Los Angeles Unified School District (LAUSD or the District) serves 65,000 Special Education students.[1] LAUSD's annual Special Education budget is $549.4 million.[2] More than 13,000 students with disabilities are provided with daily transportation to and from school.[3]

This paper will focus on Special Education as it is administrated in LAUSD and on the major issues that any new school district(s) must confront should there be a future break-up of LAUSD or break-off of some portion or portions of the District, leaving behind a smaller LAUSD. It will also briefly discuss the effects reorganization may have on the remaining LAUSD, if there is a reorganization. It is important at the outset to stress that Special Education is extremely complicated. There are detailed statutes at both the state and federal levels that govern every aspect of Special Education. One parent's manual, published jointly by two advocacy groups in California, is more than an inch thick.[4] Thus, this paper necessarily only an overview of some important issues and by no means should it be considered an exhaustive survey of the many legal requirements imposed by state and federal laws.

First, this paper will discuss the structure of Special Education legislation, including a brief history and overview of the major federal and state laws. Second, this paper will discuss the recent Consent Decree issued by the United States District Court for the Central District of California in Chanda Smith v. LAUSD.[5] Third, the implications of an LAUSD restructuring will be explored. Finally, this paper will conclude with a discussion of the Special Education services which any school district in California must provide, whether or not it is bound by the Chanda Smith Consent Decree.

In California today, Special Education is governed by a variety of state and federal laws. In addition, there are both state and federal regulations designed to assist in the administration of these laws. The United States Code defines Special Education as any specially designed instruction in place to meet the unique needs of a child with a disability and provided by the school at no extra cost to the parents.[6] In California, the definition of Special Education incorporates the federal definition and further requires that the student's needs must be such that they must be met by services provided outside the regular classroom.[7] If a student with a disability receives specialized educational services within the general education classroom, then those services are not considered "Special Education." Thus, the California definition does not cover every child with a disability. In fact, many children who are disabled and receive accommodations in the regular education classroom are not technically receiving Special Education. Students with disabilities who are accommodated in the regular classroom are accommodated under the Federal Civil Rights statute,[8] generally referred to as Section 504 of the Rehabilitation Act of 1973 (Section 504).[9]

The most comprehensive Special Education law is the Individuals with Disabilities Education Act (IDEA).[10] Under IDEA, every disabled child is entitled to a free, appropriate public education (FAPE)[11] in the least restrictive environment (LRE).[12] In California, an appropriate education is determined on an individual basis and must meet the unique needs of each student with exceptional needs. The "educational program shall provide the equal opportunity for each individual with exceptional needs to achieve her full potential, commensurate with the opportunity provided to other students."[13] The LRE requirement is interpreted to mean that, to the maximum extent possible, children with disabilities should be educated with their non-disabled peers.[14] This is true whether the child is in a public or non-public school placement. In the past, children with disabilities were routinely segregated into schools for the "handicapped." It was the exception to have a child with a disability in the general classroom. Today, however, placement in special classes, separate schooling or other removal of children with disabilities from the standard educational environment can occur only when the nature or severity of the disability is such that an education in the regular classroom, even with the use of supplementary aides and services, cannot be achieved satisfactorily.[15]

School districts must search for and identify students who need special education services.[16] Once a child is identified as potentially needing services, a Student Study Team[17] must be convened to determine whether the child needs special education placement or can be served in the general education classroom with Section 504 accommodations. If the Student Study Team determines that Special Education is appropriate, then a full assessment must be made and the school district must establish an Individualized Educational Program (IEP).[18] An IEP is a written document developed by the child's parents, teachers, and a school administrator, as well any other service providers. Once an IEP is required, an elaborate set of policies, procedures, and regulations follows, which include, among other things, the right to a reassessment, the right to file a compliance complaint, due process rights, and strict time lines for IEP meetings.

In addition to IDEA, two other federal laws govern the implementation of Special Education. The first is Section 504.[19] The second is the Americans with Disabilities Act (ADA).[20] Both are non-discrimination statutes requiring that artificial barriers be removed from programs to allow the maximum participation of people with disabilities. However, because IDEA is so sweeping, these two statutes play a relatively minor role in the Special Education structure. The ADA and Section 504 will be discussed in this paper where they are considered important.

A discussion of Special Education laws affecting LAUSD would be incomplete without a discussion of Chanda Smith. Chanda Smith is a class action law suit against LAUSD alleging wide spread problems with the administration of Special Education services to students enrolled in LAUSD. As part of an Interim Settlement Agreement, two teams of experts were hired to conduct a comprehensive examination of LAUSD's delivery of Special Education services and to present recommendations for actions required to return the District to compliance.[21] Over the course of the study, the two teams, with the consent of the parties and Court, began working together to develop the most comprehensive set of recommendations possible. Both teams of experts concluded LAUSD suffered from "a pervasive, substantial and systemic inability to deliver special education services in compliance with special education laws."[22] This conclusion led to a Consent Decree (Consent Decree or the Decree) to be administered by the District Court.

Two experts[23] were appointed Administrators of the Decree. A Consent Decree is a binding judgement signed by the Court which has been agreed to by both parties. In this case, following the release of the Consultants' Report, the parties entered into negotiations which resulted in a Consent Decree which included most of the Consultants' recommendations. The Decree is binding on LAUSD and details the actions LAUSD must take in order to bring the District back into compliance with federal and state law. More than simply mandating that the District find some way to comply with the law, the Decree gives specific orders as to the means necessary to comply.

LAUSD must now implement these specific means, as well as achieve the end of complying with the law. Thus, LAUSD, as it exists today, has little room for discretion in how it must provide Special Education services. The important issue, however, is what effect this Consent Decree would have should there be a reorganization of LAUSD.

The Consent Decree specifically provides for a reorganization of LAUSD, stating that the Decree is binding on any district created as a result of a reorganization of LAUSD.[24] The Court's rationale for ordering the Decree binding on all districts caused by a reorganization of LAUSD was that the purpose of the Decree was to bring LAUSD into compliance with federal and state law, specifically with IDEA.[25] Since any district formed by a reorganization would also have to comply with these laws, these districts would necessarily have to comply with the Decree.

Since Chanda Smith primarily requires LAUSD to comply with federal and state law, it may appear as if little is gained by holding new districts to the Decree. There are two areas of importance. First, being subject to the Decree will make enforcement of Special Education laws easier. By virtue of being subject to a Consent Decree, LAUSD remains under the jurisdiction of the Court and under the supervision of the Administrators of the Consent Decree. If new schools districts were not bound by the Decree and continued LAUSD's practice of noncompliance, a new lawsuit would have to be brought in order to have the rights of students with disabilities enforced.

Second, the difference between compliance with and without the Consent Decree is relevant to the means used to achieve the ends, rather than simply with the ends.[26] For example, every school district is required by law to provide parents with their children's school records within five days of a request. The Court found LAUSD to be grossly out of compliance with this requirement and ordered the school district to comply with this law by installing a centralized computer system that tracks statistical data, assessment results, current IEP's, grades, and other information for every child receiving special education services. If new districts are bound by Chanda Smith, they too will be required to install similar computerized systems in their schools. If, however, the new districts are not bound by Chanda Smith, they are free to devise some other plan which will enable the District to produce the records of students with disabilities within five days of a request. It may be the case that in some new districts this could be achieved by hiring staff and maintaining storage facilities so that such records can be quickly accessed without the use of a centralized computer tracking system. The outcome is the same: records requests must be met within five days, as required by law. The means, however, for achieving the outcome will depend on whether or not the new districts are bound by the Decree.[27]

Even though the language in the Decree is clear that the Decree is binding on any new districts, it is not clear that this is enforceable. Consent decrees are considered to be both contracts between the parties and final judgements made by the court, depending on the circumstances before the court.[28] It is a well settled principle of contract law that a contract is not binding on parties who did not sign the contract.[29] Similarly, judgements made by courts are rarely binding on third parties.[30] In this case, it is obvious that any new district created because of a reorganization of LAUSD will not have been a party to the Decree.[31]

Courts that retain jurisdiction over complex consent decrees are generally given a great deal of discretion in implementing the decree. Case law would also allow this Court to alter the Consent Decree if a circumstance changed.[32] Clearly, a reorganization of LAUSD would be a material change in fact allowing the Court and the parties to renegotiate the terms of the Decree. But it remains an open question as to whether the District Court will have the authority to bind new districts to the Decree.

To comply will federal and state special education laws, any new school district will have to establish and implement a wide variety of policies and procedures to fulfill their obligations under federal and state law.[33] This section of the paper discusses some of the requirements that any new district will have to meet.

A. Types of Programs

Every district must offer a "complete array of programs" in order to provide each child with an appropriate education in the least restrictive environment possible.[34] Therefore, each district must be prepared to provide at least seven different types of Special Education programs. These include, listed from most restrictive to least restrictive: residential facilities, non-public schools, dual placements, special day classes, special day classes with limited inclusion, pull-out classes, and full inclusion. The district must provide all of these programs to those students who need them and also must provide the supportive services the child needs in order to receive a free and appropriate public education.

While issues of LRE are important in determining which program is appropriate for each individual student, a complete array of programs must be available in order to satisfy the LRE mandate. Every child with a disability has the right to be educated as close to home as possible,[35] preferably in their home school. Many full inclusion advocates have successfully argued that LRE requires that the student be in a classroom as close[36] as possible, given the nature and severity of their disability, to the classroom they would be attending if they were not disabled.

1. Residential Facilities

Residential facilities provide students with an appropriate education while also boarding them at a facility which may be hundreds of miles or further from the student's home. These placements are sometimes used for children who are deaf or blind. Also, it is a fairly common placement for students with severe psychiatric or emotional disabilities. The school district where the child's home is located is responsible for that child's education, not the district where the facility is located. Therefore, every district must have established guidelines and procedures for placing children in residential facilities. These guidelines and procedures must comply with LRE and FAPE. Funding for the placement must be to be provided by the child's home district. The establishment and enforcement of the child's IEP are also the responsibility of the home district.

2. Non-Public Schools

A non-public school placement is to be used in cases where the district cannot provide a FAPE. Most often used for children with severe psychiatric or emotional disabilities,[37] these placements are also used for children with learning, visual, hearing, or other disabilities. Again, the home district is responsible for establishment and implementation of the child's IEP and for funding the placement. Every district must ensure that LRE is respected. LAUSD has had particular trouble in this area, often placing children in a non-public school setting without exploring the programs actually available to the child within the district, a violation of LRE and IDEA.

3. Dual Placements

In some instances, it is most appropriate for a student to receive some services from a non-public school while also receiving services from the public schools. In these cases, the child will spend part of each day or week at each site. As with residential and non-public school placements, the home district is responsible for the student's IEP. The home district must also provide reasonable transportation, minimizing as much as possible the time spent on buses during the school day while the child is being transported between locations.

4. Special Day Classes

A Special Day Class is a segregated program for students with disabilities. They may be located on the general campus or may be on a separate campus.[38] Each district will have to ensure that it has the certified staff to teach these classes.[39]

5. Special Day Classes with Limited Inclusion

When special day classes are held on the same campus as general education, often students in special education can be mainstreamed for some subjects. Districts must ensure that general education staff is trained to deal with the child's needs, as required by California law.[40]

6. Pull-Out Classes

Pull-out classes are provided to students who are generally mainstreamed but who need specialized instruction in particular areas. Again, the new districts will have to ensure that a fully qualified staff is available for these programs. The programs must also comply with LRE. Moreover, the teachers who have these students in their general education classes must have the proper training to competently handle the child's needs in that environment.

7. Full Inclusion

The least restrictive placement for a child with disabilities is full inclusion. This does not mean the child does not receive any specialized services from the school. Rather, the district must ensure that support services are being provided and are fully funded. The general education teacher or an in-class aide must be trained to provide the needed services in the classroom environment. The district's responsibility for establishing and implementing IEPs continues when a child with a disability is in a full inclusion program. Under some circumstances, the child's needs may be accommodated through Section 504 accommodations.[41]

B. Search For, Identify, and Evaluate Students With Exceptional Needs

Beyond simply providing a variety of programs, districts have an obligation to search for, identify, and evaluate students with special needs.[42] Thus, under IDEA, any new district(s) will have to establish and implement policies and procedures for seeking out, identifying, and evaluating students with disabilities. The district(s) must employ trained professionals to complete the necessary evaluations on an on-going basis. Each district will also have to create new request forms for the many different special education procedures[43] since those used by LAUSD are extremely complicated and difficult to complete.[44] Due to the complexity of these forms, LAUSD has been ordered by the Chanda Smith Court to completely overhaul the forms currently in use.[45]

Strict time lines have been established by IDEA and other laws so students can be assessed and receive the necessary services within a reasonable amount of time. For example, when a parent requests an assessment of his or her child, the district has 15 days to provide the parent with a written copy of the assessment plan. The district then has 50 days to complete the assessment. Within this 50-day period an IEP meeting must be held. In order for a legal IEP meeting to be held, all of the staff involved with the child must be present. This includes all classroom teachers, parents, an administrator, all therapists, diagnosticians, counselors, and others who play a role or provide services for the child. This IEP will determine what would constitute a FAPE in the LRE.

At least one IEP meeting must be held each year[46] and transfer students must have an IEP at the new school within 30 days of registration.[47] Every three years a complete reassessment must be conducted.[48] The student must be reintegrated into the general education program as soon as practically possible.[49]

When parents disagree with a school district's choice of program, they have a right to request a Due Process hearing. Parents also may file compliance complaints when they believe the child's IEP is not being properly implemented. Policies and procedures for these hearings must be developed by any new district. Again, there are strict time lines associated with the implementation of Due Process hearings and compliance complaints.[50]

Student Study Teams or their equivalents must be established at each school.[51] These must be teams of educational and disability professionals who explore possibilities for providing modifications, either physical or educational, to the general classroom so as to avoid the need for segregated Special Education. The option of keeping the student in the general classroom must be fully explored before a child can be recommended by the school for a special education assessment.[52] Each district will have to rewrite the Local Plan used by LAUSD, which states that Student Study Teams can be used only for students who have dropped out or who are in danger of dropping out of school. This Plan also states that it is appropriate for representatives of community organizations, businesses and industries to be a part of the Student Study Team. This local policy contradicts California state law.[53]

C. Supplemental Services

A wide variety of supplemental services must be provided by districts in order for them to comply with the FAPE requirement. Services that are "related to education" must be provided.[54] Services are related to education if they are necessary to assist a child with a disability to benefit from a Special Education program.[55] Under California law, these are called Designated Instruction and Services (DIS).[56] These services include transportation, specialized equipment, occupational and physical therapy, psychological services, speech and language development and remediation, vision and hearing services, orientation and mobility instruction, adaptive physical education classes, specialized driver's education and training, vocational education, career development services, home and hospital instruction for those unable to attend school, counseling and training for parents and students, health and nursing services at home, social worker services, recreational services, specialized supportive services (such as readers, transcribers, etc.) for low incidence disabilities, SED support, support for fully integrated students, behavioral intervention programs,[57] transition programs,[58] and Early and Periodic Screening, Detection and Treatment (EPSTD) programs and Early Intervention Programs.[59]

Each district must provide a full and competent staff for each of the programs listed above. Teachers must have proper credentials and continuing education. Reliance on unqualified substitutes must be kept to a minimum. Caseload caps, which is the upper limit on the number of students in a classroom, must also be monitored. For example, there is a statutory requirement that speech and language therapists have a caseload cap of 55 students.[60] There are also caps established for class size in the LAUSD employment contract with Union of Teachers in Los Angeles (UTLA).[61] All caseload caps, however, must be based on the nature and severity of the disabilities of the students in the class, not on arbitrary numbers set by budget concerns. Other legal requirements, such as LRE and IEP time lines, must also be observed as these services are provided to students with disabilities.

D. Special Education Local Plan Area

Because students with disabilities tend to benefit from larger school districts, California has divided the state into Special Education Local Plan Areas (SELPA). LAUSD is a single SELPA. It is also the largest SELPA in the state and the second largest Special Education unit in the country. Should there be a reorganization of LAUSD, a decision will have to be made by the state legislature whether to also reorganize the SELPA. This decision would have implications for how services continue to be provided at the local level and for how the districts would receive Special Education funding.[62]

E. Pre-school Education Services and Part H of IDEA

Congress requires that all school districts provide special education and services for all children beginning at age 3.[63] These services are provided in order to meet the following goals: 1) to enhance the development of young children with disabilities; 2) to minimize the long term costs of Special Education services; 3) to minimize the likelihood of institutionalization of people with disabilities; and 4) to enhance the capability of families to meet the special needs of their young children with disabilities.[64] Children with qualifying disabilities must have an IEP beginning at age 3 and all services listed in the child's IEP must be provided in the LRE.[65]

Part H of IDEA[66] covers early intervention services beginning at birth for children who qualify. Under Part H, an Individual Family Service Plan (IFSP) must be established by the local Regional Center in conjunction with the parents and the local school district or SELPA.[67] Part H services are basically "related services."[68] They are provided by the school district, SELPA, or Regional Center.

F. Records

Parents have the right to access all their child's records on 5 days notice to the school.[69] Students who transfer inter- or intra-district also have a right to have their records transferred within 5 days.[70] Additionally, the Family Educational Rights and Privacy Act (FERPA) mandates that each district must establish policies and procedures to protect the confidentiality of these records.[71]

G. Discipline of Students with Disabilities

Each district must have policies and procedures in place to determine how a particular child should be disciplined in light of the nature and effect of his or her disability. Students with disabilities are generally treated the same as their non-disabled peers in matters of discipline such as detention and suspension. Students with disabilities can be punished or suspended for their behavior in the same manner as their non-disabled peers, except in certain areas. For example, under some circumstances, the non-disabled child can be suspended from school in excess of 30 days. A non-disabled student cannot be suspended from school for more than 10 consecutive days without a court order or parental consent.[72]

The most significant differences between the treatment of disabled and non-disabled students in the area of discipline are in the area of expulsion. There are some significant limits on a school district's rights to expel students with disabilities. There are two particularly important procedures to follow. First, an IEP meeting must be held for any student with an IEP who is being expelled from school. An expulsion is a change in placement and whenever there is a change in placement, the IEP team must be convened. Due process hearings and appeals also must be held pursuant to IDEA.[73]

Second, under California law, a school district cannot expel a student with a disability if the misconduct is directly related to his disability or if he was inappropriately placed at the time of the misconduct.[74] Thus, at the pre-expulsion IEP meeting both of these issues must be addressed.

Once a decision has been made by the school administration that a child with a disability has engaged in conduct that may warrant expulsion, the school district must notify the parents and evaluate the child. The IEP team must review this assessment, along with health records and the school discipline records of the child before making a recommendation.[75] The student can be suspended from school for up to ten days while this evaluation is done.[76] Again, due process rights attach to the decision made by the IEP team.

Some districts have implemented creative solutions, such as "opportunity transfers" and "disciplinary transfers," in an attempt to avoid the assessment and due process rights of students with disabilities. While some courts have insisted that these transfers are a change in program requiring reassessment and due process rights,[77] it is far from clear whether these transfers are in fact expulsions. The issues are controversial and each district will have to address the issue by establishing its own policies and procedures.

H. Physical Accessibility

Every district will have to ensure that there is a district-wide plan to make every campus physically accessible for students, teachers, staff, and parents as soon as possible in compliance with Section 504 and the ADA. This does not simply include people who use wheelchairs, but also people with visual impairments and other physical disabilities.

I. Transportation

Every district must provide students with disabilities adequate and accessible transportation. Students with disabilities cannot spend longer than 90 minutes on a bus each direction.[78] The district must ensure that all securement systems on the buses are completely compatible with the wheelchairs used by students.[79] The LRE requirement also applies to transportation so that children with disabilities should be included in the regular bus route as much as practicable. Each child's transportation needs must be addressed in the child's IEP.[80]

J. Programs Affected

Every program and school run by a district must comply with every special education law. This includes Magnet Schools, Charter Schools, and LEARN Schools. It also includes bilingual education and English Second Language (ESL) programs. These schools and programs must comply with the anti-discrimination mandate of IDEA, Section 504, and the ADA. If these programs are offered to non-disabled students, they must also be offered to disabled students, whether or not the child needs accommodations or supportive services. The school must provide all accommodations and services required to ensure the equal participation of students with disabilities in each program or activity listed in the IEP. The district must also provide teachers and staff for these programs who have the

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