Solana Beach School District ordered to pay $580,000 in attorney fees in Doyle case

Solana Beach School District board members have been called out by the Ninth Circuit Court of Appeal for wasting taxpayer money and for denying a free and appropriate public education to a little girl. The district has been ordered to pay $580,000 to the little girl's lawyers, who were dragged by the district from court to court, year after year.

Here's what the board members of Solana Beach School District would say in their own defense: we were trying to protect our resources so we  could spend them on regular students.

But if they're like most school districts, of course, they also fail to give an appropriate education to vast numbers of regular students.  The money saved by violating the legal rights of special education students is likely to go to some administrator or outside vendor rather than to a regular classroom.

I'd estimate that the number of regular students who never reach their full potential, and end up locked-out of the American Dream, is much higher than the number of special education students who are left behind. 

So, where do school districts get the idea that they are free to violate the law? School boards aren't supposed to substitute their own judgments for the law of the land. 

UT-San Diego notes, "The Solana Beach School District has ended up with more than $800,000 in legal bills in a special-education dispute that started over one family’s $6,100 of private-school tuition. The district unsuccessfully fought the Doyle family, now living in Utah, through several federal appeals and attempted to involve the U.S. Supreme Court. A federal court commissioner on Aug. 1 ordered Solana Beach to pay nearly $580,000 in attorney’s fees for the Doyles, on top of hundreds of thousands the district has paid for its own counsel."

The idea is to make it so costly and onerous to sue a school district that future lawsuits will be prevented, and the district will actually save money in the long run. It's sort of like the Vietnam War: schools know they can't win, but they want to let their enemies know that they will pay dearly for challenging a school district.

But wait, you say, these are our children, not armed adversaries. 

And the parents are part of the public that funds the schools!

Well, apparently that's not how school boards see the situation. Believe it or not, school districts actually have lists of parents that are considered "enemies".

The lawyers representing Solana Beach School District in the Doyle case were just doing their job.

The law holds the client--in this case, the school board--automatically responsible for any improper actions in litigating the case. If the board members were to try to shift the blame to the lawyers, I'm confident they would lose. Afterall, the board knew exactly what it was doing. Solana Beach School District was represented by Fagen, Friedman Fulfrost and Stutz Artiano Shinoff & Holtz in the Doyle case.

Our justice system is based on the theory is that if both sides in a case fight equally hard to win, we'll end up with a fair decision a large part of the time. Young lawyers are instructed to fight like hell for their clients. That's the most important rule, the one that everyone seems to follow.

The goal is to end up with a decision that everyone will be willing to accept, whether or not it is actually just. We go along with the decisions for the sake of peace in society. 

We try to ignore the fact that most parents can't afford $580,000 worth of legal assistance.  (I believe the Doyle's were represented by pro bono attorneys, but there aren't enough pro bono attorneys to keep schools honest.)

Schools, of course, can reach deeply into taxpayer pockets to fund their own legal defense.

Also, most lawyers won't sue public entities (particularly not schools and police agencies).  Why not?  Because the school attorneys will tell the jury, yes, sure, this school district might not be a candidate for sainthood, but you don't want to hold it financially responsible, do you?  You don't want to make a school district pay money, do you?  

The result?  Schools can operate quite freely outside the law.

We actually have a decision-producing system rather than a justice system.

Will the Doyle decision cause a change in schools? 

Not unless the voters take some action at the polls.

Solana Beach School District loses after using more tax money for yet another appeal in the Ka. D. v. Solana Beach case

See all Solana Beach School District posts.
See all Stutz Artiano Shinoff & Holtz posts.

Irony alert: One of the partners of the Stutz Artiano Shinoff & Holtz law firm, Leslie Devaney, has been a board member of CALA, Californians Against Lawsuit Abuse, an organization that criticizes unnecessary litigation!

The only good thing that Solana Beach School District did for the taxpayers with its excessive spending on the Ka. D. v. Solana Beach case was to cause trustee Art Palkowitz to decide not to run for reelection. The District didn't intend to do this, of course. It probably thought no one would notice what it was up to.

After a justice on the Ninth Circuit Court of Appeal expressed astonishment that Solana Beach had already wasted so much taxpayer money on the case, Solana Beach School District paid even more public money to the firm to appeal the case to the U.S. Supreme Court.

The Ninth Circuit seemed to be wondering what the school board members were thinking when they decided to pursue the case.

Here's what the justice said on Feb. 17, 2012 in Pasadena:

"I am curious.

"This whole dispute is about counsel [attorney] fees, I assume.

"Nobody in their right economic mind would be carrying this case to the Ninth Circuit that seems to me to involve something like $67,000 [in attorney fees]....

"What's really at stake here in terms of the lawsuit itself is whether you should reimburse somewhere between 6 and 7 thousand dollars [to the parents].

"For this amount of money you've gone through a hearing before a hearing officer, a proceeding in the District Court, and now you're appealing to the Ninth Circuit.

"It seems to me, and I don't blame you necessarily, I just want to be clear. This whole dispute is about counsel fees, isn't it?"

On Nov. 26, 2012 the Supreme Court denied the appeal.

Solana Beach School District special education preschool case goes to Court of Appeals

Case goes to Court of Appeals
Del Mar Times
Oct. 4, 2011

A legal case involving a Solana Beach School District special education preschool student, begun in August 2010, is now with the United States Court of Appeals for the Ninth Circuit. The case is being handled by Stutz Artiano Shinoff & Holtz lawyer Dan Shinoff.

The case has been paid in large part by the Special Education Legal Alliance, formed seven or eight years ago to support potentially precedent-setting cases where the outcome could impact other districts and other cases, said SBSD superintendent Leslie Fausset.

“What happens in so many of these cases is that even if you are right, you have a tendency to settle because it’s often less expensive to settle than it is to go through the full court process,” Fausset said.

She said there is a tendency for districts to settle even when they may not agree because “it is expeditious to do so financially for the district.”

The purpose of the alliance, she said, was for school districts to contribute to a fund to provide resources that would support districts “when they were in the midst of a case that potentially was precedent-setting.”

“Laws get written, and there’s a lot of interpretation with any written law,” Fausset said. “When you settle, you don’t have the opportunity of getting full, clear definition of the intent of the law.”

The Special Education Legal Alliance provides a way for districts to pursue a case through the courts to receive more comprehensive interpretation of the law. “The lack of definition is not helpful,” she said.

The alliance is county-run, Fausset said, and is voluntary for districts. She said her district makes an annual contribution of about $.50 per student, for a projected cost for 2011-2012 of approximately $1,418.50.

“I’ve been very supportive of it,” Fausset said of the legal alliance.

The case to date has cost about $51,650 — about $11,600 from the district and about $40,000 from the legal alliance.

Maryland mom who killed son agonized over school costs

Md. mom who killed son agonized over school costs
By ERIC TUCKER
Associated Press
08.08.11

WASHINGTON -- Ben Barnhard had reason to be optimistic this summer: The 13-year-old shed more than 100 pounds at a rigorous weight-loss academy, a proud achievement for a boy who had endured classmates' taunts about his obesity and who had sought solace in the quiet of his bedroom, with his pet black cat and the intricate origami designs he created.

But one month before school was to start, his mother, psychiatrist Margaret Jensvold, shot him in the head, then killed herself. Officers found their bodies Tuesday in the bedrooms of their home in Kensington, Md., an upper-middle class Washington suburb. They also found a note.

"School - can't deal with school system," the letter began, Jensvold's sister, Susan Slaughter, told The Associated Press.

And later: "Debt is bleeding me. Strangled by debt."

Although family members said they were stunned by the killings, they also said Jensvold had become increasingly strained by financial pressure and by anguished fights with the county public school system over the special-needs education of her son, who had an autism spectrum disorder. They said the school district - apparently believing it could adequately educate Ben - had refused to cover tuition costs for the boy to attend a private school for special-needs students. Jensvold didn't have the money herself and didn't want to return her son to public school, where relatives said she felt harshly judged and marginalized and where Ben had struggled.

"It was a huge stress," Slaughter said. "It's very hard being a single parent under any circumstances, but to have a high-needs child is overwhelming. And then to have him inappropriately placed in the school, and have the school fighting with her, was really traumatic."

Jensvold also offered an explanation for taking her son's life.

"She did mention in the note that she knows people whose parents committed suicide when they were children and how difficult and traumatizing that was, and she didn't want to do that to Ben," Slaughter said.

"It is very true," she added. "I can't imagine Ben ever recovering from the loss of his mother."

Special needs education is an emotionally freighted issue, perhaps especially so in Montgomery County - an affluent region where parents tend to be actively engaged in education and where schools are consistently rated among the country's best. School district spokeswoman Lesli Maxwell said that privacy laws prevented her from discussing the particulars of Barnhard's case, but that the district offered vast options for its 17,000 special-education students and will refer students for private schooling when it can't meet their needs.

Jensvold, a Johns Hopkins-educated psychiatrist specializing in women's health, was passionate and determined. She made news in 1990 by filing a gender discrimination lawsuit against the National Institute of Mental Health, where she was a medical staff fellow. A judge ultimately ruled against her, calling her version of events an "illusion." She later had her own private practice but most recently was working at Kaiser Permanente.

She also was a protective mother, constantly fighting with Montgomery County schools over how best to accommodate her son. He was her world, said her divorce lawyer, Robert Baum.

"She came with an album of pictures of her in a very warm and endearing type of situation," he said. "Her arms around him playing outside, amusement parks, all the types of things you'd love to see of parents dealing with their kids."

Ben was an active infant - his family nicknamed him "ATB," or All-Terrain Baby - but became increasingly withdrawn and isolated, and relatives said as a child he developed an autoimmune disease that's sometimes triggered by strep. A divorce court filing lists 18 specialists involved in Ben's care, and Jensvold's own suicide note hints at some of the child's difficulties: "writing problems, migraines, hearing things" - and "a bit paranoid."

He had a small group of friends and enjoyed computers, origami, animals and picking tomatoes with his grandmother, his father said. But school was difficult for him, and his weight - topping 275 before his weight loss-program - made him a target for teasing. He found comfort with even more food.

"He used to say, `Mom and Dad, I don't want to go to school. I don't want to deal with those people. They're mean to me and they hurt me,'" recalled Jamie Barnhard, Ben's father and Jensvold's ex-husband. "It broke both of our hearts."

The couple placed their son in the county's special education program, but Barnhard said his son struggled in the system. He spent about nine months at Wellspring Academies, a weight-loss boarding school in North Carolina, returning in May more than 100 pounds slimmer and more confident.

"He wanted to ride his bike. He wanted to be a kid again," Barnhard said. "He wanted to go out and have fun. He wanted to fly airplanes with his dad. He wanted to just do anything."

But there were still concerns about where to send Ben to school.

Jensvold appeared consumed by his education at her father's memorial service last spring, Slaughter said. She confided that she was having trouble paying the roughly $50,000 tuition for Ben to attend Wellspring. She presented a binder about five-inches thick detailing his academic needs, along with a chart showing how his IQ had fallen over the years.

At the end of June, Slaughter wrote her sister to say their mother would pay for Ben's education for the coming year. Jensvold had planned to enroll her son in the Ivymount School, a Rockville, Md., private school specializing in autism and other learning disabilities. Tuition there ranges based on a child's needs, but can be more than $60,000, the school said Monday. Her mother said she'd send a check.

In her final months, Jensvold only sporadically communicated with her family, as she had for years, Slaughter said. Emails frequently went unreturned, mail sometimes unopened.

Ben spent July 4 with his divorced parents aboard his dad's restored boat, treading past the Washington Monument with a picnic dinner of barbecue and pineapple. It was a final moment of serenity.

He died a month later. One day after his body was found - co-workers hadn't heard from Jensvold for days and newspapers had accumulated outside the house - a $10,000 check from Jensvold's mother arrived, Slaughter said.

Why So Many Black Children Are Dubbed 'Emotionally Disturbed'

Why So Many Black Children Are Dubbed 'Emotionally Disturbed'
Voice of San Diego
EMILY ALPERT
September 25,2009

Buried in all the documents for the school board meeting next Tuesday is a disturbing report on why San Diego Unified identifies so many black students and English learners for special education.

This isn't a surprise: Another expert studied San Diego Unified two years ago and found that black children are disproportionately likely to be labeled as emotionally disturbed and English learners also make up a disproportionate part of special education classes. Harvard professor Thomas Hehir worried that students shunted into separate classes might be underserved compared to if they had stayed in mainstream classes and been given extra help.

But the report sheds light on why, exactly, this seems to be happening. The "current system focuses on identification rather than prevention and punishment rather than support," wrote Jaime Hernandez, a consultant hired by the school district to examine the problem. His findings include:

# The school district doesn't have good ways to help children with behavioral and academic problems in ordinary classrooms. It relies too heavily on punishments to discipline kids, instead of methods that reward and teach children how to behave, like this one used at Edison Elementary.


# Kids are identified remarkably early for special education, which Hernandez believes shows that schools are relying too heavily on special education to intervene when kids struggle...



# There aren't enough options for places to educate children with emotional disturbance, especially places that are less segregated and restrictive. The high number of kids with emotional disturbance that are sent to separate classrooms and schools indicates to Hernandez that the process of identifying children as emotionally disturbed is "driven by placement" -- where the child is sent.


Hernandez recommends that San Diego Unified expand programs such as the one at Edison Elementary (read our article for more details) and develop more ways to intervene and help children before they are diagnosed with a disability to prevent "inappropriate referrals."...

Supreme Court rules against schools who fail to offer FAPE to students with disabilities

Court says public must pay for private special ed
By JESSE J. HOLLAND - Associated Pres
June 22, 2009


WASHINGTON -- The Supreme Court on Monday shifted the landscape for students with learning disabilities, saying parents can in many instances bypass public school special education programs and be reimbursed for private school tuition instead.

The court ruled 6-3 in favor of a teenage boy from Oregon whose parents sought to force their local public school district to pay the $5,200 a month it cost to send their son to a private school.

Under the Individuals with Disabilities Education Act, the nation's special education students are entitled to a "free and appropriate public education." Federal law calls for school districts to reimburse students or their families for education costs when public schools do not have services that address or fulfill the students' needs.

But schools have argued that the law says parents of special education students must give public special education programs a chance before seeking reimbursement for private school tuition. The Forest Grove, Ore., School District said the parents were ineligible for reimbursement because their son had not been in public special education classes.

A majority at the Supreme Court disagreed.

"We conclude that IDEA authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school," said Justice John Paul Stevens, who wrote the majority opinion.

In the case before the Supreme Court, the family of a teenage Oregon boy diagnosed with attention deficit hyperactivity disorder -- who was identified only as T.A. -- sued the school district, saying the school did not properly address the student's learning problems. The family is seeking reimbursement for the student's tuition, which cost $5,200 a month. The family paid a total of $65,000 in private tuition.

In its appeal, the Forest Grove School District said students should be forced to at least give public special education programs a try before seeking reimbursement for private tuition. If not, lawyers argue, parents would bypass public schools and go directly to private school -- and then ask for reimbursement from school systems already burdened by ever-increasing costs.

School districts "can avoid any liability for tuition reimbursement by providing a free appropriate public education to a child with a disability," said lawyer David Salmons, who argued the case for T.A. But "if they fail to do that, they may be responsible for private school tuition if the parents can show that it's an appropriate case."

The court's decision does not require reimbursement, but Stevens said school officials "must consider all relevant factors, including the notice provided by parents and the school district's opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child's private school education is warranted."...

Teaching tips for teachers of one or more special needs kids

The people at Teaching Tips.com have posted the Ultimate Guide to Special Needs Teaching: 100+ Resources and Links by Laura Milligan.

FREE SPECIAL EDUCATION SEMINAR AT THE ENCINITAS LIBRARY

Someone sent the following information to me:

FREE SPECIAL EDUCATION SEMINAR AT THE ENCINITAS LIBRARY

Is your child's disability affecting his/her education? Then this seminar is tailored for your family. The La Jolla Learning Foundation is hosting a FREE Special Education seminar with guest speaker Attorney Thomas S. Nelson.

Thomas Nelson is a Special Education Attorney with over 22 years of experience in litigation and advocacy in special education. He has helped many families advocate for an appropriate education for their Children with Special Needs, allowing students to reach their full potential and make meaningful contributions to society.

In this seminar Mr. Nelson will cover:

• Individuals with Disabilities in Education Act (IDEA 2004).
• IEP’s, eligibility, reimbursements, placements and discipline.
• Empower families through education and enforcement of their child’s special education rights.

For information please contact Jennifer Stephan at (619) 607-0950.
Date: June 12, 2008
Time: 5:00 P.M.
Place: The Encinitas Library at 540 Cornish Drive, Encinitas
California 92024


Coming South On the I-5 Directions:
Take the ENCINITAS BLVD exit toward ENCINITAS.
Turn RIGHT onto ENCINITAS BLVD/ CR-S9.
Turn LEFT onto S VULCAN AVE.
Turn LEFT onto E D ST.
Turn RIGHT onto CORNISH DR.
End at 540 Cornish Dr Encinitas, CA 92024-4511

Parents will demonstrate at the (belated) training session for OAH judges at USD

When: MONDAY, MARCH 10, 2008

At: 4:00 P.M.

Where: University of San Diego

We'll meet at the west entrance of USD, on West Marian Way in Linda Vista

Contact: Dayon Higgins

Telephone: 858-538-9743


The Office of Administrative Hearing Judges are scheduled to attend training courses at University of San Diego campus for the entire upcoming week of March 10th though March 14, 2008.


Parents of Children With Disabilities Will Be Demonstrating Against the California Department of Education Contract With The Office of Administrative Hearing Judges “OAH”.



Concerns

Lack of oversight and fairness, decisions are biased and disproportionably skewed in favor of the school districts. School districts with their high paid attorneys win over 90% of the administrative hearing cases with the new OAH”s officers against parents with student with disabilities. With the former California Department of Education contract with the Special Education hearing officers “SEHO” at Mc George School of Law, parents won 50% percent of the time.


Lack of legislative oversight and transparency has been lacking with gaps in OAH’s reports regarding their activities.


Lacks of training as required by federal law, OAH judges do not have any formal training in special education law and handle mostly other unrelated cases.


OAH switched to a more expensive mediation system whereby mediators are regular or pro term judges. Under the new contract parents must be attorneys or hire attorneys. Previously, under SEHO administrators were trained professionals, in many cases educators who were committed to the special education mediation process.


Parents are requesting legislative intervention and an audit by The California State Senate. Without the Senate intervention thousand of special education students will be displaced and their parents will continue to incur astronomical costs with very little chance of success.

Untrained OAH hearing officers agree with school districts 90% of the time

The Office of Administrative Hearings (OAH) disregards the law in case after case. 90% of special education cases are decided in favor of the district.

The public would save money, and justice would be far better served, if the officer simply flipped a coin.

School attorneys, like lawyer Daniel Shinoff of Stutz, Artiano Shinoff & Holz, make millions dragging out these cases, when the outcome is almost assured from the start.

This is lawsuit abuse by school districts and school attorneys. Who's responsible? The Joint Powers Authorities who have improper relationships with both the attorneys and insurance companies. Ironically, Leslie Devaney of Stutz Law firm is an ardent supporter of CALA, Californians Against Lawsuit Abuse. CALA never suggests giving less money to lawyers. Instead, it demands that less money be given to victims.

Lawyer Ellen Dowd has filed a class action suit regarding special education against the California Department of Education.

I have placed links to the complaint and the supporting exhibits on this page of my website.

Were Poway Unified and San Diego Superior Court out of line in Lindsey Stewart case?

The California Court of Appeal is questioning whether the Poway Unifed School District v. Lindsey Stewart case was handled properly. The question is, can a small debt in a limited case be turned into an unlimited case with a $25,000 warrant for arrest?

Also, Poway Unified School District has stopped selling (for $25) the "winning" brief in this case.

Shame on PUSD for its malicous actions against a parent who was struggling to get appropriate attention for her child.

On August 11, 2005, the California Special Education Hearing Office granted the District's motion for sanctions against Stewart for her failure to notify it and SEHO in a timely manner of her withdrawal of her request for a hearing. SEHO issued an order granting the District $3,091.25 in sanctions and costs.

More about this case can be found at San Diego Education Report Website, Lindsey Stewart.

POWAY UNIFIED SCHOOL DISTRICT v. LINDSEY STEWART, No. D048901 (107 LRP 31437 (Cal. Ct. App. 6/06/07)