Official Liable for Denial of Special Ed
Gain Tool in Fight to Make Schools Meet Kids' Educational
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A school official is liable for not meeting a boy's needs.
Parents of special education children who claim a school
district is failing to meet their children's needs may have a
new weapon against school officials.
On Dec. 5, a federal judge ruled that a Santa Barbara High
School District administrator was personally liable for
damages under the Civil Rights Act for violating a mother's
right to get a "free appropriate public education" for her
special-needs son, as required by the Individuals with
Disabilities Education Act. Goleta Union Elementary School
District v. Andrew Ordway, CV99-07745 (C.D. Cal., verdict Dec.
Cynthia Ordway-deNeveu alleged Diana Rigby, director of
student services for the Santa Barbara High School District,
placed her son, Andrew, in a new school four years ago without
making sure the school met Andrew's needs.
Ordway-deNeveu's attorney, Steven Wyner, a sole practitioner
in Manhattan Beach, says this is the first case nationwide in
which a school official has been held personally liable for
"I feel this is a landmark decision because it is going to
hold school officials personally accountable for complying
with the law," Wyner says. "That's the only way there will be
Because school districts in California are partially funded by
the state, they are immune to lawsuits seeking damages under
federal law. In the past, school districts have been ordered
to reimburse parents for educational expenses and to provide
compensatory education when they were found to have denied
students a free appropriate public education, according to
Marc Miles of Carpenter, Rothans & Dumont in Los Angeles, who
represents Rigby, says he may challenge the ruling.
Eight of the 11 federal appellate courts nationwide have held
that a person cannot recover money damages under the Civil
Rights Act for violations of the Individuals with Disabilities
Education Act, Miles says. The 9th U.S. Circuit Court of
Appeals, which handles appeals from California, is the only
remaining district that has not ruled on this issue yet, he
The 2nd and 3rd U.S. Circuit Courts of Appeal ruled in favor
of the parent in 1987 and 1995, respectively, in cases that
applied the same legal argument.
Given the discrepancy in findings among the circuit courts,
Miles says he may also appeal the case to the U.S. Supreme
Court, which has yet to rule on the issue, if the appellate
court votes in Ordway-deNeveu's favor.
"There is a split in authority," Miles says.
Ordway-deNeveu alleged that Rigby transferred her son from
Goleta Valley Junior High School to La Colina Junior High
School in March 1998 without assessing Andrew's special
education and behavioral needs and without investigating
whether his placement was appropriate. In 1993, Andrew was
diagnosed with having difficulties with his short-term memory
and attentiveness and therefore was entitled to special
education by law.
When Andrew started 7th grade at Goleta Valley, he joined a
gang - his moniker was "The White Ghost" - and began having
academic and disciplinary problems. He was getting bad grades,
suspended for fighting and possessing a razor knife, and
disciplined for choking a student, according to court
On March 24, 1998, after his transfer to La Colina, he was
arrested at Goleta Valley for trespassing on school grounds
and for possessing antique coins he had stolen from his
physician, according to court papers.
"He was beyond control - parental control, school control and
self control," Ordway-deNeveu, who was a single mother back
then, says. She has since remarried.
Overwhelmed, Ordway-deNeveu requested that Andrew be taken
into juvenile detention. Ordway-deNeveu requested a hearing
before the California Special Education Hearing Office. She
believed her son was denied a proper public education and
needed to be put in a strictly supervised setting, which would
have dealt with his behavioral problem and kept him out of
Andrew was diagnosed with a depressive disorder and placed in
residential group homes in Fresno and Petaluma until last
On April 30, 1999, the hearing officer found that the Santa
Barbara High School District failed to give Andrew a free and
appropriate public education. He ordered the district to
reimburse Ordway-deNeveu for educational costs and required
that the Santa Barbara County Mental Health Department repay
her for the costs of putting Andrew in a residential group
Ordway-deNeveu says her expenses for Andrew ranged from $3,000
to $6,000 a month.
The school district appealed the hearing officer's decision by
filing a federal lawsuit. But U.S. District Judge Dean
Pregerson upheld the findings. Rigby, who was sued by Ordway-deNeveu
in a counter-claim, asked for summary judgment, contending she
was entitled to qualified immunity. Pregerson rejected her
Trial on Ordway-deNeveu's damages is scheduled for Jan. 21,
but Wyner says he will ask for an extension because his client
is recovering from spinal surgery.
Ordway-deNeveu says the last four years have been a nightmare
"When the decision came in I was ecstatic," she says. "It's
not just a matter of money, it's the issue that is at stake.
Being a school official, your No. 1 priority should be to
follow the procedures and protocols. ... I feel like with this
decision I've done something right for the other parents out
Andrew, now 17, is a senior in Crescenta Valley High School's
special education program and wants to become an electrician,
his mother says.
"It's like night and day," Ordway-deNeveu says of her son's