm not the only parent," Stiers said of the family's struggle with the district. "Somebody's got to stand up, and somebody's got to tell them it's not fair. And somebody's got to tell them to do the job."

The battle has escalated from the district to the county board of education and now into two separate-but-related legal battles ? one between the district and the board of education and another between the district and the family. Along the way, it has underscored challenges many families face when trying to navigate a complicated special education system they know little about.

Special education is padded with procedural safeguards and due process rights to inform and protect parents and students. "The system is set up to work," said Prudence Hutton, an attorney in San Francisco and the Central Valley who focuses on early dispute resolution and mediation in special education.

But in practice, the system can also be manipulated, disregarded and abused. "No matter how smart parents are," Hutton said, "this whole special ed world is so convoluted and so messy and so procedurally complicated."

At the heart of the family's dispute is whether the district improperly expelled their son by violating their procedural rights and failing to fully consider his disability.

When a special education student faces disciplinary action, such as expulsion, that could change where he receives services, a district must first consider whether the student's misconduct stemmed from his disability or the district's failure to implement his individualized education program. An IEP, as it's known, is a federally mandated document that identifies a special education student's needs, guides related services and sets educational goals.?

Disciplinary issues are addressed at an IEP meeting known as a manifestation determination review. Neither Lopez nor Stiers had ever heard of the review before attending their son's; they received just one-day notice of the meeting.

"They don't really explain what it is other than to tell us it's a very minor part of the expulsion," Lopez said.

The parents requested the discussion be tape-recorded, a right identified in district documents, but school officials told them no tape recorder was available, Lopez said.

Fresno Unified spokeswoman Susan Bedi said the district could not comment for this story because of pending litigation and its responsibility to protect "the confidentiality of all student information."

What Lopez and Stiers experienced is common, said Hutton, who has represented students in manifestation determination reviews but is not involved in this case.

"A lot of families have absolutely no idea what's going on at all," she said. "Unless you have a very skilled advocate and the child has a whole lot of outside experts that understand their medical history and the behavioral, psychological impacts, there's no way to win one of those."

Lopez and Stiers attended the review alone, unaware of, and unprepared for, its significance.

The parents, who have three biological children, adopted their son when he was 10, along with his older brother and sister. By then he'd spent seven and a half years in 26 foster homes. He had an IQ of 60, had no record of school attendance, didn't know how to read and struggled to speak. He was diagnosed with developmental delays and various mental health disorders.

Stiers, a registered nurse who also holds a teaching credential, home-schooled their son for a year and a half before enrolling him at Ahwahnee Middle School, where he played saxophone in beginning band and joined the cross country team. Stiers said the boy's coach, also his resource specialist program teacher, told her, "He doesn't win, but he's out there running and that's good for him."?

The school's vice principal would later describe the boy as "very polite" and "kind of an exemplary student that is pleasant to speak to, typically well behaved, liked, just a nice young man," according to a transcript of his expulsion hearing.

When another male student with disabilities last May accused him of sexual assault during a game of truth or dare ? allegations for which he was arrested but never charged ? the parents argued that there was no assault and that attention deficit hyperactivity disorder, the disability that qualifies their son for special education, made him impulsive and immature.

But the district rejected the parents' argument and determined their son's misconduct was not caused by his disability or its failure to implement his individualized education program. As a result, the district was not legally required to conduct a behavioral assessment, implement a behavior intervention plan or take immediate steps to remedy his IEP. It was then allowed to proceed with the expulsion.

The family appealed to the Fresno County Board of Education, whose five members found there was evidence that was improperly excluded or that could not have been produced at the expulsion hearing. They deemed the hearing unfair, voted unanimously to overturn the expulsion and ordered the district to expunge his record.

Fresno Unified challenged the board's decision in court; the case is pending.

Meanwhile, a due process decision issued last month by the Office of Administrative Hearings has further entangled the district and family in a legal morass.

Administrative law Judge Peter Paul Castillo invalidated the district's manifestation determination review ? the disciplinary hearing that allowed the district to expel the boy. That voided the expulsion as well. But 11 days later, the district held a new review ? a requirement if it still wished to expel the couple's son. Again, the district said their son's misconduct stemmed neither from his disability nor its failure to implement his IEP.

A second hearing on the parents' due process complaint is scheduled to begin this month. It will determine whether, after their son's misconduct last year, Fresno Unified should have conducted a functional behavioral assessment, which could have established a support plan to address any behavioral problems.

The hearing will also determine whether the district failed to provide their son a free appropriate public education, as guaranteed by federal special education law, and now owes him compensatory education. The parents said the district kept their son out of school and without independent study for five months, including the summer, while his expulsion was pending and even after the school board ordered he attend a new school in the district.

"Children are supposed to be in school, even if they're expelled. They're supposed to be getting an education ? especially if they're a special ed student," said Martha Torgow, an attorney representing the family in its due process complaint.

Lopez and Stiers' son is now 15 years old and in ninth grade. Pursuant to the district's order, he has been attending Phoenix Secondary Academy, a community day school for at-risk students. He is happy at the school, which focuses heavily on student behavior, but not in an appropriate long-term placement, the parents said.

The parents worry that their ongoing dispute with the district and lack of an appropriate, up-to-date IEP leave their son in limbo, without a safe and nurturing place to go to school.

"I'm required by law to send my child to school, but yet I have to worry every day now," Stiers said.?"Unless we really address what's going on, we can't assume people will just watch out for him."

Story courtesy of our media partners at California Watch (A Project of the Center for Investigative Reporting)


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