Student v. Morgan Hill Unified School District

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

OAH Case No. 2017011169

PARENT ON BEHALF OF STUDENT,

v.

MORGAN HILL UNIFIED SCHOOL

DISTRICT.

EXPEDITED DECISION

Student filed an expedited due process hearing request (complaint) with the Office of Administrative Hearings, State of California, on January 30, 2017, naming District.1 Administrative Law Judge Cole Dalton heard this matter in Morgan Hill, California, on March 1, 2, and 9, 2017.

Thomas Douvan, Attorney at Law, represented Student. Student’s mother attended each day of hearing. Student attended the hearing on March 2, 2017.The hearing was interpreted into Spanish for Mother.

The complaint contained expedited and non-expedited claims. 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).) This Expedited Decision resolves only the expedited claims.

Accessibility modified document

Jennifer Baldassari and Sarah Garcia, Attorneys at Law, represented District. Rose DuMond, Director of Special Education and Student Services, attended each day of hearing on behalf of District.

On March 9, 2017, the last day of hearing, the record was closed and the matter was submitted for decision.

The evidentiary portion of the hearing concluded on March 9, 2017.At the parties’ request, the ALJ allowed the parties to submit written closing argument by March 15, 2017.Upon timely receipt of written closing arguments, the record was closed.

ISSUES2

1.

Did District fail to comply with title 20 United States Code section

1415(k)(1)(E)(i)(I) by:

a. Failing to hold a procedurally appropriate manifestation determination review on May 16, 2016; or b. Failing to determine that Student’s behavior that constituted the violation of the code of student conduct resulting in the change of placement during the 2015–2016 school year was caused by, or had a direct and substantial relationship to Student’s disability?

SUMMARY OF DECISION

Student did not meet his burden of showing that District failed to hold a procedurally appropriate manifestation determination review on May 16, 2016. District

The issues have been rephrased and reorganized for clarity. The ALJ has authority to redefine a party’s issues, so long as no substantive changes are made. (J.W.

v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 442-443.)

Accessibility modified document held the meeting timely and provided notice of the meeting to Mother in a manner that allowed her to attend and participate in the meeting. District appropriately excused attendance of the general education teacher, with Mother’s consent. District provided appropriate interpretation and translation throughout the meeting in Mother’s primary language of Spanish. District conducted the meeting in a manner that provided meaningful parental participation in the process.

Student did not meet his burden of showing that Student’s behavior constituted a violation of the code of student conduct had a direct or substantial relationship to Student’s specific learning disability. Student argued that he suffered from undiagnosed depression or anxiety at the time of the conduct at issue. He argued District should have known about these disabilities, but failed to demonstrate, by a preponderance of the evidence, that he had either condition. Even if Student had produced sufficient evidence of such disabilities, he made no showing that his behaviors resulting in suspension bore a direct or substantial relationship to them.

FACTUAL FINDINGS

1.

Student, 15 years old at the time of hearing, resided with his Parents in the

District at all relevant times. Since sixth grade, he received special education services under the eligibility category of specific learning disability in mathematics due to an auditory processing disorder.

2.

Mother attended all of Student’s individualized education program team meetings. At all relevant times, Mother spoke, wrote, and read in Spanish. She understood few words in English, and could not read or write in English. Student’s primary language was English. He understood only basic Spanish words, like “hola.”

Accessibility modified document

STUDENT’S PLACEMENT DURING 2015 – 2016 SCHOOL YEAR

3.

Student’s ninth grade year at Live Oak High School, a general education campus, began on August 13, 2015 and ended June 3, 2016. Student attended three special education classes for core curriculum, which included math, English language arts, and biology. He attended general education ceramics, woodshop, and physical education. Student did not define the details of his annual educational program. Neither party offered Student’s individualized education programs into evidence. 4.

Student received counseling services through Carlos Flores of Discovery and Carlos Navarro of Community Solutions, outside agencies that provided general education counseling to District students. Neither party described when the counseling started or its frequency and duration. District made a substance abuse counseling referral to Community Solutions for Student in October 2014, after a Parent report of Student being under the influence of an intoxicant. Various school records confirmed ongoing concerns with possession and/or use of intoxicants continuing into the 2015 – 2016 school year.

5.

Student had several behavior incidents throughout his ninth grade year, which resulted in 11 days of suspension, in addition to counseling with the assistant principal, loss of privileges, in-school single class period suspensions, warnings, and a lunch detention. District categorized the behaviors, under its disciplinary code, as obscene acts, use of profanity/vulgarity; inappropriate use of electronic devices; disruption and defiance; truant/cutting; harassment/hostile environment; agitation/provoking; and possession/use/sale/furnishing of controlled substance. Ultimately, District categorized the suspensions into three groups: defiance of authority, aggressive behavior, and violation of school rules regarding intoxicating substances. 6.

When Student came to Live Oak, assistant principal Auri Yabrudy reviewed his files and met with him regarding behavior incidents. She continued to meet with him

Accessibility modified document and counsel him after each disciplinary incident. During the 2015–2016 school year, she spoke with Mother at least 10 times about the disciplinary incidents and Mother’s concerns.

7.

Ms. Yabrudy worked at Live Oak for six years. Previously, she taught

Spanish for native speakers, English as a second language, college preparatory classes and worked as an English Language Development coordinator. Ms. Yabrudy also interpreted for parents and migrant workers and served as an administrator and interpreter and translator at IEP meetings. Ms. Yabrudy held a bachelor of science in biology, a teaching credential in Spanish, and a school administration credential. Behavior Incidents Between August 13, 2015 and November 16, 2015 8.

On August 25, 2015, Student inappropriately used an electronic device in class and responded with profanity to a teacher’s warnings. As a result, the teacher sent Student to the office. District bilingual liaison Sara Martinez informed Mother about the incident, and arranged a teacher-parent conference, where she acted as interpreter. District employed Ms. Martinez as a bilingual liaison since 2008. Her duties included interpreting meetings and translating documents for parents, teachers, and administrators. She acted in this capacity at Live Oak during Student’s tenure there. Ms. Martinez spoke with Mother once a week to once every other week during the 2015 – 2016 school years, due to Student’s ongoing behavior issues. She described Mother as being very concerned about Student’s behaviors, wanting him to do better in school. 9.

On August 31, 2015, District provided a warning to Student about inappropriately using his Chrome book during class. Ms. Martinez called Mother to explain the incident. Mother was upset, understood the concern, and indicated she would talk to Student about it when he got home from school.

10.

On October 29, 2015, District suspended Student for two days for skipping

6th period, being verbally aggressive, using profanity and refusing to follow the

Accessibility modified document directions of an assistant principal. Ms. Martinez called Mother that same day to explain the incident and suspension. District sent a suspension notice addressed to Mother, in English.

Triennial Assessment of November 16, 2015 11.

During Student’s first semester of high school, Rose Huff Johnson, Psy. D., conducted a psycho educational assessment and report in preparation for the annual IEP team meeting scheduled for November 16, 2015.District school psychologist Gail Waxman, Ed. D., N.C.S.P., interpreted the assessment at hearing. Dr. Waxman worked as a District school psychologist since August 2014. She held a bachelor of arts in psychology, a master’s degree in both clinical psychology and education, and a doctor of education in both educational and counseling psychology. She held credentials in administrative and pupil personnel services, and a national certification as a school psychologist.

12.

Dr. Waxman worked in school psychology for several decades counseling students and conducting educational assessments. Her experience included assessing and working with students who had specific learning disability and serious emotional disturbance, among other disabilities. At hearing, she offered direct, specific opinions, without wavering. Because of her experience, knowledge, training, and demeanor, her opinions and conclusions carried much weight.

13.

Dr. Waxman reviewed Dr. Johnson’s triennial assessment and determined that, with some exceptions noted below, it appropriately identified Student’s areas of need at the time of its development. Student’s test-taking behavior demonstrated limited attention span and the need for long processing time for verbal and auditory information.

14.

Student’s nonverbal cognitive ability, and expressive and receptive vocabulary fell within the low average range. Student tested in the average range for

Accessibility modified document visual-motor integration and fine motor skills. Student was a strong visual learner. However, Student tested in the low to delayed range in auditory memory, comprehension, and reasoning, which confirmed the previously-assessed auditory processing disorder.

15.

Student showed a low self-appraisal value in behavioral choices, academic ability, physical traits, coping skills, peer relations, and general life satisfaction. However, Student’s test scores may have been impacted by the use of intoxicants. Student appeared to Dr. Johnson to have been under the influence of an intoxicant during two of the three testing sessions due to extremely bloodshot eyes and impaired comprehension and reasoning ability. Dr. Johnson described Student’s history of violating school rules since elementary school, which included non-compliance with adult directives, possession of illegal substances, creating a hostile peer environment at school, truancy, and using electronic devices during instructional time. 16.

Dr. Johnson determined that Student continued to be eligible for special education under the category of specific learning disability, with a severe discrepancy between ability and achievement in math calculation due to an auditory processing disorder. As part of the assessment of specific learning disability, Dr. Johnson had to determine that Student’s learning problem was not primarily the result of emotional disturbance, among other factors.

17.

Dr. Johnson recommended teaching Student through a multi-modal approach with heavy use of visual aids and cues and physical demonstration on how to complete a project or assignment. She recommended use of audio books, highlighting information, providing notes on lectures when available, checking for understanding, allowing extra time for completion of assignments, and opportunities to take tests in an alternate setting.

Accessibility modified document

18.

In the area of behavior, Dr. Johnson recommended goals or a behavior plan to address compliance with adult directives (put away cell phone, remain quiet) and completion and turning in of class work and homework. Dr. Johnson also recommended that District “[o]ffer the opportunity for ongoing counseling to address symptoms of depression, anger management, trauma, and substance abuse.

19.

Dr. Waxman disagreed with the findings regarding symptoms of depression and trauma for several reasons. First, Student had not been diagnosed with depression. Second, the report did not identify specific behaviors that supported a diagnosis of depression. Third, neither Dr. Johnson’s report nor Student’s school records contain descriptions of any trauma suffered by Student. Fourth, Dr. Johnson’s assessment tools were not designed to diagnose Student with a medical condition or disorder.

20.

Dr. Waxman described symptoms of depression as a pervasive mood of unhappiness, frequent crying, frequent sadness, or an inability to feel happiness or satisfaction. In contrast, Dr, Johnson described Student’s behaviors as non-compliance, low frustration tolerance, and low class work completion. Dr. Waxman persuasively opined that making a determination that Student suffered depression would require a medical diagnosis coupled with a behavioral history consistent with symptoms of depression. Neither existed here.

Triennial IEP of November 16, 2015 21.

The IEP team met on November 16, 2015 and developed Student’s behavior intervention plan as part of his annual IEP. Mother attended the meeting and provided consent to the placement and services offered. Mother did not report that Student showed signs of depression or anxiety. She presented no medical records reflecting a diagnosis of depression or anxiety. However, because of Student’s behavior issues, District offered related service counseling for 30 minutes per week.

Accessibility modified document

22.

The behavior plan identified the following target behaviors: being tardy to class; not having school supplies; low work completion (30 percent); non-compliance with adult directives; distracting peers in close proximity during instruction and work time; and use of profanity. The IEP team determined that the target behaviors impeded Student’s learning by impeding his reception, retention, and recall of information, and production of written work. The behavior plan described the function of student’s behaviors as avoiding class work, avoiding embarrassment stemming from low comprehension of lectures and instructions for completing assignments, and gaining peer attention to protect his self-esteem.

BEHAVIOR INCIDENTS FROM NOVEMBER 16, 2015 THROUGH MAY 16, 2016

23.

On December 8, 2015, Student lost privileges of using his Chrome book after using it to watch videos during class and refusing to turn it over to his teacher. Ms. Martinez explained the incident and consequences to Mother.

24.

On January 8, 2016, Student spent the afternoon in the office for refusing to submit his Chrome book to his teacher. Ms. Martinez spoke to Mother regarding Student’s use of the Chrome book to watch videos in class.

25.

On January 19, 2016, Student received an in-school suspension for one class period after disrupting his class using vulgar language. 26.

Each of these in-school suspensions involved being sent to the office to work on class assignments under the supervision of a credentialed staff member, for the remainder of the class.

27.

Ms. Martinez called Mother after the January 19, 2016 incident to discuss

Student’s use of inappropriate language. Ms. Martinez also talked to Student, who said, “I know, I know, I’m not supposed to do that.”

28.

On January 22, 2016, Student received a five-day suspension for punching another student in an unprovoked attack. Ms. Martinez talked to Student and Mother

Accessibility modified document about the incident and disciplinary measure. Student admitted the incident and said the victim talked about Student’s friend, so he hit the victim to protect his friend. District sent a suspension notice addressed to Mother, in English. On February 11, 2016, Student received lunch detention for cutting one of his classes.

29.

On March 2, 2016, Student received counseling for playing handball with a few friends at lunch against the exterior wall of the girls’ locker room, adjacent to the entry doors. Over the prior two weeks, several female students complained to school staff about inappropriate comments being made while Student and his friends played handball. District warned Student and the others on several occasions. On March 2, 2016,Ms. Yabrudy directed the boys to move away from the girls’ locker room. The boys were argumentative and kept playing, until the campus security officer ordered them to stop.

30.

After the incident, Ms. Martinez spoke to Mother, who said her husband would pick Student up after school. Ms. Martinez also spoke to Student about needing to listen and follow directions. Ms. Yabrudy also spoke to Mother about the incident. Mother expressed concern regarding Student’s behavior.

31.

On March 3, 2016, Student received a two-day suspension for being defiant towards campus monitors and administration. District staff caught Student and his friends playing handball against the girls’ locker room, again. Student defied directions to report to the office and encouraged his friends to do the same. Ms. Martinez spoke to Mother about the incident and resulting suspension. District sent a suspension letter addressed to Mother in English.

32.

On March 7, 2016, Mother turned knives over to District. Mother found the knives and some lighters at home in Student’s belongings. Student told his Mother he needed the knives for protection. Mother told Ms. Martinez that Student held the knives

Accessibility modified document for other students attending Live Oak. Student did not receive discipline for this, as he did not possess knives on campus.

33.

At hearing, Student vaguely related cutting himself sometime during the

2015 – 2016 school year, associated with the knives he held for friends. He denied telling anyone at District about this behavior. He could not remember whether he told his outside counselor, Mr. Flores, about the behavior.

34.

At hearing, Ms. Martinez vehemently denied that Mother told her Student used these knives to cut himself. She credibly explained that she would have remembered something that serious. Had she been told that, she would have followed District protocol in informing administration and seeking help for Student. District heard the allegation of cutting behaviors for the first time, at hearing. 35.

When turning the knives over to District, Mother expressed concern to

Ms. Martinez that Student did not perform to his full potential at school, that he had anger issues, and needed someone to talk to. After Mother turned the knives in, Student told an assistant principal that he did not want to continue getting into trouble. Based on these reports, Ms. Martinez arranged Student’s participation in a 10-week counseling program with an outside organization that services Live Oak students. Student began attending the program on March 17, 2016. His counselor was Carlos Navarro, a Marriage and Family Therapy trainee.

36.

On March 16, 2016, Student received an in-school suspension when he disrupted class by running around and refusing to return to his seat. Student engaged in this behavior several times previously, without disciplinary action being taken. Ms. Martinez did not recall talking to Mother about this incident. 37.

On March 29, 2016, District administered an in-school suspension when

Student disrupted the class by turning up his music, making off topic comments, and dancing in the back of the class to get the attention of other students. Ms. Martinez

Accessibility modified document spoke to Mother about the incident. She also spoke to Student, telling him to listen to his teacher, do his work, and be good.

38.

On May 11, 2016, Ms. Yabrudy counseled Student after the custodian reported seeing Student smoke marijuana before school. Ms. Yabrudy held a conference with Mother the day of the incident. Mother expressed concern over Student’s past drug use and being influenced negatively by friends.

39.

On May 12, 2016, Student received a two-day suspension for playing handball against the wall by the girls’ locker room door, and defying instructions by various staff to stop. Ms. Martinez spoke to Student, who told her it would not happen again. She also advised Mother about the incident and discipline. District sent a notice of discipline addressed to Mother, in English.

MANIFESTATION DETERMINATION REVIEW

Prior Written Notice 40.

District scheduled a manifestation determination review meeting for May

16, 2016 and sent prior written notice of the meeting, in English, to Parents on May 13, 2016. Ms. Martinez called Mother and related the date and time of the manifestation determination review. She did not ask whether Mother wanted to invite anyone to the manifestation determination review.

41.

The prior written notice indicated District’s proposal to initiate or change

Student’s educational placement and the provision of a free appropriate public education to him. District described the proposed change to “make possible changes to [Student’s] services to try and improve his behavior at school.” District’s notice explained Student’s recent two-day suspension for defiance, for a total of 11 days of suspension for the school year. The notice explained District would hold the meeting to determine whether Student’s behavior was related to his disability, make sure providers followed

Accessibility modified document

Student’s IEP and behavior plan, and to review Student’s counseling report. Parent wrote on and signed the prior written notice form indicating she planned to attend the manifestation determination and required the assistance of a Spanish interpreter. Manifestation Determination Assessment 42.

Dr. Waxman prepared a manifestation determination assessment, dated

May 16, 2016, to help determine the relationship between Student’s behavior and specific learning disability and whether providers implemented his IEP with fidelity. She reviewed Dr. Johnson’s triennial assessment; interviewed Student, Parents, and teachers; and reviewed Student’s IEP, behavior plan, disciplinary records, and cumulative file. 43.

Dr. Waxman interviewed Parents telephonically, with Ms. Martinez interpreting. Mother worried about Student because she worked nights. Father was supposed to supervise Student and help with his schoolwork. Instead, Student went out at night to the local park, where he met his friends. Mother did not approve of his friends. They give him materials to hold that he should not be holding. Mother expressed concern over Student’s use of intoxicants.

44.

Dr. Waxman met Student for the first time and interviewed him for 30 minutes a few days prior to the manifestation determination review meeting. Based on that conversation, she determined that Student did not prioritize school. He enjoyed meeting his friends at the park at night, did not care about school, and would rather be with his friends than do homework.

45.

In her assessment report, Dr. Waxman described Student’s behavior history as exhibiting defiance and aggression. She found no relation between the behaviors and Student’s specific learning disability. Student had a long history of noncompliance with adult directives, low frustration tolerance, fighting, use of profanity, harassment, provoking others, and use/possession/furnishing/sale of intoxicants. In her

Accessibility modified document assessment, and at hearing, she opined that Student’s peer group at school and friends outside of school contributed his conduct resulting in discipline. 46.

Dr. Waxman found nothing in her interviews with teachers, Parents, or

Student, which indicated Student had depression or anxiety. Such findings would have been relevant to her, as they could have changed the outcome of the manifestation determination, as well as Student’s eligibility.

47.

Student’s behaviors, which constituted a violation of the code of conduct resulting in a series of suspensions, included inappropriate use of electronic devices, defiance of authority, fighting with another student, playing handball with friends near the girls’ locker room, and Student’s use of intoxicants. Dr. Waxman credibly explained that these behaviors did not show that Student had depression, which would present a pervasive mood of unhappiness; frequent crying or sadness; or an inability to feel happiness or satisfaction.

48.

Dr. Waxman spoke with Student’s case manager Kory Buechter regarding implementation of Student’s IEP and behavior plan. Mr. Buechter held a bachelor of arts in history, a master of arts in education, and a special education teaching credential. He taught Student’s special education English class during the 2015 – 2016 school year. Mr. Buechter interviewed Student’s teachers and reported that they implemented Student’s IEP and behavior plan with fidelity.

49.

Dr. Waxman recommended increasing school counseling from 30 to

60 minutes per week with some of the time devoted to anger management, thinking through alternatives to controlled substances, and work refusal. She also recommended considering substance abuse counseling in the community; group counseling; amending Student’s behavior plan if necessary; and parent counseling to help develop effective parental control over Student’s behaviors.

Accessibility modified document

May 16, 2016Manifestation Determination Review Meeting 50.

Mother, Student, Ms. Yabrudy (acting as administrator and interpreter),

Dr. Waxman, Mr. Buechter, and Mr. Navarro attended the manifestation determination review meeting. Ms. Yabrudy attended as the administrator and interpreter. 51.

Ms. Yabrudy persuasively explained at hearing that she interpreted the meeting accurately. Ms. Yabrudy also translated discipline documents relating to Student’s numerous suspensions during the 2015 – 2016 school year, Student’s annual IEP of November 16, 2015, and Dr. Waxman’s manifestation determination assessment. Ms. Yabrudy explained the procedural safeguards to Mother, who signed to acknowledge receipt of the notice of procedural safeguards, which she received in Spanish.

52.

Mother signed an IEP team member excusal form, agreeing to excuse

Student’s general education teacher from the meeting. The form contained notice that a meeting member could be excused upon agreement between District and parent. No one asked Mother if she wanted to reschedule the meeting to obtain attendance of a general education teacher. Mother did not question the need for a general education teacher. She did not express reservations about proceeding without the teacher. 53.

Mother showed an understanding and familiarity with Student’s disciplinary issues during the meeting. She expressed concern about Student’s pattern of suspensions since middle school, his grades, and had questions about whether he would be expelled. Consistent with the prior written notice document, Ms. Yabrudy explained that this was not an expulsion meeting. Throughout the meeting, when asked, Mother told Ms. Yabrudy she understood what was being translated or interpreted. The team reviewed the draft “Manifestation Determination” document, which Ms. Yabrudy translated for Mother.

Accessibility modified document

54.

Dr. Waxman presented her assessment report. She recommended Parent counseling and Parent asked the team for strategies to intervene with Student at home. The team discussed Student’s drug use, grades, behaviors, and attendance. Student began failing classes and not doing class work. The team reviewed and discussed Student’s behavior plan but decided not to revise it, as it continued to be appropriate. 55.

Neither Mother nor Student mentioned a belief that Student suffered from depression or anxiety during the meeting. At hearing, Student admitted never telling anyone at District that he suffered from depression or anxiety. None of his doctors treated him for depression or anxiety. He had no diagnosis of depression or anxiety. 56.

At hearing, Student described talking to Mr. Navarro during counseling sessions about depression, sometime before the manifestation meeting. But no one corroborated this statement. Mr. Navarro did not express any concerns about Student having depression or anxiety during the manifestation determination review meeting. Nor did Mr. Navarro suggest that District consider whether Student’s behaviors related to depression or anxiety. Rather, Mr. Navarro agreed that Student’s behavior was not a manifestation of his disability.

57.

At hearing, Dr. Waxman described Student’s behaviors as exhibiting defiance and aggression and opined that these did not evidence depression or anxiety. None of the manifestation review team members described any of Student’s behavior in a manner consistent with a pervasive mood of unhappiness; frequent crying or sadness; or an inability to feel happiness or satisfaction. Ms. Yabrudy described Student’s behaviors as being “all over the place,” as opposed to showing a pattern. 58.

The team discussed and agreed that Student’s behaviors were not related to his specific learning disability. District did not change Student’s class or school placement. District team members advised Student against associating with students

Accessibility modified document known to get into trouble. District team members warned Student that he would be recommended for expulsion if he were caught on campus with drugs again. 59.

District team members believed Student needed increased counseling to address anger issues. District offered to increase related services counseling from 30 to 60 minutes per week. Mother agreed.

60.

Team members had varying recollections about what other type of counseling they recommended at the manifestation review meeting. However, Mother spoke to Mr. Flores, about group counseling and anger management, consistent with Dr. Waxman’s recommendations, after the meeting. Further, the team referred Student for group counseling after the meeting.

61.

For the remainder of the 2015–2016 school year, Student did not engage in conduct resulting in discipline. Student explained that his behavior improved when he stopped hanging out with students he used to get in trouble with.

LEGAL CONCLUSIONS

INTRODUCTION – LEGAL FRAMEWORK FOR STUDENT DISCIPLINE UNDER THE IDEA3

1.

This hearing was held under the Individuals with Disabilities Education Act (IDEA), its regulations, and California statutes and regulations intended to implement it. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006)4 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.(20 U.S.C. § 1400(d); Ed.

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

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 individualized education program (IEP).(20 U.S.C. § 1401(9); Ed. Code, §§ 56031 & 56040; Cal. Code Regs., tit. 5 § 3001, subd. (o).) A child’s unique 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.

Title 20 United States Code section 1415(k) and title 34 Code of Federal

Regulations, part 300.530, et seq., govern the discipline of special education students. (Ed. Code, § 48915.5.) A student receiving special education services may be suspended or expelled from school as provided by federal law. (20 U.S.C. §1415(a)(1)(A); Ed. Code, § 48915.5, subd. (a).) If a special education student violates a code of student conduct, school personnel may remove the special education student from his or her educational placement without providing services for a period not to exceed 10 days per school year, provided typical children are not provided services during disciplinary removal. (20 U.S.C. § 1415(k)(B); 34 C.F.R. § 300.530(b)(1) & (d)(3).)

3.

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. (20 U.S.C. § 1415(k)(C); 34 C.F.R. §§ 300.530(c) & 300.536(a)(1) &(2).) The law also provides that school personnel may remove a special education student to an interim alternative educational setting for not more than 45 school days, regardless of whether the student’s behavior was

Accessibility modified document determined to be a manifestation of the student’s disability, under certain specific circumstances. (20 U.S.C. § 1415(k)(1)(G); 34 C.F.R.§ 300.530(g).) 4.

A parent of a special education student who disagrees with any decision regarding placement in an interim alternative educational setting, or the manifestation determination, may appeal the decision by requesting an expedited due process hearing. (20 U.S.C. § 1415(k)(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. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. 300.532(c)(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 20 U.S.C. § 1415(i)(2)(C)(iii) [standard of review for IDEA administrative hearing decision is preponderance of the evidence].) Thus, Student had the burden of proof on the issues raised in the complaint.

ISSUE 1(A): PROCEDURAL APPROPRIATENESS OF MAY 16, 2016 MANIFESTATION

DETERMINATION REVIEW

6.

Student contends District failed to provide copies of documents reviewed at the meeting in Mother’s native language of Spanish, failed to properly interpret the meeting, and failed to require the attendance of one of Student’s general education teachers. In so doing, Student argues, District denied Mother parental participation in the decision-making process during the manifestation determination review. District contends that it held the manifestation review meeting in a timely manner, with all relevant team members, at a mutually agreeable time, and that all relevant documents were reviewed and translated for Mother at the meeting.

Accessibility modified document

Legal Authority 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).) A change of placement occurs where a child has been subjected to a series of removals that constitute a pattern (a) because the series of removals total more than 10 school days in a school year; (b) because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and (c) because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. (34 C.F.R. § 300.536(a)(2).)

8.

A manifestation determination must be accomplished within 10 school days of the decision to change the student’s placement. (20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1).) All relevant information in the student’s file, including the IEP, any observations of teachers, and any 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 student’s IEP. (20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1).) 9.

A 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. (20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. §

Accessibility modified document

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. (20 U.S.C. § 1415(k)(1)(H).) 10.

Local educational agencies “shall take any action necessary to ensure that the parent or guardian understands the proceedings at [an IEP team] meeting, including arranging for an interpreter for parents and guardians…whose native language is other than English.” (Ed. Code, § 56341.5, subd. (i); see also 34 C.F.R. § 300.322(e).) Analysis and Conclusions 11.

District timely held the manifestation review meeting within 10 school days of Student’s last suspension, which occurred on Thursday, May 12, 2016. At that time, Student had accrued 11 days of suspension during the 2015 –2016 school year. The series of removals constituted a pattern based upon the number of school days missed during the school year, a general pattern of defiance of school authority and rules, and the proximity of removals to one another. As such, the suspensions constituted a change of placement requiring a manifestation review. Further, having determined to hold a manifestation review meeting, District obligated itself to follow the required procedures.

12.

Ms. Martinez notified Mother, in Spanish, of the manifestation review meeting set for the following Monday, May 16, 2016. Mother agreed to and attended the meeting. District invited all relevant IEP team members to the meeting, including Student’s case manager and special education teacher Mr. Buechter; Student’s outside counselor Carlos Navarro; the school psychologist Dr. Waxman; the administrator and

Accessibility modified document interpreter Ms. Yabrudy; Student’s general education teacher Mrs. Giesey; Student; and Mother.

13.

Unlike an IEP meeting, there is no legal requirement that a general education teacher must attend a manifestation determination meeting, which requires the attendance only of relevant members of the IEP team as determined by the parent and the school district. Once Mrs. Giesey informed District she could not attend the meeting, District properly obtained an excusal. District provided an IEP team member excusal form to Mother at the meeting, which was translated into Spanish by Ms. Yabrudy. Mother agreed to and signed the excusal. Mother did not ask that the meeting be rescheduled to secure the attendance of a general education teacher. At hearing, Student provided no evidence of what Mrs. Giesey’s input would have been or that she had any information that would have changed the outcome of the meeting. Student failed to establish that a general education teacher was a necessary member of the manifestation review team.

14.

District also provided Mother with a copy of the procedural rights in her native language of Spanish. Mother attended all of Student’s IEP’s and obtained prior copies of the procedural rights in Spanish. Ms. Yabrudy summarized the procedural rights for Mother at the beginning of the meeting and asked if she had any questions. She had none. Mother initialed the review documents indicating she received a copy of the procedural rights.

15.

Ms. Yabrudy asked if Mother had questions about the purpose of the meeting. Mother questioned whether Student would be expelled. Ms. Yabrudy explained that the meeting was not to expel Student, but to review his program, the disciplinary incidents, to determine what relation Student’s behavior had to his disability, and to provide further supports in Student’s IEP, if necessary. Ms. Yabrudy translated the draft Manifestation Review document for Parent during the meeting.

Accessibility modified document

16.

At the meeting, the team reviewed all relevant documents from Student’s file, including the manifestation assessment of Dr. Waxman, Student’s grades, credits earned, attendance, disciplinary records, Student’s IEP, and behavior plan. Ms. Yabrudy went over the documents with Mother in Spanish. Further, Ms. Martinez and Ms. Yabrudy discussed disciplinary incidents with Mother, in Spanish, as they occurred throughout the course of the school year. Both providers were familiar with Student, Mother, and Mother’s concerns for her son.

17.

Prior to the meeting, Dr. Waxman obtained input from Parents as part of her manifestation assessment. Mother expressed concern about Student’s use of intoxicants, hanging out with the wrong people after school, and failure to do homework. Mr. Buechter obtained information from Student’s teachers, which confirmed the IEP and behavior plan were being implemented with fidelity. Throughout the course of the manifestation meeting, Ms. Yabrudy asked Mother if she had questions, checked for understanding, and interpreted Mother’s input to the team. 18.

At the end of the meeting, the manifestation review documents were printed out and Ms. Yabrudy translated the meeting notes for Mother. Ms. Yabrudy asked if Mother had questions. She did not. Mother agreed to the results of the manifestation review.

19.

At hearing, Mother did not recall agreeing to the manifestation results.

Mother’s recollection at hearing was spotty and vague. On the other hand, Ms. Yabrudy recalled specific details about the manifestation review meeting and her conversations with Parent. As such, her testimony weighed more heavily on these issues. Ms. Yabrudy’s experience, training, recollection and consistency, bolstered her credibility. 20.

Legal authority does not support Student’s argument that failure to provide the documents in Spanish to Mother required a reversal of the manifestation review findings. The law required District to translate relevant documents and interpret

Accessibility modified document the meeting, such that Mother understood the proceedings. The evidence showed that Mother actively participated in the decision making process as she asked questions, provided input, and expressed agreement with the decision not to change Student’s placement but to extend the time of his related service in counseling. 21.

In summary, Student did not meet his burden of proving that District committed procedural violations related to the manifestation review meeting. District properly notified Mother of the manifestation review meeting in a manner that allowed her to attend, ask questions, provide input, and obtain changes to Student’s IEP as part of the manifestation review process. Further, District provided appropriate translation and interpretation services to Mother, such that she understood the proceedings and actively participated in the meeting.

ISSUE 1(B): FINDINGS OF MAY 16, 2016 MANIFESTATION DETERMINATION REVIEW

22.

Student contends District erred when it determined that Student’s conduct resulting in disciplinary suspensions during the 2015–2016 school year, was not a manifestation of his disability. Student contends District failed to identify deficits in depression and anxiety and that his behaviors related to these deficits. District contends that Student’s behaviors were not related to his sole eligibility category of specific learning disability based on an audio logical processing disorder, resulting in deficits in math calculation. For the reasons set forth below, Student’s behaviors resulting in discipline did not have a direct and substantial relationship to his disability. Legal Authority 23.

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. (20 U.S.C. § 1415(k)(1)(E)(i)(I) & (II); 34

Accessibility modified document

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.

24.

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. (20 U.S.C.§ 1415(k)(1)(C); 34 C.F.R. § 300.530(c).)

Analysis and Conclusions 25.

Student did not meet his burden of proof on this issue. Student offered no expert opinions or reports to establish that Student suffered from depression or anxiety or that those conditions were substantially related to his behaviors that resulted in suspension. Student offered no probative evidence that he suffered from depression or anxiety at any relevant time period.

26.

Student and Mother admit that Student’s doctors and counselors never diagnosed him with depression or anxiety. Mother believed Student tried to commit suicide by cutting himself with knives. However, she did not report the incident to District or to any doctor. She never sought psychiatric help for Student as a result. The failure to follow up on Student’s alleged suicidal behavior directly contradicted the worry and involvement Mother otherwise showed over Student’s well being. 27.

Mother expressed genuine concern over Student’s difficulty in school and wanted to help him stay out of trouble. However, many portions of Mother’s testimony were given less weight due to the leading nature of questions put to her and the lack of corroboration from other witnesses and evidence.

28.

Dr. Waxman did not see symptoms of depression or anxiety in Student at the time of her manifestation assessment in May 2016.Dr. Waxman discounted the “symptoms of depression” in the triennial assessment of November 2015. Dr. Johnson’s report did not describe any behaviors consistent with a pervasive mood of unhappiness;

Accessibility modified document frequent crying or sadness; or an inability to feel happiness or satisfaction. Dr. Johnson did not use testing instruments that resulted in a diagnosis of depression. Her report did not explain what “symptoms of depression” meant and did not tie the phrase to any of Student’s behaviors. For these reasons, Dr. Johnson’s conclusion that Student had “symptoms of depression,” though considered, ultimately had no probative value in the determination of the issues at hand.

29.

Dr. Waxman credibly defined symptoms of depression based upon her experience and training as a school psychologist. She explained how Student’s conduct prompting the manifestation review (aggression, defiance of authority, and drug use) did not fit the definition of depression. Based upon her qualifications as a school psychologist, training, and experience, Dr. Waxman’s opinions were credible and persuasive. Student presented no expert testimony, or other persuasive evidence, disputing Dr. Waxman’s opinions.

30.

Parents did not describe any Student behaviors consistent with symptoms of depression (i.e. frequent sadness or crying, a pervasive mood of unhappiness, or an inability to feel happiness) to Dr. Waxman during their telephonic interview prior to the manifestation review. They did not relate behaviors consistent with anxiety. Rather, Parents expressed concern over Student going to the park to meet friends; holding items he should not, for his friends; not doing home work; and use of intoxicants. 31.

None of these concerns, in Dr. Waxman’s opinion, indicated that Student suffered from depression or anxiety. Neither Mother, nor Student, nor Mr. Navarro mentioned anything about depression or anxiety during the manifestation review meeting.

32.

Further, the manifestation determination team reviewed the relationship between Student’s behaviors at issue and his learning disability. The team established that Student knew right from wrong. His specific learning disability did not impair his

Accessibility modified document ability to understand the impact and consequences of his behavior. Nor did his disability impact his ability to understand and follow school rules. Student developed friendships inside and outside of school. He interacted appropriately with peers and teachers when he wanted to.

33.

The team analyzed Student’s behaviors across settings and times when it determined the conduct in question was not caused by or a direct result of his disability. Student’s conduct must be “direct and substantial” and not merely have, “an attenuated association, such as low-self esteem, to the child’s disability.” (71 Fed.Reg. 46720 (August 14, 2006).)An attenuated relationship can be seen, for example, where a child’s disability results in loss of self-esteem and the child consciously misbehaves to gain the attention or approval of peers.(See, Doe v. Maher (9th Cir. 1986) 793 F. 2d 1470, fn. 8.)A direct and substantial relationship exists where a student’s disability significantly impairs the child’s behavioral control.(Ibid.) Student failed to show anything more than an attenuated relationship between any of his deficits and his behaviors that resulted in suspension.

34.

Student did not meet his burden of proving that the conduct subject to discipline had a direct and substantial relationship to his specific learning disability, or any other deficits. Further, Student failed to prove that he had other disabilities or deficits that bore a direct and substantial relationship to the conduct at issue.

ORDER

All relief sought by Student is denied.

PREVAILING PARTY

Pursuant to California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. Here, District was the prevailing party on all issues presented.

Accessibility modified document

RIGHT TO APPEAL

This Decision is the final administrative determination and is binding on all parties. (Ed. Code, § 56505, subd. (h).) Any party has the right to appeal this Decision to a court of competent jurisdiction within 90 days of receiving it. (Ed. Code, § 56505, subd.(k).)

DATED: March 23, 2017

/s/

COLE DALTON

Administrative Law Judge Office of Administrative Hearings

Accessibility modified document