Student v. Rialto Unified School District

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT,

OAH CASE NO. 2014040978

v.

RIALTO UNIFIED SCHOOL DISTRICT.

EXPEDITED DECISION

Student, by and through his legal guardian, filed a Due Process Hearing Request on April 21, 2014, which stated claims that required both an expedited hearing and a non-expedited hearing. 1 On May 30, 2014, the non-expedited hearing in this matter was continued at the parties’ joint request to September 8, 2014.

Clifford H. Woosley, Administrative Law Judge , Office of Administrative Hearings , State of California, timely heard the expedited portion of this matter in Rialto, California, on May 20, 21 and 27, 2014.

Attorney Michael Smith appeared on Student’s behalf. Student’s guardian was present throughout the hearing.

Attorney Karen E. Gilyard represented District; attorney Joanne Kim attended the first day of hearing. Special Education Coordinator Veronica Smith-Iszard attended on behalf of District. East Valley Special Education Local Plan Area Program Director, Laura

OAH set the expedited and non-expedited claims for separate hearings. The expedited claims proceeded to hearing with no continuances. (34 C.F.R. § 300.532(c)(2).)

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Chism, attended for two hearing days.

On May 27, 2014, the hearing concluded and the record remained open to allow the filing of written closing argument. The parties timely filed briefs on June 5, 2014, at which time the record was closed and the matter submitted.

ISSUES

1.

Was District required to conduct a manifestation determination, pursuant to Title 20 United States Code section 1415(k)(1)(E), 2 as a result of District's April 2012 student attendance review board proceeding concerning Student’s attendance? 2.

If so, was the conduct which formed the basis of the April 2012 student attendance review board proceeding a manifestation of the Student’s disability?

SUMMARY OF DECISION

Student met his burden of proof on Issue One and demonstrated District was obligated to conduct a manifestation determination, as proscribed by section 1415(k)(1)(E). District’s student attendance review board determined that Student, who was eligible for special education, violated the code of student conduct requiring regular attendance and as a result, changed Student’s placement. Section 1415(k), which requires a manifestation determination meeting, applies to any violation of a code of student conduct that could result in change of placement.

Student did not meet his burden of proof on Issue Two. Student did not demonstrate the conduct that formed the basis of the review board action was a manifestation of Student’s disability. Student’s chronic absenteeism did not have a

All code section references are to Title 20 of the United States Code, unless otherwise designated.

Accessibility modified document direct and substantial relationship to Student’s disability nor was a direct result of District’s failure to implement Student’s individualized education program (IEP). Student failed to introduce substantive or persuasive evidence showing why he was chronically absent from school, other than the Guardian’s general testimony of anxiousness and resistance. Student did not testify, offer supportive testimony from teachers, administrators, psychologist, or healthcare providers, or provide a copy of the IEP document which formed the basis of his manifestation claim. Accordingly, Student’s chronic absenteeism was not shown to be a manifestation of his disability.

FACTUAL FINDINGS

1.

At the time of hearing, Student was a 16-year-old tenth grader who first became eligible for special education services in 2005 under the eligibility category of other health impaired, due to attention deficit and hyperactivity disorder (ADHD). He was also eligible as a student with a specific learning disability. His maternal grandmother had been his legal guardian (Guardian) since he was a toddler, along with his older sister and younger brother. 3 Student, his brother, and Guardian had been homeless for many years and at all times relevant to this decision. Guardian enrolled Student as an eighth grader at District’s Kolb Middle School (Kolb) on or about January 11, 2012.

2.

When he started at Kolb, Student had already attended school in at least six districts. Student’s academic records document an extensive history of irregular and infrequent school attendance, beginning in the first grade, with numerous disciplinary

The hearing in this case was held concurrently with the expedited portion of

OAH case number 2014040982. A separate expedited decision concerning Student’s brother in that case was issued on August 13, 2014.

Accessibility modified document reports, suspensions, and some manifestation determinations. For the 2006-2007 thirdgrade school year, Student moved to the Cucamonga School District, which conducted a psychoeducational reevaluation and recommended a primary eligibility of emotional disturbance, with specific learning disability and other health impairment as secondary. No documentary evidence indicated that Student’s eligibility for special education services was changed to emotional disturbance. Cucamonga School District referred Student to a county emotional disturbance program, but Student formally exited in November 2006.

3.

In April 2008, Student enrolled at the Claremont Unified School District (Claremont USD). Beginning in November 2008, Claremont USD commenced a triennial IEP, which required numerous continuances and addendum meetings, through May 2009. The IEP offered services, including a referral to a nonpublic school. Guardian consented to the IEP, except for the placement. She thereafter enrolled Student in the California Virtual Academy 4 at Los Angeles, as a seventh grader, but exited him in February 2010. In August 2010, Guardian enrolled Student in the Fontana Unified School District. In September 2011, Guardian enrolled him in the Val Verde Student Success Academy, then moved him to Via Verde Unified School District’s high school, but exited him within a week. 5

CAVA schools offer online curriculum, by credentialed teachers. CAVA students do not attend a physical campus or school building but, instead, participate via computer.

The only documentary evidence of Student’s prior educational history was

District’s August 23, 2013 draft evaluation report, which included a review of Student’s academic and special education records.

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4.

Upon enrollment in January 2012, Guardian informed District that Student had an IEP and provided names of prior school districts. Guardian informed the Kolb assistant principal that Student got anxious whenever he was frustrated. She reported that Student had ADHD, required a one-on-one aide, and always had emotional disturbance listed as his eligibility on his IEP’s. At the time, Student’s last signed IEP was in 2008, from Claremont USD. Guardian did not provide a copy of the IEP to District. 6 Guardian provided District with a mailing address, phone number, and email address. Guardian was homeless and testified that the mailing address was only a post box; 7 she preferred to be contacted by email or phone.

5.

School Nurse Kerry Rafferty-Hull testified at the hearing. She had worked

12 years for District. She was a licensed registered nurse and held both a public health nurse credential and a school nurse credential. Ms. Rafferty-Hull’s duties included monitoring the health of students and providing health assessments in special education. On January 12, 2012, she conducted a vision and hearing screening of Student; he passed both. On the same day, Ms. Rafferty-Hull interviewed Guardian, who said Student had been diagnosed with autism, ADHD, anxiety, and speech disorders. Guardian also said Student was allergic to pork and soy. However, the nurse did not find medical diagnosis documentation for autism, ADHD, anxiety or allergies in Student’s records. Ms. Rafferty-Hull gave Guardian a “Release of Information” form to complete

Neither Student nor District offered the Claremont USD 2008 IEP as evidence.

Guardian asserted that, sometime before April 2012, she told District that the mailing address was no longer any good. However, Guardian did not provide District with a different mailing address and no documentary evidence indicated Guardian changed her mailing address.

Accessibility modified document and sign, authorizing her to contact Student’s doctors. Guardian took the release to complete but never returned the form. Guardian testified that no one from District ever asked her to sign an authorization for access to Student’s medical records. However, Ms. Rafferty-Hull documented that she provided the release to Guardian in Student’s health assessment report. Further, she convincingly testified that she provided the release because it was her standard practice to do so when a parent referred to an undocumented medical diagnosis.

6.

By letter dated January 12, 2012, Guardian requested that District hold an

IEP meeting for Student. Guardian hand delivered the letter to District’s Psychological Services Department, having already asked for the IEP’s the previous day at Kolb. The Psychological Services’ clerk typist sent an email to school psychologist Terrilynn Bryant, informing her of Guardian’s written request for an IEP for Student, noting Guardian’s letter was in Ms. Bryant’s school mailbox.

7.

Ms. Bryant testified at the hearing. In the Fall 2012, she was assigned to

Kolb. Ms. Bryant had no interaction with Student, other than a single conversation. She intended to evaluate Student, but could not because of Student’s absences. 8.

Guardian generally stated that Student would become anxious and would not cooperate in going to school. She said Student did fine at Kolb the first few days, going to class, because he was escorted by another student. However, Guardian said that Student was fearful of the school security and that he would not get in the car to go to school or out of the car once at school. District provided bus passes for Student and his younger brother. Guardian said that they did not arrive at school when they took the bus. Guardian claimed that District refused to provide a bus pass to her so she could accompany her grandsons and assure they arrived at school.

9.

Angela L Brantley had been the Senior Coordinator of District’s Child

Welfare and Attendance program for four years and worked for District almost 17 years.

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She testified at the hearing. Her duties included that of District facilitator for the expulsion process, District mediator for student suspension intervention, chairperson for District’s attendance review board, and the McKinney-Vento District liaison. 8 Her past positions included elementary school principal, elementary administrator, math teacher and math coach. She held credentials in administrative services, single subject secondary mathematics teaching, and cross-cultural language and academic development. 10.

As the McKinney-Vento liaison, Ms. Brantley interacted with Guardian on many occasions. Guardian requested school supplies, backpacks, shoes, and clothing for Student and his younger brother. Ms. Brantley provided these items. Ms. Brantley gave Guardian bus passes for Student and his younger brother, as well as a bus pass for Guardian because Guardian said she needed to accompany the boys on the bus. Ms. Brantley testified that, as the McKinney-Vento liaison, she never denied a request by Guardian. Further, before testifying, Ms. Brantley reviewed her office’s records of the services and items she provided Guardian for Student and his younger brother. She affirmed that the records included copies of the bus passes she provided for both boys and the Guardian. District provided Guardian with a bus pass so she could accompany Student to school.

11.

Kolb assistant principal, Margaret Simmons, addressed a January 30, 2012,

Initial Notification of Excessive Absences to Guardian at the mailing address provided by Guardian. Ms. Simmons informed Guardian that Student’s seven absences over the prior

The McKinney-Vento Homeless Education Assistance Act (42 U.S.C. § 11431, et seq.) is a federal law that provides federal funding for the needs of the homeless and requires districts to ensure homeless students have access to education and other services they need to meet the same academic achievement standards as all students. All local school districts must designate a Homeless Liaison.

Accessibility modified document two weeks were excessive, though some were excused. She noted that absences could become an increasingly difficult habit, affecting Student’s academic and social progress, and offered the school’s services in addressing the problem. By letter dated February 14, 2012, Ms. Simmons sent Guardian a Second Notification of Excessive Absences, noting 14 full days of absences by Student. The letter stated further steps were needed to address the problem, and warned that continued absences would result in a referral to the School Attendance Review Team and that regular school attendance is a requirement for public assistance through the California Work Opportunity and Responsibility to Kids program. On February 21, 2012, Ms. Simmons sent the Third Notification regarding Student’s continuing absences, which informed Guardian that she and Student were referred to the School Attendance Review Team for a mandatory meeting on March 27, 2012. This letter made reference to Education Code section 48262, which set forth the definition of an habitual truant.

12.

Alejandro Gonzalez was the District’s Senior Coordinator of Special

Education. On March 19, 2012, he provided Guardian with a form that waived the 30day timeline for an IEP pursuant to Education Code, section 56325(a) and (b), as well as the 60-day evaluation requirement of Education Code, sections 56302.1 and 56344, in order to complete the necessary evaluations. The District could not meet either timeline because of Student’s absences. Guardian signed the waiver.

13.

Neither Guardian nor Student appeared at the March 27, 2014 meeting.

Therefore, on March 28, 2014, Ms. Simmons and the Kolb principal Monique Means referred Student to the School Attendance Review Board. They prepared a written referral summary. Ms. Simmons and Ms. Means unambiguously identified Student as an eighth grade special education student at Kolb. Student had 206 period absences and, of the 42 days he had been enrolled at Kolb, he had missed 35 days. In the last grading period, Student received either an “F” or no grade in all of his classes.

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14.

Kolb prepared an attendance review board meeting packet, which included District’s “School Attendance Review Board Referral” form. This form was the “cover sheet” for the meeting packet. The form identified Student, indicating his date of birth, age, grade level, sex, and period absences. The form failed to identify Student as a special education student, even though the form had a “special programs” section with an appropriate box to check.

15.

In addition to the referral summary, the meeting packet included form reports from Student’s teachers, a printout of Student’s Kolb attendance record, 9 Student’s grade report, a list of two discipline incidents, a printout of District’s registration information (including Guardian’s identity, mailing address, phone, and email address), and an updated health assessment summary from nurse Rafferty-Hull. Student’s teachers for Algebra 1, Physical Education, Science, English, RSP Study Hall, and Social Studies all stated they could not provide the information requested by the attendance review board form because they did not know the Student, he was always absent, or had never entered their classroom. The nurse’s updated report noted that Student had been absent from school since February 14, 2012.

16.

Kolb forwarded the attendance review board referral packet to District’s

Child Welfare and Attendance office, where Ms. Brantley and her staff processed the paperwork in anticipation of conducting an attendance review board hearing. The attendance review board proceeding was not an expulsion process, for which Ms.

Guardian stated on several occasions that District’s attendance records were inaccurate and that many of the absences had been excused. Student did not, however, introduce evidence regarding the alleged inaccuracies, such as notes from his healthcare providers or Guardian. Absence such evidence, District’s attendance records for Student were accepted as accurate for purposes of this hearing.

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Brantley was District facilitator. The attendance review board proceeding addressed attendance issues. As confirmed by Ms. Brantley’s testimony, a student’s regular school attendance was part of the students’ code of conduct at District. 17.

District’s attendance review board issued a subpoena requiring Guardian’s attendance at the hearing on April 10, 2012. The subpoena stated that the hearing was for the purpose of proposing or promoting alternatives to juvenile or criminal court action and, further, warned that failure to appear would result in an immediate request for referral to the District Attorney.

18.

In preparation for the hearing, a clerk entered the date, Student’s name,

Student’s District identification number, and the name of Student’s school on a standard District attendance review board contract form, consisting of a white original (review board file), a yellow copy (school file) and a pink copy (student/parent). The remainder of the form was left blank. The contract form had three action sections -- for the student, for the parent or guardian, and for the review board. Each action section contained various action statements next to a check box, with a signature line at each section’s bottom. The lower quarter of the contract form stated that it was a contract, with spaces to record the duration of the contract, other officials who were present when signed, and the location of the contract’s execution.

19.

Guardian appeared for the April 10, 2012 hearing, but Student did not. In her capacity as chairperson, Ms. Brantley met Guardian and showed her to a seat, which was in the District’s school board chambers. The panel introduced themselves and called Student’s case. Guardian testified that a panel member stated Guardian had not brought Student to school and that she might be subject to criminal prosecution for failing to do so. Guardian told the review board that Student was on an IEP and said that District did not follow the IEP. She also said that she was homeless, had serious transportation issues, and could not get Student in the car for school. Guardian told the review board

Accessibility modified document that District did not reasonably provide education to Student, that Student required intensive psychological services, and that she was doing everything possible to get Student educated with the proper services. Guardian recalled that the review board was very aggressive, indicating it was her responsibility to get Student to school. 20.

As the review board panel made its decisions during Student’s hearing,

Ms. Brantley checked the applicable boxes on the contract form. In Student’s action section, Ms. Brantley checked one box – “I will attend school and all classes on time. Obey school rules.” In the Guardian’s action section, three boxes were checked, stating that Guardian would: (1) Require her child to attend school and all classes on time each scheduled school day; (2) Cooperate fully with school officials and attend all meetings that were scheduled; and (3) Provide doctor verification when Student was ill or send Student to school to have the nurse verify any illness. The review board action section had three checked boxes: (1) Monitor Student’s attendance and behavior; (2) Refer student to San Bernardino County Office of Education’s Bob Murphy Community Day School (Bob Murphy); and (3) Issue a citation to both Student and Guardian for court appearance if the contract was violated. The contract indicated that it was valid through high school graduation.

21.

At the conclusion of Student’s hearing, Ms. Brantley signed the review board action section as the Chairperson. She wrote “not present” on the signature line for the Student action section. She then reviewed the form with Guardian and had her sign the Guardian action section. She gave Guardian the pink Student/Parent copy of Student’s completed contract. Guardian claimed at hearing that only the Student and Guardian action sections were completed when she signed the form. However, Ms. Brantley convincingly testified that the review board contract process she employed at the time of Student’s hearing was a standard practice, since she had repeated the same procedure for every student in each SARB hearing for two years. Thus, when Ms.

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Brantley presented the form to Guardian for signature, the contract was completely filled out. Guardian received a copy of the competed contract. 22.

Student’s contract did not clearly state that the referral to Bob Murphy was conditioned on whether Student thereafter attended school. Ms. Brantley testified, however, that the review board panel informed Guardian that if Student failed to attend school, District would remove him from Kolb and refer him to Bob Murphy. Further, Ms. Brantley went over the contract with Guardian. Therefore, the contract and the attendance review board hearing process provided Guardian with sufficient notice that Student would be referred to Bob Murphy if he failed to attend school. 23.

Student did not attend school after the review board hearing and was in violation of the contract. Therefore, Ms. Brantley drafted an April 19, 2012 letter to Guardian, informing her that Student was referred to Bob Murphy for the remainder of the spring semester for the 2011-2012 school year and the fall semester of the 20122013 school year. The letter directed Guardian to contact Bob Murphy as soon as possible for registration. The letter concluded by stating that the “placement” was until January 2013 or until Student met the requirements of 90 percent attendance, good behavior and a 2.0 or better grade point average. Then, Student could be considered for readmission to District. Guardian came into District’s offices on April 19 2012, at which time Ms. Brantley personally provided Guardian with the letter. 24.

District’s attendance review board used Bob Murphy as a community day school to which it was empowered to refer habitual truants, as defined by Education Code, section 48262. Once the referral was made, Ms. Brantley’s offices processed the truant like that of a student being referred to a different placement as a disciplinary assignment. District would disenroll the truant from its school and refer the truant to Bob Murphy. Like any public school placement, the parent had the option of using a private or charter school instead of Bob Murphy.

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25.

On April 19, 2012, District faxed a Community Day School Referral Form to

Bob Murphy. The referral form was provided by the San Bernardino County Superintendent of schools. The form’s Section III, entitled “Educational History,” included a place where the referring district was to indicate if the pupil was a special education student; if so, the student’s IEP needed to be attached. On the form, Ms. Brantley’s clerk indicated that Student was not entitled to special education services. Ms. Brantley testified that her clerk most likely did not identify Student for special education because the attendance review board form, completed by Kolb as the cover sheet to the review board packet, failed to identify Student as a special education student. The eight-page fax was confirmed as received by Bob Murphy. District disenrolled Student effective April 19, 2012.

26.

In general, whenever District disenrolled and referred a special education student to a community school, for any reason, District’s special education administrator would first review and sign off on the referral. In April 2012, Mr. Gonzalez was District’s special education administrator. When he received a county referral form for a special education student, he reviewed the special education services to which the student was entitled and arranged for proper funding of the services at the county community day school. Once he affirmed that services would be funded, he signed the county referral form and returned the materials to Ms. Brantley’s offices, which would then be authorized to formally refer the student. Since District did not properly identify Student as a special education student, Ms. Brantley had no opportunity to affirm that Student’s special education services would be funded at Bob Murphy upon referral. 27.

Mr. Gonzalez worked for District from 2011 to 2013 and, at the time of hearing, was the Director of Student Services, Special Education Division, at Coachella Valley Unified School District. He held credentials as a mild/moderate special education specialist and in educational administrative services. He also held an autism

Accessibility modified document authorization certificate. He explained that if District had transferred Student for any of the reasons listed on the county referral form, other than a attendance review board referral, Student would have had a manifestation determination meeting. His understanding was that District did not hold a manifestation determination when the attendance review board referred a special education student to a community day school because District did not consider attendance review proceedings to be disciplinary. He further opined that he has since concluded that a special education student is entitled to a manifestation determination before a change of placement resulting from violation of school attendance policies. If District had held a manifestation meeting, Student would not have been referred to Bob Murphy without special education services, even if his absenteeism was found not to be a manifestation of his disability.

28.

George L. Bowser had been a principal for the San Bernardino County

Superintendent of Schools since 1990 and, at all times relevant to this due process, was the principal of Bob Murphy. According to Mr. Bowser, and Bob Murphy’s office manager, Eric Johnson, Bob Murphy had no record of an April 2012 referral for Student. If the referral had come into the school’s offices, Bob Murphy personnel would have contacted the Guardian to begin the registration process. Also, if the referral had indicated Student was in special education, the office would have confirmed receipt of Student’s IEP from District before proceeding with the registration. 29.

At the beginning of each school year, District’s Child Welfare and

Attendance office completed and forwarded new referral forms for each of its students who had been previously referred to, and who would be continuing at, a community day school. Therefore, District completed a new referral form for Student in August 2012. Unlike the April 2012 referral, this form clearly indicated that Student was entitled to special education services. Ms. Brantley did not know why her clerk corrected the August

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2012 referral form to properly represent Student’s special education status. The referral was then sent to Mr. Gonzalez, who authorized funding for Student’s special education services and signed the referral form. District faxed Student’s referral to Bob Murphy on August 10, 2010, but did not include any special education documents. 30.

Bob Murphy received the referral and enrolled Student on August 10,

2012. Mr. Bowser met with Guardian. Since the referral did not include an IEP, Bob Murphy’s offices contacted District for special education documentation, which District provided.

LEGAL CONCLUSIONS

INTRODUCTION – LEGAL FRAMEWORK FOR VIOLATION OF STUDENT’S CODE OF

CONDUCT UNDER THE IDEA 10

1.

This hearing was held under the Individuals with Disabilities Education Act (IDEA), its regulations, and California statutes and regulations intended to implement it. (§ 1400 et. seq.; 34 C.F.R. § 300.1 (2006) 11 et seq.; Ed. Code, § 56000, et seq.; Cal. Code. Regs., tit. 5, § 3000 et seq.) Under the IDEA and California law, children with disabilities have the right to a free appropriate public education. (§ 1400(d); Ed. Code, § 56000.) A free appropriate public education is defined as appropriate special education, and related services, that are available to the child at no cost to the parent or guardian, that meet the state educational standards, and that conform to the child’s IEP. (§ 1401(9); Ed. Code, §§ 56031 & 56040; Cal. Code Regs., tit. 5 § 3001, subd. (o).) A child’s unique

Unless otherwise indicated, the legal citations in the introduction are incorporated by reference into the analysis of each issue decided below.

All references to the Code of Federal Regulations are to the 2006 version.

Accessibility modified document educational needs are to be broadly construed to include the child’s academic, social, health, emotional, communicative, physical and vocational needs. (Seattle Sch. Dist. No.

1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500, citing H.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106.)

2.

Section 1415(k) and title 34 Code of Federal Regulations, part 300.530, et seq., describes the procedural rights of special education students when a violation of a code of student conduct results in a change of educational placement. s (Ed. Code, § 48915.5.) For disciplinary changes in placement greater than 10 consecutive school days (or a pattern of disciplinary action that amounts to a change of placement), the disciplinary measures applicable to students without disabilities may be applied to a special education student if the conduct resulting in discipline is determined not to have been a manifestation of the special education student’s disability. (§ 1415(k)(C); 34 C.F.R. §§ 300.530(c) & 300.536(a)(1) & (2).)

3.

A parent of a special education student may request an expedited hearing to challenge whether a manifestation determination meeting was properly conducted prior to changing a student’s placement. (§ 1415(k)(H)(3)(A); 34 C.F.R. 300.532(a) & (c).) The hearing must be conducted within 20 school days of the date an expedited due process hearing request is filed and a decision must be rendered within 10 school days after the hearing ends. (§ 1415(k)(H)(4)(B); 34 C.F.R. 300.532(c)(2).) 4.

A decision made by a hearing officer shall be made on substantive grounds based upon a determination of whether a child received a FAPE. (§ 1415(f)(3)(E)(i).) In matters alleging procedural violations, a denial of FAPE may be found only if the procedural violations impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. (§ 1415(f)(3)(E)(ii); 34 C.F.R. §§ 300.513(a)(2) & 300.532(c) [rules for expedited hearings are to be consistent

Accessibility modified document with those of other IDEA hearings, including analysis of procedural defect issues]; Ed. Code, § 56505, subd. (f)(2).)

5.

At the hearing, the party filing the complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387]; see § 1415(i)(2)(C)(iii) [standard of review for IDEA administrative hearing decision is preponderance of the evidence].)

ISSUE 1: WAS A MANIFESTATION DETERMINATION MEETING REQUIRED?

6.

In Issue 1, Student contends that District was required to convene a manifestation determination meeting when the review board chose to change Student’s placement because of excessive absenteeism, a violation of a student code of conduct. District asserts that the attendance review board process is designed to keep students in school, not expel or suspend them, and is therefore not a disciplinary process that mandates a manifestation determination meeting. For the reasons set forth below, District was obligated to conduct a manifestation determination, as proscribed by section 1415(k)(1)(E), because Student was a special education student, and District changed his placement based on a violation of a student code of conduct. 7.

A special education student’s placement is that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to him. (Cal. Code Regs., tit. 5, § 3042(a).) A “change of placement” is a fundamental change in, or elimination of, a basic element of a pupil’s educational program. A change of placement is defined as (a) a removal for more than 10 consecutive school days, or (b) a series of removals that cumulate to more than 10 consecutive school days and constitute a pattern based on listed factors. (34 C.F.R. § 300.536(a).) 8.

When a district seeks to change a special education student’s educational placement for more than 10 days as a result of a violation of a student code of conduct, the district must convene a meeting with relevant members of the child’s IEP team to

Accessibility modified document determine whether the child’s violation was a manifestation of the child’s disability. (§ 1415(k); 34 C.F.R. § 300.530 .) This is known as a manifestation determination. (§ 1415(k)(1)(E).) A manifestation determination must be accomplished within 10 school days of the decision to change the student’s placement. (Ibid.) If it is determined that the student’s conduct was a manifestation of the student’s disability, the district must proceed differently than that of a non-disabled student, involving the student’s IEP team and addressing any failures in IEP implementation. (§ 1415(k)(1)(F); 34 C.F.R. § 300.530(e)(3).)

9.

The manifestation determination is not an IEP team meeting and different rules apply to notice and attendance requirements. A manifestation determination must be made by the school district, the parent, and relevant members of the IEP team as determined by the parent and the school district. (§ 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1) & (h).) A school district must notify parents of a manifestation determination review team meeting early enough to ensure that they will have an opportunity to attend, and must schedule the meeting at a mutually agreed upon time and place. (34 C.F.R. § 300.322(a)(1), (2); Ed. Code, § 56341.5, subds. (a)-(c).) In the case of a manifestation determination review team meeting, the notice must inform the parent of the decision to change the student’s placement and must be accompanied by a copy of the parent’s procedural safeguards. (§ 1415(k)(1)(H).)

10.

Conduct is a manifestation of the student’s disability: (i) If the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or (ii) If the conduct in question was the direct result of the local education agency's failure to implement the student’s IEP. (34 C.F.R. § 300.530(e)(1) & (2).) The student’s behavior as demonstrated across settings and across times is analyzed in the manifestation determination. All relevant information in the student’s file, including the IEP, any observations of teachers, and any relevant information from the parents must

Accessibility modified document be reviewed to determine if the conduct was caused by, or had a direct and substantial relationship to the student’s disability, or was the direct result of the district’s failure to implement the student’s IEP. (§ 1415(k)(E); 34 C.F.R. § 300.530(e)(1).) 11.

If it is determined that the student’s conduct was a manifestation of the student’s disability, the IEP team reviews and modifies the student’s IEP to address the behavior and returns the student to the special educational placement from which the student was removed, unless the parent and the local education agency agree to a change of placement. (§ 1415(k)(1)(F).) If it is determined that the student’s conduct was a manifestation of student’s disability because the conduct was the direct result of the school district’s failure to implement student’s IEP, the district must remedy the failure. (34 C.F.R. § 300.530(e)(3).)

12.

If it is determined that the student’s conduct was not a manifestation of the student’s disability, then regular school disciplinary procedures may be used to address the incident in the same way the procedures would be applied to non-disabled students. (§ 1415(k)(1)(C); 34 C.F.R. § 300.530(c).) However, irrespective of whether the behavior is determined to be a manifestation of the student’s disability, a student who is removed from his current placement shall continue to receive special education services, enabling the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the student’s IEP goals. (§ 1415(k)(1)(D); 34 C.F.R. § 300.530(d).)

13.

District asserts that the manifestation determination process applies only to disciplinary proceedings. For example, section 1415(k)(1)(C) states that if it is determined the violation of the school code is not a manifestation of the student’s disability, “the relevant disciplinary procedures” may then be applied (emphasis added). Similarly, 34 Code of Federal Regulations part 300.530(c) refers to “disciplinary changes in placement that would exceed 10 days” as a condition to a manifestation

Accessibility modified document determination meeting (emphasis added). Thus, according to District, because the attendance review board process is designed to keep a child in school, not to suspend or expel the student, a manifestation determination meeting need not be held. However, though not characterized as a disciplinary proceeding, an attendance review board is empowered to impose serious consequences in the case of habitual or chronic truants. 14.

According to Education Code section 48200, pupils of ages six through 18 years old are subject to compulsory full-time education, unless otherwise exempted. In 1976, the California State Legislature enacted the student attendance review board legislation (Ed. Code, §§ 48320–48325) to establish panels that would develop effective ways to address absenteeism and reduce student dropout rates. When a minor becomes a habitual truant (Ed. Code, § 48262), a district may refer the student to an attendance review board.

15.

If interventions are unsuccessful in gaining a student’s attendance, the attendance review board can have a criminal complaint filed against the parent or guardian (Ed. Code, § 48291) that may include financial penalties (Ed. Code, § 48293). The attendance review board may notify the district attorney or probation officer, who will contact parent and pupil to discuss the potential legal consequences of the continued truancy (Ed. Code, § 48263.5), including arrest of the truant (Ed. Code, § 48264) and other penalties against truant if deemed a ward of the court (Ed. Code, § 48264.5). If a pupil continually and willfully violates attendance review board directives, the school district may request a citation be issued to the pupil, thus involving the juvenile court (Welf. & Inst. Code, § 601(b); Ed. Code, § 48265). The attendance review board is also empowered to utilize involuntary transfer and referral to a community day school (Ed. Code, §§ 48662(a) and (b)(3)).

16.

When community resources fail to reduce absenteeism at a student’s school (Ed. Code, § 48260.5) and the truancy continues, the attendance review board will

Accessibility modified document take more consequential steps. Here, as Student’s truancy persisted, District gave Guardian regular warnings, scheduled an attendance review team meeting, and finally referred Student and Guardian to District’s attendance review board, which scheduled a hearing. At the hearing, Guardian was informed that if Student’s truancy continued, District would refer him to Bob Murphy. When Student thereafter failed to attend his school, the review board chairperson notified Guardian that District disenrolled Student from his middle school placement at Kolb, effective April 19, 2012, and referred him to the county community day school, Bob Murphy. District’s notification also stated that the new “placement” was until January 2013. As Ms. Brantley noted, District also referred expelled students to Bob Murphy. Therefore, though the legislature may not have designed the attendance review board process as a disciplinary proceeding, the review board possessed powers to impose or initiate consequences for habitual or chronic truancy that are punitive in nature.

17.

Holding a manifestation determination meeting, when an attendance review board considers a change of placement of a child with a disability, is consistent with the public policy purpose of the IDEA and the responsibilities assumed by districts when addressing the special education needs of students. The Superintendent of Public Instruction is required to establish, coordinate, and administer a state school attendance review board for the purpose of making annual recommendations, including uniform guidelines to achieve the attendance review board legislation’s goals. (Ed. Code. § 48325, subd. (c).) Accordingly, in furtherance of its guideline mandate, the State school attendance review board prepared a model handbook for California attendance review boards, entitled “A Road Map for Improved School Attendance and Behavior,” which

Accessibility modified document includes suggested policies, processes, and forms. 12 In Chapter 8, Frequently Asked Questions, the handbook states:

The IDEA requires schools to address the behaviors of special needs pupils, such as attendance issues, when such behavior impedes the pupil’s learning. Title 34, Code of Federal Regulations (CFR) Section 300.324 requires the IEP team to consider the use of behavioral interventions and supports and other strategies to address the behavior. The [review board] process provides a means by which the school may ensure that all appropriate interventions have been considered. Interventions proposed may be included in the pupil’s IEP.

...

Under the IDEA . . . , a change of placement recommended by a [review board] cannot be implemented until an IEP . . .

team conducts a manifestation determination review to determine if the child’s conduct is a manifestation of the child’s disability, and approves the placement.

Title 34, Code of Federal Regulations (CFR) Section 300.530(e) requires an IEP team to convene within 10 school days of any decision to change a pupil’s placement to

The San Bernardino County Superintendent of Schools publishes the State

School Attendance Review Board handbook.

Accessibility modified document determine whether the behavior that prompted the decision was caused by, or had a direct and substantial relationship to, the child’s disability or directly resulted from the school’s failure to implement the IEP.

18.

The Handbook is a recommendation of good practices consistent with the

School Attendance Review Board legislative goals, and is not binding. However, the State school attendance review board’s comments regarding the need for a manifestation determination, when a review board is recommending change of placement for a child with a disability, are insightful and persuasive. In such circumstances, the manifestation determination is also consistent with one of the main purposes of having attendance review boards; that is, to ensure that all appropriate interventions are utilized. The manifestation meeting determines if the IEP team needs to be part of the attendance review board’s intervention efforts. 19.

Student’s change of placement was a consequence of his habitual truancy, a violation of the code of student conduct to regularly attend school. A change in placement resulting from a violation of a code of student conduct that exceeds 10 days requires a manifestation determination. (§ 1415(k); 34 C.F.R. § 300.530 .) Here, the change in placement was for eight months. Therefore, Student’s change of placement falls within the parameters of section 1415(k), entitling him to a manifestation determination.

20.

Though this expedited appeal is not addressing the provision of FAPE, the rules for a due process hearing under section 1415(k) are to be consistent with those of other IDEA hearings, including analysis of procedural defect issues. (34 C.F.R. § 300.532(c).) District’s failure to convene a manifestation determination meeting impeded Guardian’s opportunity to participate in a manifestation determination meeting. This is similar to significantly impeding a parent’s opportunity to participate in the decision23

Accessibility modified document making process at an IEP team meeting regarding the provision of a FAPE to the parent’s child, which is a procedural violation that may support a finding that the child was denied a FAPE. (§ 1415(f)(3)(E)(ii); 34 C.F.R. §§ 300.513(a)(2)(ii).) Accordingly, Student has also met his burden of proving that the failure to conduct a manifestation determination deprived Guardian of her right to participate in the decision-making process.

ISSUE 2: WAS STUDENT’S CONDUCT A MANIFESTATION OF HIS DISABILTY?

21.

In Issue Two, Student contends that if District had convened the required manifestation determination meeting, the relevant members of the IEP team would have found his absenteeism to be a manifestation of his disability. District asserts that Student did not meet his burden of demonstrating his truancy was a manifestation of his disability because Student had failed to submit persuasive admissible evidence in support of the assertion. For the reasons set forth above, Student did not demonstrate that Student’s conduct was a manifestation of Student’s disability. 22.

As to whether Student’s conduct would have been found to be a manifestation of his disability had a manifestation determination meeting been held, Guardian testified that Student was afraid and anxious about attending Kolb, that Student would resist getting in the car to go to school and not get out of the car when at school, that her ability to transport Student to school was compromised by the family’s homelessness, and that Student would not arrive at school when he took the bus. Student otherwise did not present admissible or persuasive evidence that his truancy was a manifestation of his disability.

23.

All relevant information in a student’s file, including the IEP, observations of teachers, as well as relevant information from the parents, must be reviewed to determine if the conduct was caused by, or had a direct and substantial relationship to the student’s disability, or was the direct result of the district’s failure to implement the

Accessibility modified document student’s IEP. (§ 1415(k)(E); 34 C.F.R. § 300.530(e)(1).) Here, no teacher or administrator testified about Student’s conduct at Kolb. The school psychologist had one conversation with Student, could not conduct planned assessments because of Student’s habitual truancy, and had no knowledge regarding Student’s special education services or placement. As the McKinney-Vento District liaison, Ms. Brantley provided school supplies, backpacks, shoes, clothing, and bus passes to Guardian for Student. As the attendance review board chairperson, she processed Kolb’s attendance review board referral and the review board’s referral to Bob Murphy. Yet, Ms. Brantley had little contact with Student and could not provide any information at hearing regarding his disability or conduct.

24.

Student was 16 years old at the time of hearing and did not testify.

Though Guardian stated that Student had received some psychological services in the past, Student did not present any corroborating evidence that he required such services at the time of the truancy, such as testimony or evaluation from a mental health professional. Student did not submit any portion of his educational file which would have been available at a manifestation determination team meeting. Even though three witnesses indicated that the last signed IEP was from Claremont USD for the 2008-2009 school year, Student did not offer the IEP as evidence.

25.

Since there was no admissible or persuasive evidence regarding the nature and extent of Student’s disability at the time of the attendance review board hearing, one cannot find that such disability had a substantial or direct relationship to Student’s truancy. Additionally, Student did not show that his truancy was the direct result of District’s failure to implement his IEP because no persuasive evidence was presented that indicated what IEP services District should have implemented. Student failed to prove by a preponderance of the evidence that if the manifestation determination

Accessibility modified document meeting had been held, his conduct would have been determined to be a manifestation of his disability.

26.

In sum, District was obligated to conduct a manifestation determination meeting, as required by section 1415(k)(1)(E), because District’s attendance review board changed Student’s placement based on violations of the code of student conduct regarding regular attendance. However, although Student met his burden of showing that Guardian was deprived of her right to participate in the decision making process, Student did not meet his burden of showing that had the meeting been held, his conduct would have been determined to be a manifestation of his disability. The remedy for denying Guardian her right to participate will be discussed separately below.

REMEDIES

1.

Student acknowledges that more than two years have passed since the attendance review board hearing and that the contemplated statutory remedy is no longer viable. Therefore, Student requests that he be awarded substantial compensatory education as a remedy for District’s failure to conduct a manifestation determination. Student cites no authority in this regard, other than to refer to the equitable powers IDEA grants the administrative law judge in fashioning remedies in due process proceedings.

2.

In general, following an expedited hearing the administrative law judge shall make a determination of the issues on appeal and, as a remedy, may order a change of placement of the child, by returning the child to the placement to which the child was removed or by changing placement of the child to an appropriate interim alternative educational setting for not more than 45 days if the current placement is substantially likely to result to injury to the child or others. (§1415(k)(3)(B)(ii).) However, school districts may be ordered to provide additional services to a student who has been denied a FAPE. (Student W. v. Puyallup School Dist. (9th Cir. 1994) 31 F.3d 1489,

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1496.) These are equitable remedies that courts may employ to craft “appropriate relief” for a party. The conduct of both parties must be reviewed and considered to determine whether equitable relief is appropriate. (Id. at p. 1496.) The award must be fact-specific and be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Reid ex rel. Reid v. District of Columbia (D.D.C. Cir. 2005) 401 F.3d 516, 524. ) 3.

Since Student’s truancy was not shown to be a manifestation of his disability, District was permitted to apply the relevant procedures to Student in the same manner and for the same duration as such procedures would apply to children without disabilities. However, irrespective of whether the behavior is determined to be a manifestation of the student’s disability, a student who is removed from his current placement shall continue to receive special education services, enabling the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the student’s IEP goals. Also, a student with a disability shall receive an appropriate functional behavioral assessment, with behavioral intervention services and modifications. (§ 1415(k)(1)(D); 34 C.F.R. § 300.530(d).) Thus, although the absenteeism was not a manifestation of Student’s disability, Student may still assert that he was not provided a FAPE at Bob Murphy after August 2012. Student shall have an opportunity to address whether District provided a FAPE in the least restrictive environment in the non-expedited portion of this due process proceeding. All issues regarding whether Student was provided a FAPE after the date of the student attendance review board decision to change his placement are reserved for the nonexpedited portion of this due process proceeding. 4.

The IDEA does not require compensatory education services to be awarded directly to a student, such that staff training is an appropriate remedy. (Park v.

Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1034 [student, who was

Accessibility modified document denied a FAPE due to failure to properly implement his IEP, could most benefit by having his teacher appropriately trained to do so].) Appropriate relief in light of the purposes of the IDEA may include an award that school staff be trained concerning areas in which violations were found, to benefit the specific pupil involved, or to remedy procedural violations that may benefit other pupils. (Ibid. Also, e.g., Student v. Reed

Union School Dist., (Cal. SEA 2008) 52 IDELR 240 [109 LRP 22923; Cal.Ofc.Admin.Hrngs. Case No. 2008080580] [requiring training on predetermination and parental participation in IEP’s]; Student v. San Diego Unified School Dist. (Cal. SEA 2005) 42 IDELR 249 [105 LRP 5069] [requiring training regarding pupil’s medical condition and unique needs].)

5.

Here, though Student was entitled to special education placement and services, District personnel did not convene a manifestation determination meeting when the attendance review board decided to change Student’s placement as a result of chronic truancy, thus denying Student and Guardian the procedural protections provided by sections 1415(k)(1) and (2). Student’s attendance history would indicate that he may again be subject to an attendance review board proceeding and a change of placement consideration, which would require a manifestation determination meeting. Further, since the District’s conduct was a matter of policy and not merely a failure to follow procedures, other special education students are likely to be deprived of a manifestation determination meeting upon a change of placement by District’s attendance review board.

6.

Therefore, in order to assure that Student and other special education students are afforded the procedural protections to which they are entitled, District shall train District personnelwho are involved with the attendance review board proceedings, regarding the procedural safeguards provided by section 1415(k) for purposes of assuring that District convene a manifestation determination meeting whenever

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District’s student attendance review board seeks to change a special education student’s educational placement for more than 10 days as a result of absenteeism or truancy.

ORDER

1.

All issues regarding whether Student was denied a FAPE, after the date of the attendance review board decision to change his placement, are reserved for the non-expedited portion of this due process proceeding.

2.

Within 90 days, District shall train its personnel, who are or may be involved with the attendance review board proceedings, as to the procedural safeguards provided by section 1415(k) to assure that District timely convenes a manifestation determination meeting whenever District’s student attendance review board seeks to change a special education student’s educational placement for more than 10 days as a result of absenteeism or truancy.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that this Decision indicate the extent to which each party prevailed on each issue heard and decided in this due process matter. Student prevailed on Issue One; District prevailed on Issue Two.

RIGHT TO APPEAL THIS DECISION

This was a final administrative Decision, and all parties are bound by it. Pursuant to Education Code section 56506, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within ninety (90) days of receipt.

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DATED: August 13, 2014

/s/ _

CLIFFORD H. WOOSLEY

Administrative Law Judge Office of Administrative Hearing

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