Two associations of parents of children with disabilities filed a federal lawsuit in Sacramento today alleging that the California Department of Education (CDE) is systematically failing to provide California children with a statutorily mandated education.

Citing reports produced by CDE itself, the lawsuit alleges that the state agency has failed in its frontline responsibility to monitor, investigate and enforce local school districts’ obligations to provide an appropriate education to students with disabilities.

Under the federal Individuals with Disabilities Education Act (IDEA), children with disabilities must be provided a “free appropriate public education” [FAPE] “designed to meet their unique needs and prepare them for further education, employment, and independent living.”

The lawsuit seeks to force CDE to actively fulfill its statutory obligations to ensure the provision of FAPE, rather than passively record the districts&rsquo failures.

Among other shortcomings, the Complaint alleges that California school districts are failing to: identify children with disabilities at an early age; properly assess and categorize the children’s disabilities; develop and implement individualized education programs and educate them “to the extent possible” in the “least restrictive environment,” that is, with children attending general education classes.

In one example, the Complaint alleges that “Alicia” (not her real name), a six-year-old with a form of Autism has been tied to her chair to restrain her fidgeting, a natural consequence of her disorder, rather than receiving behavioral support services. Alicia’s parents, non-English speakers, first learned of the physical restraints from the police. The school district never bothered to notify them.

“Margaret” is an eight-year-old with Retts Syndrome who has remained at home for almost four months. According to her school District, the paraprofessionals assigned to work with her have refused to do so because her challenges are different than those of others.

The Complaint also details how school districts use federal special education funds to resist parents seeking those very services. One district spent $80,000 on attorneys’ fees in an unsuccessful effort to avoid reimbursing parents the $4500 cost of an independent educational evaluation.

Another district had experienced an increase of 150% in due process hearings over the past year. Due process hearings are costly procedures used to obtain an administrative adjudication of a child’s entitlement to educational placement and services.

The Complaint relies on CDE’s own statistics to document California’s failure to provide FAPE. California children with disabilities remain isolated from their peers and the general education curriculum at an unreasonably high rate.

Racial and ethnic discrimination is also endemic, according to the plaintiffs.
Statewide statistics show that African-American students are disproportionally categorized as having “emotional disturbances” while Latino students are disproportionally categorized as having “Mental Retardation.” The categorization of the child, according to the reported data, has significant repercussions on the educational placement and services.

Plaintiffs’ lead attorney, Rony Sagy of Sagy & Associates in San Fracisco, highlighted
the need for a prompt resolution. “The stakes for these young people and their parents could not be higher. Taxpayers’ money is increasingly being spent on legal fees to fight parents, rather than provide their children with the educational services they need and deserve.”

Sagy said that Plaintiffs hope to minimize the cost of litigation by engaging CDE in a mediated process, but CDE has yet to respond to the invitation to engage in alternative dispute resolution process.

The Concerned Parents Association (CPA) is a statewide association of parents of children with special needs formed to promote the education of their children and to support the efforts of local parent groups, such as the Morgan Hill Concerned Parents Association. Linda McNulty, CPA Secretary, noted, “Parents across California face similar treatment at the hands of local school districts and CDE. By organizing as a statewide group, we have the opportunity to address these issues on a systemic basis. Many of the association’s beneficiaries are low income and use English as a second language.” Also representing plaintiffs with Sagy & Associates is attorney Stephen Rosenbaum of Berkeley.

(Morgan Hill Concerned Parents Association, et.al. v. CDE; Case # 2:11-cv-03471-KJM-EFB)