[1]Chanda Smith v. LAUSD, Case No. CV 93-7044-LEW, Consultants' Report, October 1995. Louis Barber, Ph.D., Mary Margaret Kerr, Ed.D. at 57.
[2]Id.
[3] Id at 132.
[4]Special Education Rights and Responsibilities, Sixth Edition. Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI). Copyright 1992 by CASE and PAI, revised July 1995.
[5]Case No. CV 93-7044-LEW. See infra at 5.
[6]20 United States Code (U.S.C.) Sec. 1401(16).
[7]California Education Code (C.E.C.) Secs. 56300 et seq.
[8]Although these accommodations are not technically Special Education, these services are legally required and are often, but not always, provided through an Individualized Education Plan. (IEP) (A more complete discussion of IEPs can be found on page 5.) Section 504 accommodations are especially important to "low-incidence" disabilities, such as blindness, deafness, or special learning disabilities. Because Section 504 accommodations are closely related to Special Education, they will be covered throughout this paper.
[9]29 U.S.C. Sec. 794.
[10]20 U.S.C. Sec. 1400 et seq.
[11]Title 20 U.S.C. Sec. 1401(18).
[12]Title 34 Code of Federal Regulations (C.F.R.), Sec. 300.550(b)(1)(2).
[13]5 California Code of Regulations (C.C.R.), Sec. 3001(b).
[14]34 C.F.R. Sec. 300.550.
[15]34 C.F.R. Sec. 300.550(b)(1).
[16]IDEA mandate 1414(a)(1)(A)
[17]A Student Study Team should be made up of teachers and experts. However, LAUSD's Local Area Plan allows for others, such as members of the committee, to be on these teams. The Consultants' Report addressed this issue, finding LAUSD's inclusion of non-educational personnel to be illegal. See Consultants' Report at 84-6.
[18]Title 34 C.F.R. Sec. 300.4.
[19]See note 8, page 3, for a discussion of the importance of Section 504 to these issues.
[20]42 U.S.C. 12101 et seq.
[21]Consultants' Report at 1.
[22]Id at 3.
[23]The administrators are Dr. Barber and Dr. Kerr, who had led the two teams of experts involved in the study under the Interim Settlement Agreement.
[24]"This Consent Decree shall be binding on any school district or other entity that is created as the result of any reorganization of the Los Angeles Unified School District," Decree at 72.
[25]Decree at 73.
[26]Section IV of this paper will deal with requirements new districts will have to comply with whether or not they are bound by Chanda Smith.
[27]An additional area of concern with respect to Chanda Smith is attorney fees, court costs, and implementation costs if there is a reorganization of the District. If there is a break-off of one or more areas of LAUSD, leaving behind a core LAUSD, and the Decree becomes unenforceable against these new districts, it is conceivable that a much smaller LAUSD with fewer resources could be the only entity left responsible for the attorney fees and other expenses required by the Decree.
[28]California State Automobile Association v. Cooper, 50 Cal. 3d 658 at 661; 788 P.2d 1156 at 1157 (Cal. Supreme Court 1990).
[29]See generally, Contract Law and Its Applications, Arthur Rosett, University Casebook Series, fifth edition 1994, page 780 et seq.
[30]Zipes v. Transworld Airlines, Inc. 455 U.S. 385, 102 S.Ct. 3141. (Judgement against airline for discrimination, including an order against non-party union to reinstate seniority upheld.)
[31]The question will be whether the new districts are found to be in privity with LAUSD. It is clear that when a public official is sued in his or her official capacity and an injunction granter this injunction is binding on successors to that position, when the successors were not a party to the original law suit. In the case of LAUSD, there is also the added complexity that there is a governmental agency bound by the Decree. There is no way to accurately predict how a court would treat the idea of successorship and privity between the new districts and LAUSD under these circumstances.
[32]Rufo v. Inmates of Suffolk County Jail 502 US 367 at 380, 112 S.Ct. 748 at 758. (1988)
[33]For a more complete discussion of a district's legal obligations in California, please see Special Education Rights and Responsibilities.
[34]20 U.S.C. Sec.1412(5)(B) and 1414(a)(1)(C)(iv); 34 C.F.R. Sec.300.550.
[35]34 C.F.R. 300.552.
[36]"Close" refers to both location and style of education.
[37]Called SED for "Severe Emotional Disturbance."
[38]It is unclear whether a segregated site is actually consistent with LRE requirements. It is, however, fairly clear that the number of segregated cites in LAUSD is too high and it is likely that any new district will also have to begin the process of desegregating special education facilities located at self-contained sites.
[39]LAUSD has had a chronic problem of using untrained and unqualified substitutes on a regular basis to staff their special day class programs. Consultants' Report at 98-101.
[40]C.E.C. 56243.
[41]For example, some children will simply require that material be provided in an alternative format, such as big print. Other students may need to have medications administered during school hours or sit in the front of the room so they can seen the chalk board. Still other students will need wheelchair access or to be allowed Section 504 to eat in class in order to maintain their blood sugar levels. Section 504 accommodations may also include additional testing time for tests, the use of a computer for exams, or having the teacher repeat instructions several times. Any accommodation to the generalized delivery of educational services that take place on the school campus, without the need for an IEP, is a Section 504 accommodation. For many students this is an efficient means of providing them with a FAPE in the LRE.
[42]IDEA mandate 1414(a)(1)(A)
[43]These procedures include request for assessment, request for IEP meeting, request for fair hearing, request for additional testing, request for additional accommodations.
[44]The Consultants' Report sites a readability study to show that filling out Special Education forms used by LAUSD requires a post-college level education. Consultants' Report at 80.
[45]Decree at 36.
[46]34 C.F.R. Sec. 300.343 (d).
[47]C.E.C. Sec. 56325.
[48]34 C.F.R. Sec. 300.534; C.E.C. Sec. 56381.
[49]C.E.C. 56345.
[50]See generally Special Education Rights and Responsibilities. Community Alliance for Special Education and Protection and Advocacy, Inc. Chapter 6.
[51]C.E.C. 563030
[52]Though it cannot be used by the school district as a tactic to delay special education assessments which are requested by a parent, it can be a useful mechanism for allowing a child to receive a FAPE in the general classroom.
[53]See Consultants' Report p. 84-5.
[54]20 U.S.C. 1401(a)(17); C.F.R. 400.16.
[55]C.F.R. Sec. 300.16.
[56]C.E.C. 56363; C.C.R. 3051.
[57]As required by the Hughes Bill, C.E.C. Sec. 56520-56524.
[58]34 C.F.R. Sec. 300.346.
[59]See section "E. Part H of IDEA and Early Intervention Services," page 17, for a discussion of Early Intervention Programs.
[60]C.E.C. 56363.3.
[61]Consultants' Report at 141-142.
[62]For more information on Special Education funding issues, see the Funding portion of this document.
[63]C.E.C. Sec. 56001(b) and 56440(c).
[64]20 U.S.C. Sec. 1471.
[65]34 C.F.R. Secs. 300.550-300.556.
[66]20 U.S.C. Sec. 1400 and following.
[67]Regional Centers were established under the Lantherman Act in California to assist individuals with developmental disabilities. Young children under age 3 or 5, depending on the qualifying condition, can qualify for Regional Center services, including case management, under a different standard than if they are older. The standard is demonstrated developmental delays, an established risk condition, or a high risk condition. It is important that young children can qualify when they are at risk because developmental delay and mental retardation (which are the standard for adult qualification for services) often do not show up in a child until he or she is several years old. This is especially true in cases where the child has a chromosomal disability, such as Down's Syndrome. Because the standard is "at risk" and not demonstrated developmental delays, children who are at risk of developing developmental disabilities are not denied services at the time when intervention can be the most beneficial. SB 1085.
[68]See discussion of "related services" on page 15.
[69]C.E.C. 49069.
[70]5 C.C.R. 3024a.
[71]20 U.S.C. Sec. 1232(g)
[72]C.E.C. Sec. 48911(h); Doe v. Maher EHLR 557:353, 361.
[73]C.E.C. Sec.48915.5.
[74]C.E.C. Sec. 48915.5(a).
[75]C.E.C. Sec. 48915.5(e).
[76]Honig v. Doe, EHLR 559:231 (United States Supreme Court No. 86-728, 1988) .
[77]Student v. Saddleback Valley Unified School District, SN 60-94; Student v. Oxnard Elementary School District, No. 77794A.
[78]See Consultants' Report at 133.
[79]49 C.F.R. 571.222.
[80]C.E.C. Sec.56342.
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