For anyone interested in reading about a school district’s fiscal irresponsibility and complete disregard for a student’s best welfare, this story is for you.
Matthew Storey, a San Diego special education attorney, detailed one family’s disturbing interactions with the San Dieguito Union High School District over the placement of their child in a suitable non-public school (NPS).
The student, who at a young age was diagnosed with learning disabilities and speech and language difficulties, had been attending Excelsior Academy in La Mesa, a non-public school that closed shortly after the student aged into the San Dieguito school district as a seventh-grader.
A different NPS, therefore, was needed.
After minimal evaluation of the student, SDUHSD had only one recommendation: the San Diego Center for Children.
The student’s Individualized Education Plan (IEP) team objected, according to parent Kelly Ogawa, saying SDCC was better suited for kids who suffer from more severe conditions that require serious behavioral and emotional .
She said physical restraints are even used after loud outbursts or violent episodes.
According to SDCC’s website, “The Center provides behavioral health programs for children struggling with mental, emotional, and/or behavioral disorders.”
After visiting SDCC, Ogawa said her child was “freaked out.”
“We were looking for a school with students who didn’t have behavioral issues,” she said.
Storey and Ogawa both said SDCC is a good school for certain children but was not appropriate in this case.
“Every single human being that had ever worked with [the student] said that SDCC was grossly inappropriate,” Storey said.
The student’s IEP team consisted of five individuals from Excelsior, a parent advocate, the student’s parents and Nathan Molina, SDUHSD’s case manager for this student, who was the lone member to recommend SDCC. Molina is now vice principal at Carmel Valley Middle School.
Despite the team’s objections, Ogawa said SDUHSD wouldn’t back down – no discussion, no other options.
“The district’s case manager basically told them, ‘Your options are, you can sue us,’” Storey said.
The student’s IEP team suggested the family look at The Winston School, an NPS in Del Mar, which they did.
The student attended a trial week at Winston, and the student, the family and Winston staff all agreed it was a good fit, and the student was enrolled there. But the district still refused to offer Winston.
The family then ed Storey who said he reached out to the district to see if the issue could be easily resolved, and asked them to sign off on Winston and just settle the matter.
“Let’s just do the right thing and let’s not get lawyers involved. Let’s just be done with it,” he said.
But SDUHSD said no, we’re going fight you, Storey said, “which is stunning.”
Everyone agreed the district was already obligated to paid for a non-public school for this student, yet the fact that tuition at Winston was cheaper than at SDCC and that the student was doing well there seemed not to matter.
Furthermore, because the family lives near Winston, the district would not have to pay transportation costs, which would have been required to send the student to SDCC.
To compare, the cost to send a student to San Diego Center for Children, according to program manager Katie Wilson, is $47,700 ($265 per day for a 180-day school year). There is no enrollment fee and all extra special services are included, she said.
At Winston, Ogawa said for the 2023-2024 school year the family paid $42,955 – $32,750 for tuition, a $995 registration fee, and $9,210 for special services.
“This is truthfully the most absurd case I’ve ever been involved in, in all my years of litigating,” Storey said.
Ogawa said they tried everything to avoid litigation. “But everywhere we turned it’s just been pushback. That’s what started us down this path.”
To the courts
The family was forced to take San Dieguito to court at California’s Office of istrative Hearings (OAH) to ask for placement of their child at Winston.
Now Storey’s hours started to add up – whereas before, when he called the district at the start to settle, he was not charging.
In addition, the district’s lawyer on the case, Sarah Sutherland of Orbach, Huff & Henderson, was incurring hourly expenses as well (i.e., public money).
According to court records, the basic question was: “Did San Dieguito Union High School District deny Student a free appropriate public education, or a FAPE, during the 2021–2022 school year by predetermining placement at San Diego Center for Children non-public school?”
Predetermination in this instance means a school was selected without considering the IEP team’s input. In other words, they are supposed to reach a group decision.
SDUHSD, a grades 7-12 school district in north coastal San Diego County, was represented in court by Sutherland and SDUHSD Director of School and Student Services Tiffany Hazlewood.
The family contended that SDCC was predetermined, with a “take it or leave it” offer.
The district claimed that “it alone, not parents or other IEP team , legally had the sole right to select the providers of instruction and services” and “decided SDCC was an appropriate placement for Student.”
Background from the case states that the student was found eligible for special education services when three years old, due to learning disabilities and anxiety, which increased “when exposed to aggressive or uncooperative behaviors or loud, hostile speech or profanity,” and that would interfere with the student’s ability to focus and learn.
According to court records, “Molina had never worked with Student, and did not know [Student] personally. He observed Student once for 10 to 15 minutes at Excelsior Academy. He was the only person on Student’s IEP team who was not personally familiar with Student.”
Court documents indicate that all of the IEP team, except Molina, stated at the January 24, 2022 IEP meeting that SDCC was not an appropriate placement and that “placement at SDCC would be bad for Student due to the behaviors of the other children enrolled there.”
Further, court documents state that Molina did not retreat from his decision “to offer Student placement at SDCC, even though it was undisputed Student’s anxiety was triggered when exposed to noncompliant conduct of others, which was likely to occur at SDCC.”
The court found that Molina’s “inconsistent testimony was uned, and neither credible, nor persuasive” and that he “disregarded the opinions of all the other IEP team .”
Hazlewood’s testimony was also described as “not persuasive” because “she did not appear to be very familiar with SDCC and its program.”
After receiving the due process request in Feb. 2022, the OAH reached a favorable decision for the family in August 2022.
Citing prior cases, the OAH judgment states, “For IEP team meetings, predetermination occurs when an educational agency has decided on its offer prior to the meeting and is unwilling to consider other alternatives.”
And, “A school district’s predetermination of an IEP seriously infringes on parental participation in the IEP process, which constitutes a procedural denial of a FAPE.”
Final judgment by the OAH’s istrative Law Judge (the ALJ): “San Dieguito denied student a FAPE during the 2021-2022 school year by predetermining the offer of placement at SDCC.”
“We take them to trial and we win flat-out,” Storey said, noting that parents lose 80% of cases at the OAH, making this ruling significant.
Appealing the judgment
Any reasonable person or agency would give up. But not San Dieguito.
After the family won the OAH case and the district was ordered to reimburse the family, settlement agreements went back and forth, but the district’s demands could be characterized, according to Ogawa’s notes, as unreasonable.
Finally, the family signed off on an agreement which was taken to SDUHSD’s school board in Jan. 2023 and was rejected by the board, she said – reasons unknown.
All the family wanted, she said, was authorized placement at The Winston School, “and we would waive all our rights for any future litigation while [the student] is at Winston.”
There were no other settlement discussions, according to Ogawa, after Feb. 27, 2023.
“They were silent for the longest time,” she said. “That’s why we ended up having to appeal a case that we won because we couldn’t get anything out of the district.”
The second court case, filed in Sept. 2023, was heard at the federal level at the U.S. District Court of Southern California, and this time the family requested a larger remedy that now included reimbursement of attorney fees for Storey.
In its defense, the district’s attorneys claimed the ALJ at the OAH hearing was confused and biased and failed to appear neutral during the hearing.
The court rejected this argument, noting that the district had to show that the ALJ’s actions were so extreme as to display clear inability to render fair judgment.
“The district has failed to carry its burden that the ALJ was biased,” reads the court documents.
The school district also attacked plaintiffs’ witnesses as not credible, yet the court determined that the ALJ was correct in finding that Dr. Holly Reed, special education director at Winston who testified at both court cases, “was more credible than the district’s witnesses.”
The federal court ed the ALJ’s opinion that Molina and Hazlewood were not persuasive or credible and were found to be “disingenuous and unreliable witnesses.”
In conclusion, the court agreed with the judge at the first trial that the district predetermined its offer of SDCC and “found a significant amount of fault” with the school district’s behavior.
“After thorough consideration …,” according to the record, “this court affirms the ALJ’s decision in its entirety … and concludes that plaintiff is entitled to reasonable attorneys’ fees incurred in both proceedings.”
The court order, signed April 23, 2024, also made clear that the district owes the family reimbursement for Winston fees through the end of the 2024 school year, awarded placement for the student at The Winston School and “deems plaintiff the prevailing party.”
District response
I asked all five board to comment on the case and explain why they chose to reject the Jan. 2023 settlement offer. No response.
I also ed Sutherland, Molina and Hazlewood by email and left phone messages to hear their side. No response.
I wanted to know why they were so insistent and inflexible about sending the student to San Diego Center for Children, why they chose to appeal the first decision, and for Sutherland to provide legal costs to date.
I also asked SDUHSD Superintendent Anne Staffieri, who began her work with the district in July 2023, why the district didn’t settle to begin with, why the board did not accept the Jan. 2023 settlement offer, if she will advise the board to appeal again, and how much time and money the district has spent litigating this case to date.
After several days, I received this statement from Staffieri’s office, which answered none of my questions: “The district, including its individual trustees, are not at liberty to disclose information regarding students, or information that is otherwise confidential, and privileged by law.
“The district is considering its options following the decision about which you are inquiring in due course and in accordance with these legal requirements.
“We can assure you, the district and its Board of Trustees have acted in accordance with the law in receiving information from istration and staff, and deciding how to respond to litigation filed against it by parents and any other parties, and will continue to do so.”
Given past actions, Storey worries that the district will again appeal and take this to the Ninth Circuit. The district’s statement certainly indicates no regrets or remorse.
“In for a penny, in for a pound,” as it’s said.
The district has until May 23, 30 days after the April 23, 2024 signed court order, to file an appeal.
Because no one offered any explanation for how this case proceeded, if I had to guess, perhaps it’s because board hear only one side in closed session. Still, that’s a lame excuse for not doing due diligence.
“The blame for this litigation falls 100% squarely at the feet of this school board,” said Storey. “The role as a member of a board is supposed to be fiscal oversight.”
But with no repercussions for poor financial decisions, “they can do whatever they want,” he said.
The district is required to pay the tuition and associated fees for the student’s NPS, “but now they have to pay their lawyer and they’re going to have to pay me,” Storey said, estimating the cost to be in the hundreds of thousands of dollars.
“Shame on them for doing this to a family and for doing this with [the public’s] money,” he said.
“It was clearly irresponsible to spend taxpayer dollars to engage in these two lawsuits in the first place,” said Janice Holowka, SDUHSD constituent and special education student advocate. “And doing so defied common sense and the board’s fiduciary duty.”
“None of this has made sense to me because the amount of money they spent on their attorney alone could have paid for our [child] all the way through senior year,” Ogawa said. “It was all unnecessary.”
Unfortunately, there is no reimbursement for the time the parents spent away from work consulting with their attorney, in IEP meetings and at the trials. The hours invested in fighting for their child’s rights are incalculable.
Expensive path
Storey has worked on almost 1,800 cases throughout California in his 13 years as a special education attorney, and he said it’s not just San Dieguito that acts in this manner.
Ogawa said other families with special needs children pay out of pocket because it’s too difficult to work with San Dieguito, and “it’s not worth all the strife.”
Ogawa’s child is now in ninth grade at Winston and by all s is thriving there.
By going public, Ogawa said she hopes it may help other families in a similar situation.
“A lot of these families are already dealing with so many issues for their child,” she said. “You think the public schools will have the best interests for your child and will be there to help. It is so discouraging.”
“San Dieguito decided to go down a very expensive path, without any concern for the student which was maddening for all of us,” said Storey, noting how stressful this has been for the family.
“I’ve never seen anything like this,” he said. “Financially the only people that benefit are the lawyers.”
He said all could have been avoided “if they had just done the right thing initially.”
Opinion columnist and education writer Marsha Sutton can be reached at [email protected].
Marsha Sutton is a columnist and presents her opinion. If you disagree or agree with her opinion, we’d like to hear from you. Email your comment to editor@delmartimes.net.
Column: Combines reporting, storytelling and commentary to make a point. Unlike reporters, columnists are allowed to include their opinions. Columnists in the Union-Tribune Community Press are identified clearly to set them apart from news reporters.
