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 Article of Interest - Recent Court Cases

Judge Finds Official Liable for Denial of Special Ed

Parents Gain Tool in Fight to Make Schools Meet Kids' Educational Needs
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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. 5, 2002).

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 monetary damages.

"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 compliance."

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 Wyner.

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 adds.

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 documents.

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 trouble.

Andrew was diagnosed with a depressive disorder and placed in residential group homes in Fresno and Petaluma until last year.

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 home.

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 argument.

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 for her.

"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 there."

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 change.

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