Adriana,
Did you not receive the attachment word doc? The original email went to you and a private investigator by the name of Don Shawver. Don Shawver conducted an investigation on DMC Regent Linda Garcia. We feel it is in the Public's Right to know the details of this investigation and the person or entity who funded it. Did the Caller Times hire Mr Shawver and if so why not the same scrutiny of all the other candidates? A DMC Public Records Requests turned out nothing significant except the fact that DMC answered it (the FOIA request) readily before the time period. I understand that there is an agreement between the In House Counsel (DMC) and the Caller as there is a recording of the in house counsel responding to what he believed to be a Caller TImes Reporter. The Reporter was questioning the in house counsel regarding the following published FOIA request:
Corpus Christi Watchdog Authority: Fwd: [Bay of Pigs] Judge Westergren has been given the opportunity to produce the ...
Tuesday, July 31, 2007
Wednesday, July 18, 2007
Teachers are leaving children behind by referring them to the courts.....yet they are rewarded for it!~ Why?
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Page 1
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
SPECIAL EDUCATION DIVISION
STATE OF CALIFORNIA
In the Matter of:
STUDENT,
Petitioner,
v.
UPPER LAKE UNION HIGH SCHOOL
DISTRICT,
Respondent.
OAH CASE NO. N2006050375
DECISION
Judith A. Kopec, Administrative Law Judge, Office of Administrative Hearings,
Special Education Division, State of California, heard this matter on September 12, 2006, in
Upper Lake, California.
Gayle Zepeda, Education Director, Robinson Rancheria Band of Pomo Indians, and
Marsha M. Lee, Indian Child Welfare Act/Human Services Coordinator, Robinson Rancheria
Band of Pomo Indians, represented Petitioner (Student). Student also attended.
Jeff Hassberg, Director of Special Education and School Psychologist, represented
Respondent Upper Lake Union High School District (District). Don Boyd, Vice Principal,
Upper Lake High School (ULHS), also attended.
Student filed the amended Complaint on July 17, 2006. The hearing was conducted
and the matter was submitted on September 12, 2006.
Page 2
ISSUES
1
Did District deny Student a free and appropriate public education (FAPE) by the
following:
1.
Failing to provide Student with information concerning the transfer of special
education rights when she turned 18 years of age?
2.
Failing to provide Student and her advocates written notice of the
individualized education program (IEP) team meetings on March 28, April 28,
and May 8, 2006?
3.
Failing to provide Student a timely assessment?
4.
Failing to implement Student’s positive behavior plan?
5.
Failing to follow the required process when disciplining Student?
CONTENTIONS OF THE PARTIES
Student contends that District was required to have Student complete a written
assignment of educational decision-making authority when she reached 18 years of age.
District contends that it was not required to have Student complete a written assignment of
educational decision-making authority.
Student contends that District failed to give her or her advocates written notice of IEP
team meetings on March 28, April 28, and May 8, 2006. District contends that Student did
not authorize District to inform her advocates of the IEP team meetings.
Student contends that District failed to provide Student a timely cognitive ability
assessment and social-emotional assessment because it offered to assess her shortly before
she graduated from high school. District contends that its plan to assess Student was
appropriate.
Student contends that District failed to implement her positive behavior plan. District
contends that it attempted to implement Student’s positive behavior plan but Student refused
the services that were offered.
Student contends that District expelled Student on January 17, 2006, without
conducting a manifestation determination. District contends that it was not required to do so
because it conducted one in October 2005 when Student was suspended for the same
conduct. Student contends that District expelled her in January 2006 without providing her
1
The issues were re-organized for purpose of this decision.
2
Page 3
an interim alternative educational placement or any educational services. District contends
that it provided educational services by mailing Student a packet of educational materials
that she was to complete during her expulsion.
Student contends that she is entitled to receive unspecified compensatory education
from the District. District contends that Student is not entitled to compensatory education
because she graduated from high school with a regular diploma.
FACTUAL FINDINGS
Background Information
1.
Student is eligible for special education services on the basis of a specific
learning disability. She attended District’s ULHS during the 2005-2006 school year and
graduated with a regular diploma at the end of the school year.
Transfer of Special Education Rights
2.
As described in Legal Conclusions paragraph 7, upon reaching 18 years of
age, all rights under special education law transfer to a student who is legally competent.
Student was 18 years old when she first attended a District school. Student understood that
once she turned 18 years old, she was responsible for signing her IEPs and other special
education documents. District neither provided Student information about how she could
assign her special education rights to someone else once she reached 18 years of age, nor was
District required to do so.
Notices of IEP Team Meetings to Student and Advocates
3.
As discussed in Legal Conclusions paragraph 8, a student who is 18 years of
age is entitled to receive notices of IEP team meetings.
4.
Student has failed to show that IEP team meetings were held on March 28 or
May 8, 2006. District was not required to send notices of meetings on March 28 and May 8,
2006, to Student or her advocates.
5.
An IEP team meeting was held on April 28, 2006. Student did not offer any
evidence about whether or not she received notice of this meeting. There is insufficient
evidence that District failed to send Student timely notice of the IEP team meeting on
April 28, 2006. District was not required to send a notice of that meeting to either Ms. Lee
or Ms. Zepeda.
3
Page 4
Timely Assessment of Student
6.
As discussed in Legal Conclusions paragraph 9, a district must assess a student
at least once every three years, or if a parent or teacher requests an assessment. At a meeting
on May 25, 2006, District offered Student an assessment plan for a comprehensive psycho-
educational assessment to be performed by School Psychologist Jeff Hassberg. It is
unknown whether Student attended this meeting. Ms. Lee attended the meeting and objected
to the assessment plan because she did not believe that Mr. Hassberg would perform an
objective assessment. The assessment plan was never signed. Student has not shown that
District failed to perform a timely triennial assessment. There is no evidence that Student, or
anyone on her behalf, requested an assessment that was not performed. Student has failed to
show that District failed to provide a timely assessment.
Student’s Discipline History
7.
Student was suspended for five days in October 2005 for smoking marijuana
on school grounds. She was expelled for smoking marijuana on school grounds in
January 2006. On February 22, 2006, District’s governing board suspended the expulsion
and placed Student on probation as long as she complied with specific conditions. Although
Student could have attended ULHS after the school board’s action, the District did not
inform Student that she could return to school until March 28, 2006. Student was removed
from her educational placement for two months after she was expelled. Student was
disciplined for the third time in May 2006 after an incident with a classroom aide. The
punishment for this incident is unclear.
2
Implementation of Student’s Behavior Plan
8.
As discussed in Legal Conclusions paragraph 11, a district is required to
develop and implement a behavior plan in connection with the imposition of discipline. On
October 28, 2005, District developed a positive behavior support plan for Student in
connection with her suspension for smoking marijuana at school. The antecedent behavior to
the inappropriate conduct identified in the behavior plan is Student’s need to alter her mood
to achieve a calmer, more relaxed state. The behavior plan was designed to provide Student
with alternative methods to achieve a calm, relaxed state of mind.
9.
The behavior plan required that Student have a minimum of three, 20-minute
sessions with the school psychologist during the 2005-2006 school year. During these
sessions, Student was to practice breathing and visualization techniques to achieve a calmer,
more relaxed state of mind, and discuss other methods to assist her, such as dream
manipulation and meditation. Once developed, the behavior plan is part of Student’s IEP.
2
Although Student testified that she was expelled for the May incident, her testimony in this area is not
persuasive because she appeared confused about the chronology of her discipline in January and May 2006.
4
Page 5
10.
Mr. Hassberg met with Student for 15 minutes on November 16, 2005. He
gave her information concerning substance abuse, and told her that they would meet again to
implement the behavior plan. On December 8, 2005 and January 10, 2006, Mr. Hassberg
attempted to conduct counseling sessions with Student. However, she refused to leave her
classroom and go to Mr. Hassberg’s offices for the sessions. Mr. Hassberg made no further
attempts to implement Student’s behavior plan because he believed that Student was resistant
to counseling and was not going to benefit from the counseling required by the behavior
plan. Student was never provided information about breathing and visualization techniques,
dream manipulation or meditation, as required by her behavior plan. District took no steps to
modify Student’s behavior plan. The District failed to implement the counseling required by
Student’s October 2005 positive behavior plan.
11.
The behavior plan also requires that if Student uses marijuana again, she will
be instructed concerning the dangers of marijuana dependency, and an emergency IEP team
meeting will be held to review her IEP and behavior plan to determine the appropriateness of
the IEP and related support services. Student offered no evidence concerning whether or not
District complied with these requirements of the behavior plan when she was disciplined
again in January 2006 for using marijuana at school. The May 2006 incident for which
Student was disciplined did not involve substance abuse; therefore, Student’s behavior plan
did not require any action by District. There is no evidence that District failed to implement
Student’s behavior plan in connection with the May 2006 incident.
Manifestation Determination for January 2006 Expulsion
12.
As discussed in Legal Conclusions paragraphs 15 through 18, a district is
required to conduct a manifestation determination when it removes a student from an
educational placement for over 10 days, subjects a student to a pattern of removals that total
more than 10 days, or removes a student to an interim alternative educational setting for
specific conduct involving weapons, drugs, or violent acts.
13.
When Student was suspended in October 2005 for smoking marijuana on
school grounds, a manifestation determination was made that the conduct was not caused by
and did not have a direct and substantial relationship to Student’s disability. It was also
determined that Student’s conduct was not the direct result of District’s failure to implement
her IEP.
14.
District did not conduct a manifestation determination in connection with
Student’s expulsion in January 2006. Mr. Hassberg opined that District was not required to
do so because District previously determined in October 2005 that smoking marijuana was
not a manifestation of Student’s disability. As described in Legal Conclusions paragraph 17,
the fact that District conducted a manifestation determination in October 2005 does not fulfill
its obligation to conduct one in connection with Student’s expulsion in January 2006.
Student offered no evidence that the failure to conduct a manifestation determination resulted
in lost educational opportunity, serious infringement upon the opportunity to participate in
the decision-making process, or a deprivation of educational benefits.
5
Page 6
Interim Alternative Educational Placement
15.
As discussed in Legal Conclusions paragraphs 13 and 14, a district is obligated
to provide a student with special education services whenever a student is suspended for over
10 days or is removed from his or her current educational placement due to specified conduct
involving weapons, drugs, or violent acts. A district must provide services that enable the
student to continue to participate in the general education curriculum and to progress toward
meeting the goals in the student’s IEP. Student was expelled for two months between
January and April 2006 for one of the specified drug offenses and was entitled to receive
education services.
16.
On January 19, 2006, Mr. Hassberg mailed a letter and a packet of school
work to Student. It included materials in math, English, history, and science that would take
two weeks to be completed at a typical pace. In the letter, Mr. Hassberg informed Student
that he and Student’s classroom teacher were available by telephone to assist her if she
needed it. District also offered Student individual, school-based counseling related to
substance abuse. Student never received this letter or packet of school work.
17.
During Student’s removal from ULHS in January through March 2006,
Ms. Lee and Ms. Zepeda actively worked to move Student into an educational placement.
They had repeated contact with several employees of the Lake County Office of Education
and with other schools in the area. There is no evidence that there was any contact between
District and Student until Student and Ms. Lee attended a meeting on March 28, 2006.
Mr. Hassberg informed Student at that meeting that she could return to school.
18.
District failed to provide Student with an interim alternative educational
placement and failed to provide her any educational services during the two months of her
expulsion from January to March 2006. Because the District provided no educational
services to Student, she was unable to continue to participate in the general education
curriculum while she was expelled.
Compensatory Education
19.
As discussed in Legal Conclusions paragraph 20, a student who has graduated
from high school may be awarded compensatory educational services to remedy a school
district’s failure to provide the student a FAPE while in school.
20.
Student graduated from high school with ‘D’ grades in all subjects except art,
in which she received an ‘F.’ In April 2005, Student’s basic reading skills were
approximately at the fourth grade level. Student has difficulty comprehending written
material and problems with memory retention. Student often did not use proper grammar
while she testified. Student has unique needs in the areas of written language and reading.
6
Page 7
LEGAL CONCLUSIONS
Applicable Law
Requirements of a FAPE
1.
A child with a disability has the right to a FAPE. (20 U.S.C. §1412(a)(1)(A);
Ed. Code, § 56000.) A FAPE is defined in pertinent part as special education and related
services that are provided at public expense and under public supervision and direction, that
meet the State’s educational standards, and that conform to the student’s IEP. (20 U.S.C.
§ 1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (o).) Special education is defined in
pertinent part as specially-designed instruction and related services that meet the unique
needs of a child with a disability and are required to assist the child to benefit from
instruction. (20 U.S.C. § 1401(29); Ed. Code, § 56031.)
2.
The IDEA requires a school district to provide “a basic floor of opportunity
. . . [consisting] of access to specialized instruction and related services which are
individually designed to provide educational benefit to the [child with a disability].” (Bd. of
Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176,
201.) The intent of the IDEA is to “open the door of public education” to a child with a
disability; it does not “guarantee any particular level of education once inside.” (Id. at p.
192.) A school district is not required to maximize a child’s potential. (Id. at p. 197.)
3.
The analysis focuses on the placement offered by the school district, not on the
alternative preferred by the parents. (Gregory K. v. Longview School Dist. (9th Cir. 1987)
811 F.2d 1307, 1314.) The district must offer a program that is reasonably calculated to
provide more than a trivial or minimal level of progress. (Amanda J. v. Clark County School
Dist. (9th Cir. 2001) 267 F.3d 877, 890, citing Hall v. Vance County Bd. of Education (4th
Cir. 1985) 774 F.2d 629, 636.)
4.
In addition to these substantive requirements, the Supreme Court recognized
the importance of adhering to the procedural requirements of the IDEA. Thus, the analysis
of whether a student has been provided a FAPE is two-fold: the school district must comply
with the procedural requirements of the IDEA, and the IEP must be reasonably calculated to
provide the child with educational benefits. (Bd. of Education of the Hendrick Hudson
Central School Dist. v. Rowley, supra, 458 U.S. at pp. 206-207.)
5.
While a student is entitled to both the procedural and substantive protections
of the IDEA, not every procedural violation is sufficient to support a finding that a student
was denied a FAPE. Mere technical violations will not render an IEP invalid. (Amanda J. v.
Clark County School Dist., supra, 267 F.3d at p. 892.) To constitute a denial of a FAPE,
procedural violations must result in one of the following: the loss of educational
opportunity; a serious infringement of the parents’ opportunity to participate in the IEP
process; or a deprivation of educational benefits. (Ibid.) A substantially similar standard
7
Page 8
was codified in the IDEIA (20 U.S.C. § 1415(f)(3)(E)(ii)) and is codified in California law
(Ed. Code, § 56505, subd. (f)(2)).
Burden of Proof
6.
As the petitioner, Student has the burden of proving that the District did not
comply with the law. (Schaffer v. Weast (2005) 546 U.S. ___ [126 S.Ct. 528, 163 L.Ed.2d
387].
Transfer of Educational Rights
7.
When a student receiving special education services who is legally competent
reaches 18 years of age, the local educational agency shall provide any required notice of
procedural safeguards to both the student and the student’s parents. (34 C.F.R. § 300.517(a);
Ed. Code, § 56041.5.) All other special education rights previously accorded to the parents
shall transfer to the student. (Ibid.)
Notice of IEP Team Meetings
8.
A parent or guardian shall be notified of the IEP team meeting early enough to
ensure an opportunity to attend. (Ed. Code, §§ 56043, subd. (e); 56341.5, subd. (b).) A
district convening an IEP team meeting shall take steps to ensure that no less than one of the
parents or guardians of the student are present at each meeting or are afforded the
opportunity to participate. (Ed. Code, § 56341.5, subd. (a).) A district is required to provide
these rights to a student who is 18 years of age. (Ed. Code, § 56041.5.)
Requirements of an Evaluation or Assessment
9.
A school district must re-evaluate a child with a disability at least once every
three years, or if a parent or teacher requests an evaluation. (20 U.S.C. § 1414(a)(2);
34 C.F.R. § 300.536(b); Ed. Code, § 56381, subd. (a)(2).) A school district is required to
assess a child in all areas of suspected disability. (20 U.S.C. § 1414(b)(3)(B); 34 C.F.R.
§ 300.532(g); Ed. Code, § 56320, subd. (f).)
10.
Whenever an assessment for the development or revision of an IEP is to be
conducted, the school district shall provide the parent with a written assessment plan meeting
specific requirements within specific time periods. (Ed. Code, § 56321.) An IEP required as
a result of an assessment shall be developed within 60 days from the date the school district
received the parent’s written consent for the assessment, unless the parent agrees in writing
to an extension. (Ed. Code, §§ 56043, subd. (f)(1); 56344, subd. (a).)
8
Page 9
Behavior Intervention Plan
11.
There are two situations in which federal and state law require that a child’s
behavior be addressed. First, when a child’s behavior impedes the child’s learning or that of
others, the IEP team must consider strategies, including positive behavioral interventions,
and supports to address that behavior. (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.346(a)
(2)(i), (b); Ed. Code, § 56341.1, subd. (b)(1).) Second, when a school district subjects a child
to certain types of discipline, it must conduct a functional behavior assessment and
implement a behavior intervention plan, or review and modify the behavior intervention plan
if one is already in place. (20 U.S.C. § 1415(k)(1)(D), (F); 34 C.F.R. § 300.520(b); Ed.
Code, § 48915.5, subd. (a); Alex R. v. Forrestville Valley Community Unit School Dist. #221
(7th Cir. 2004) 375 F.3d 603, 614.)
Discipline Process
12.
School personal may remove a child with a disability who violates a code of
student conduct from his or her current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than 10 school days, to the
extent that the same alternatives are applied to children without disabilities. (20 U.S.C.
§1415(k)(1)(B); Ed. Code, § 48915.5, subd. (a) [a student with a disability may be suspended
or expelled from school as provided by federal law].) The student’s IEP team determines the
interim alternative educational setting to which the student is removed. (20 U.S.C.
§ 1415(k)(2).)
13.
A student who is removed from his or her current placement for disciplinary
reasons for 10 days or less need not receive special education services if educational services
are not provided to a child without a disability who is similarly disciplined. (34 C.F.R.
§ 300.121(d)(1).) However, a student who is removed to an interim alternative educational
setting for not more than 45 school days for carrying or possessing a weapon at school, on
school premises, or at a school function; knowingly possessing or using illegal drugs, or
selling or soliciting the sale of a controlled substance while at school, on school premises, or
at a school function; or inflicting serious bodily injury upon another while at school, on
school premises, or at a school function shall receive educational services. (20 U.S.C.
§ 1415(k)(1)(D)(i).) A student who is removed for these offenses shall receive educational
services that enable him or her to continue to participate in the general education curriculum,
although in another setting, and to progress toward meeting the goals in the student’s IEP.
(Ibid.; see 34 C.F.R. § 300.121(d).) Several factors should be considered when determining
the nature of educational services to be provided, including the length of time the student is
removed from his or her educational placement; the extent to which the child has been
removed previously from the placement; and the child’s needs and educational goals.
(64 Fed.Reg. 12623 (Mar. 12, 1999).
9
Page 10
14.
A student who is either removed for over 10 days, or is subjected to a pattern
of removals that total more than 10 school days in a school year is entitled to receive special
education services. (20 U.S.C. § 1415(k)(1)(C); 34 C.F.R. §§ 300.519(b); 300.520(a)(1)(ii).)
15.
A district is required to conduct a review to determine if the conduct that is
subject to discipline is a manifestation of the student’s disability; this is known as a
“manifestation determination.” A district is required to conduct a manifestation
determination whenever it removes a student from his or her current educational placement
for over 10 days; subjects a student to a pattern of removals that total over 10 days; or
removes a student to an interim alternative educational setting for specific conduct involving
weapons, drugs, or violent acts. (20 U.S.C. § 1415(k)(1)(E).)
16.
A manifestation determination must be conducted by the district, the parent,
and relevant members of the IEP team. (20 U.S.C. § 1415(k)(1)(E)(i).) They must review
all relevant information in the student’s file, including the IEP, any observations of teachers,
and any relevant information from the parents to determine if the conduct was caused by, or
had a direct and substantial relationship to the child’s disability, or if the conduct was the
direct result of the district’s failure to implement the IEP. (Ibid.) The manifestation
determination must be done within 10 school days of a decision to change the placement of
the student due to a violation of the code of student conduct. (Ibid.)
17.
A manifestation determination is an individualized review. (64 Fed.Reg.
12666 (Mar. 12, 1999).) A manifestation determination should be conducted even when a
student engages in the same conduct that was previously determined not to be a
manifestation of his or her disability, because the assessment of the relationship between the
student’s behavior and disability could change. (Ibid.)
18.
If it is determined that the student’s conduct was a manifestation of his or her
disability, the student must be returned to his or her regular educational placement unless
either the parent and district agree to a change of placement, or the student was removed for
enumerated conduct involving weapons, drugs, or violent acts. (20 U.S.C. § 1415(k)
(1)(F)(iii).)
Determination of Relief
19.
Education Code section 56026.1, subdivision (a) and 34 Code of Federal
Regulations part 300.122(a)(3)(i) provide that a student who graduates from high school with
a regular high school diploma is no longer eligible for special education services. Some
courts have found that any claim that a FAPE was denied becomes moot upon a valid
graduation. (Russman v. The Bd. of Education of the Enlarged City School Dist. of the City
of Waterliet (2nd Cir. 2001) 260 F.3d 114, 119; T.S. v. Independent School Dist. No. 54 (10th
Cir. 2001) 265 F.3d 1090, 1092 [If a student who graduated from high school does not
contest his or her graduation in a request for a due process hearing, the case is moot.].)
10
Page 11
20.
Relying upon the United States Supreme Court’s broad interpretation of the
relief authorized for violations of the IDEA in School Committee of the Town of Burlington
v. Dept. of Education of Massachusetts (1985) 471 U.S. 359, 369-370), some courts have
long held that there is authority to order compensatory education to an adult if it is necessary
to cure a past violation. (Bd. of Education of Oak Park & River Forest High School Dist.
200 v. Ill. State Bd. of Education (7th Cir. 1996) 79 F.3d 654, 656; see also Capistrano
Unified School Dist. v. Wartenberg (9th Cir. 1995) 59 F.3d 884, 890 [request for
reimbursement for private school tuition is not moot after the student graduates from high
school]; Maine School Administrative Dist. No. 35 v. Mr. and Mrs. R. (1st Cir. 2003) 321
F.3d 9, 18 [a child eligible for special education services may be entitled to further services
in compensation for past violations even after his or her eligibility for special education
services has expired]; Pihl v. Mass. Dept. of Education (1st Cir. 1993) 9 F.3d 184, 189,
relying upon Zobrest v. Catalina Foothills School Dist. (1993) 509 U.S. 1, 4 fn. 3 [request
for reimbursement of educational services remains a live controversy after student’s
graduation from high school].)
3
21.
It has long been recognized that equitable considerations may be considered
when fashioning relief for violations of the IDEA. (Florence County School Dist. Four v.
Carter (1993) 510 U.S. 7, 16; Parents of Student W v. Puyallup School Dist., No. 3 (9th Cir.
1994) 31 F.3d 1489, 1496.) Compensatory education is an equitable remedy; it is not a
contractual remedy. (Id. at p. 1497.) The law does not require that day-for-day
compensation be awarded for time missed. (Ibid.). Relief is appropriate that is designed to
ensure that the student is appropriately educated within the meaning of the IDEA. (Ibid.)
22.
An award to compensate for past violations must rely on an individualized
assessment, just as an IEP focuses on the individual student’s needs. (Reid v. District of
Columbia (D.C. Cir. 2005) 401 F.3d 516, 524.) When determining an award of
compensatory education, the inquiry must be fact-specific. (Ibid.) The award must 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. (Ibid.)
Determination of Issues
Did District deny Student a FAPE by failing to provide her information concerning the
transfer of special education rights when she turned 18 years of age?
23.
As discussed in Legal Conclusions paragraph 7, all rights under special
education law transferred to Student when she turned 18 years of age. Student argued that as
part of the transfer of rights to Student, District was required to inform her how she could
assign her educational rights to another person. As determined in Factual Findings paragraph
3
An unpublished federal district court decision in California followed this view, San Dieguito Union High
School Dist. v. Guray-Jacobs (S.D. Cal. 2005) 44 IDELR 189, which offers persuasive, but not precedential
authority. (City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5
[citation of unpublished federal district court decision is not prohibited by California Rules of Court, rule 977].)
11
Page 12
2, District did not deny Student a FAPE by failing to provide her with information about how
she could assign her special education rights to someone else.
Did District deny Student a FAPE by failing to provide Student and her advocates written
notice of the IEP team meetings on March 28, April 28, and May 8, 2006
24.
As discussed in Legal Conclusions paragraph 8, District was required to
provide Student notice of any IEP team meeting. As determined in Factual Findings
paragraphs 4 and 5, District did not deny Student a FAPE by failing to provide Student or her
advocates with notice of IEP team meetings on March 28, April 28, and May 8, 2006.
Did District deny Student a FAPE by failing to provide Student a timely assessment?
25.
As discussed in Legal Conclusions paragraphs 9 and 10, District was required
to assess Student at least once every three years or if a teacher or Student requested an
assessment. As determined in Factual Findings paragraph 6, District did not deny Student a
FAPE by failing to provide Student a timely assessment.
Did District deny Student a FAPE by failing to implement Student’s positive behavior plan?
26.
As discussed in Legal Conclusions paragraphs 1 and 11, District was required
to implement Student’s behavior plan to provide her a FAPE. As determined in Factual
Findings paragraphs 8 through 11, District denied Student a FAPE by failing to provide
Student the counseling required by her behavior plan.
Did District deny Student a FAPE by failing to follow the required process when disciplining
Student?
27.
As discussed in Legal Conclusions paragraphs 15 and 16 and as determined by
Factual Findings paragraph 14, District failed to conduct a manifestation determination when
it expelled Student in January 2006. As determined by Factual Findings paragraph 14,
Student failed to show that she lost educational opportunity, was unable to meaningfully
participate in the IEP process, or was deprived of educational benefits. As discussed in
Legal Conclusions paragraph 5, District did not deny Student a FAPE by failing to conduct a
manifestation determination concerning her expulsion in January 2006.
28.
As discussed in Legal Conclusions paragraphs 12 through 14, District was
required to provide educational services to Student during her expulsion from January to
March 2006 to enable her to continue to participate in the general education curriculum and
to progress toward meeting the goals in her IEP. As determined by Factual Findings
paragraph 18, District denied Student a FAPE by failing to provide educational services to
her during her expulsion.
12
Page 13
Is Student entitled to receive compensatory education?
29.
As discussed in Legal Conclusions paragraph 20, Student is entitled to receive
compensatory education services for the District’s denial of a FAPE. As determined in Legal
Conclusions paragraphs 26 and 28, District failed to provide Student a FAPE by failing to
implement her October 2005 positive behavior plan and by failing to provide educational
services during her expulsion in January to March 2006.
30.
As discussed in Legal Conclusions paragraphs 21 and 22, an award of
compensatory education is designed to compensate Student for the special education and
related services that the District failed to provide her. As determined by Factual Findings
paragraph 20, Student requires compensatory education in the areas of written language and
reading. Student shall receive 24 hours of individual instruction by a credentialed teacher in
written language and reading. The instruction may be provided by District staff, or the
District shall arrange for the instruction to be provided by an independent vendor.
31.
As determined by Factual Findings paragraph 10, District failed to provide
counseling to Student as required by her behavior support plan. Student shall receive three
hours of individual counseling by an appropriately-licensed mental health professional who
is not a District employee. The counseling shall include methods Student can use to achieve
a calmer, more relaxed state of mind.
ORDER
1.
Student is entitled to 24 hours a of individual instruction by a credentialed
teacher in written language and reading. The instruction shall be provided by
a credentialed teacher. The instruction may be provided by District staff, or
the District shall arrange for the instruction to be provided by an independent
vendor.
2.
Student is entitled to three hours of individual counseling by an appropriately-
licensed mental health professional who is not a District employee. The
counseling shall include methods Student can use to achieve a calmer, more
relaxed state of mind.
3.
Student’s further request for relief is denied.
PREVAILING PARTY
Education Code section 56507, subdivision (d), requires a decision to indicate the
extent to which each party prevailed on each issue heard and decided. Student prevailed on
issues 4 and 5. District prevailed on issues 1, 2, and 3.
13
Page 14
RIGHT TO APPEAL THIS DECISION
The parties to this case have the right to appeal this Decision to a court of competent
jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this decision.
(Ed. Code, § 56505, subd. (k).)
Dated: September 26, 2006
___________________________
JUDITH A. KOPEC
Administrative Law Judge
Special Education Division
Office of Administrative Hearings
14
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Page 1
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
SPECIAL EDUCATION DIVISION
STATE OF CALIFORNIA
In the Matter of:
STUDENT,
Petitioner,
v.
UPPER LAKE UNION HIGH SCHOOL
DISTRICT,
Respondent.
OAH CASE NO. N2006050375
DECISION
Judith A. Kopec, Administrative Law Judge, Office of Administrative Hearings,
Special Education Division, State of California, heard this matter on September 12, 2006, in
Upper Lake, California.
Gayle Zepeda, Education Director, Robinson Rancheria Band of Pomo Indians, and
Marsha M. Lee, Indian Child Welfare Act/Human Services Coordinator, Robinson Rancheria
Band of Pomo Indians, represented Petitioner (Student). Student also attended.
Jeff Hassberg, Director of Special Education and School Psychologist, represented
Respondent Upper Lake Union High School District (District). Don Boyd, Vice Principal,
Upper Lake High School (ULHS), also attended.
Student filed the amended Complaint on July 17, 2006. The hearing was conducted
and the matter was submitted on September 12, 2006.
Page 2
ISSUES
1
Did District deny Student a free and appropriate public education (FAPE) by the
following:
1.
Failing to provide Student with information concerning the transfer of special
education rights when she turned 18 years of age?
2.
Failing to provide Student and her advocates written notice of the
individualized education program (IEP) team meetings on March 28, April 28,
and May 8, 2006?
3.
Failing to provide Student a timely assessment?
4.
Failing to implement Student’s positive behavior plan?
5.
Failing to follow the required process when disciplining Student?
CONTENTIONS OF THE PARTIES
Student contends that District was required to have Student complete a written
assignment of educational decision-making authority when she reached 18 years of age.
District contends that it was not required to have Student complete a written assignment of
educational decision-making authority.
Student contends that District failed to give her or her advocates written notice of IEP
team meetings on March 28, April 28, and May 8, 2006. District contends that Student did
not authorize District to inform her advocates of the IEP team meetings.
Student contends that District failed to provide Student a timely cognitive ability
assessment and social-emotional assessment because it offered to assess her shortly before
she graduated from high school. District contends that its plan to assess Student was
appropriate.
Student contends that District failed to implement her positive behavior plan. District
contends that it attempted to implement Student’s positive behavior plan but Student refused
the services that were offered.
Student contends that District expelled Student on January 17, 2006, without
conducting a manifestation determination. District contends that it was not required to do so
because it conducted one in October 2005 when Student was suspended for the same
conduct. Student contends that District expelled her in January 2006 without providing her
1
The issues were re-organized for purpose of this decision.
2
Page 3
an interim alternative educational placement or any educational services. District contends
that it provided educational services by mailing Student a packet of educational materials
that she was to complete during her expulsion.
Student contends that she is entitled to receive unspecified compensatory education
from the District. District contends that Student is not entitled to compensatory education
because she graduated from high school with a regular diploma.
FACTUAL FINDINGS
Background Information
1.
Student is eligible for special education services on the basis of a specific
learning disability. She attended District’s ULHS during the 2005-2006 school year and
graduated with a regular diploma at the end of the school year.
Transfer of Special Education Rights
2.
As described in Legal Conclusions paragraph 7, upon reaching 18 years of
age, all rights under special education law transfer to a student who is legally competent.
Student was 18 years old when she first attended a District school. Student understood that
once she turned 18 years old, she was responsible for signing her IEPs and other special
education documents. District neither provided Student information about how she could
assign her special education rights to someone else once she reached 18 years of age, nor was
District required to do so.
Notices of IEP Team Meetings to Student and Advocates
3.
As discussed in Legal Conclusions paragraph 8, a student who is 18 years of
age is entitled to receive notices of IEP team meetings.
4.
Student has failed to show that IEP team meetings were held on March 28 or
May 8, 2006. District was not required to send notices of meetings on March 28 and May 8,
2006, to Student or her advocates.
5.
An IEP team meeting was held on April 28, 2006. Student did not offer any
evidence about whether or not she received notice of this meeting. There is insufficient
evidence that District failed to send Student timely notice of the IEP team meeting on
April 28, 2006. District was not required to send a notice of that meeting to either Ms. Lee
or Ms. Zepeda.
3
Page 4
Timely Assessment of Student
6.
As discussed in Legal Conclusions paragraph 9, a district must assess a student
at least once every three years, or if a parent or teacher requests an assessment. At a meeting
on May 25, 2006, District offered Student an assessment plan for a comprehensive psycho-
educational assessment to be performed by School Psychologist Jeff Hassberg. It is
unknown whether Student attended this meeting. Ms. Lee attended the meeting and objected
to the assessment plan because she did not believe that Mr. Hassberg would perform an
objective assessment. The assessment plan was never signed. Student has not shown that
District failed to perform a timely triennial assessment. There is no evidence that Student, or
anyone on her behalf, requested an assessment that was not performed. Student has failed to
show that District failed to provide a timely assessment.
Student’s Discipline History
7.
Student was suspended for five days in October 2005 for smoking marijuana
on school grounds. She was expelled for smoking marijuana on school grounds in
January 2006. On February 22, 2006, District’s governing board suspended the expulsion
and placed Student on probation as long as she complied with specific conditions. Although
Student could have attended ULHS after the school board’s action, the District did not
inform Student that she could return to school until March 28, 2006. Student was removed
from her educational placement for two months after she was expelled. Student was
disciplined for the third time in May 2006 after an incident with a classroom aide. The
punishment for this incident is unclear.
2
Implementation of Student’s Behavior Plan
8.
As discussed in Legal Conclusions paragraph 11, a district is required to
develop and implement a behavior plan in connection with the imposition of discipline. On
October 28, 2005, District developed a positive behavior support plan for Student in
connection with her suspension for smoking marijuana at school. The antecedent behavior to
the inappropriate conduct identified in the behavior plan is Student’s need to alter her mood
to achieve a calmer, more relaxed state. The behavior plan was designed to provide Student
with alternative methods to achieve a calm, relaxed state of mind.
9.
The behavior plan required that Student have a minimum of three, 20-minute
sessions with the school psychologist during the 2005-2006 school year. During these
sessions, Student was to practice breathing and visualization techniques to achieve a calmer,
more relaxed state of mind, and discuss other methods to assist her, such as dream
manipulation and meditation. Once developed, the behavior plan is part of Student’s IEP.
2
Although Student testified that she was expelled for the May incident, her testimony in this area is not
persuasive because she appeared confused about the chronology of her discipline in January and May 2006.
4
Page 5
10.
Mr. Hassberg met with Student for 15 minutes on November 16, 2005. He
gave her information concerning substance abuse, and told her that they would meet again to
implement the behavior plan. On December 8, 2005 and January 10, 2006, Mr. Hassberg
attempted to conduct counseling sessions with Student. However, she refused to leave her
classroom and go to Mr. Hassberg’s offices for the sessions. Mr. Hassberg made no further
attempts to implement Student’s behavior plan because he believed that Student was resistant
to counseling and was not going to benefit from the counseling required by the behavior
plan. Student was never provided information about breathing and visualization techniques,
dream manipulation or meditation, as required by her behavior plan. District took no steps to
modify Student’s behavior plan. The District failed to implement the counseling required by
Student’s October 2005 positive behavior plan.
11.
The behavior plan also requires that if Student uses marijuana again, she will
be instructed concerning the dangers of marijuana dependency, and an emergency IEP team
meeting will be held to review her IEP and behavior plan to determine the appropriateness of
the IEP and related support services. Student offered no evidence concerning whether or not
District complied with these requirements of the behavior plan when she was disciplined
again in January 2006 for using marijuana at school. The May 2006 incident for which
Student was disciplined did not involve substance abuse; therefore, Student’s behavior plan
did not require any action by District. There is no evidence that District failed to implement
Student’s behavior plan in connection with the May 2006 incident.
Manifestation Determination for January 2006 Expulsion
12.
As discussed in Legal Conclusions paragraphs 15 through 18, a district is
required to conduct a manifestation determination when it removes a student from an
educational placement for over 10 days, subjects a student to a pattern of removals that total
more than 10 days, or removes a student to an interim alternative educational setting for
specific conduct involving weapons, drugs, or violent acts.
13.
When Student was suspended in October 2005 for smoking marijuana on
school grounds, a manifestation determination was made that the conduct was not caused by
and did not have a direct and substantial relationship to Student’s disability. It was also
determined that Student’s conduct was not the direct result of District’s failure to implement
her IEP.
14.
District did not conduct a manifestation determination in connection with
Student’s expulsion in January 2006. Mr. Hassberg opined that District was not required to
do so because District previously determined in October 2005 that smoking marijuana was
not a manifestation of Student’s disability. As described in Legal Conclusions paragraph 17,
the fact that District conducted a manifestation determination in October 2005 does not fulfill
its obligation to conduct one in connection with Student’s expulsion in January 2006.
Student offered no evidence that the failure to conduct a manifestation determination resulted
in lost educational opportunity, serious infringement upon the opportunity to participate in
the decision-making process, or a deprivation of educational benefits.
5
Page 6
Interim Alternative Educational Placement
15.
As discussed in Legal Conclusions paragraphs 13 and 14, a district is obligated
to provide a student with special education services whenever a student is suspended for over
10 days or is removed from his or her current educational placement due to specified conduct
involving weapons, drugs, or violent acts. A district must provide services that enable the
student to continue to participate in the general education curriculum and to progress toward
meeting the goals in the student’s IEP. Student was expelled for two months between
January and April 2006 for one of the specified drug offenses and was entitled to receive
education services.
16.
On January 19, 2006, Mr. Hassberg mailed a letter and a packet of school
work to Student. It included materials in math, English, history, and science that would take
two weeks to be completed at a typical pace. In the letter, Mr. Hassberg informed Student
that he and Student’s classroom teacher were available by telephone to assist her if she
needed it. District also offered Student individual, school-based counseling related to
substance abuse. Student never received this letter or packet of school work.
17.
During Student’s removal from ULHS in January through March 2006,
Ms. Lee and Ms. Zepeda actively worked to move Student into an educational placement.
They had repeated contact with several employees of the Lake County Office of Education
and with other schools in the area. There is no evidence that there was any contact between
District and Student until Student and Ms. Lee attended a meeting on March 28, 2006.
Mr. Hassberg informed Student at that meeting that she could return to school.
18.
District failed to provide Student with an interim alternative educational
placement and failed to provide her any educational services during the two months of her
expulsion from January to March 2006. Because the District provided no educational
services to Student, she was unable to continue to participate in the general education
curriculum while she was expelled.
Compensatory Education
19.
As discussed in Legal Conclusions paragraph 20, a student who has graduated
from high school may be awarded compensatory educational services to remedy a school
district’s failure to provide the student a FAPE while in school.
20.
Student graduated from high school with ‘D’ grades in all subjects except art,
in which she received an ‘F.’ In April 2005, Student’s basic reading skills were
approximately at the fourth grade level. Student has difficulty comprehending written
material and problems with memory retention. Student often did not use proper grammar
while she testified. Student has unique needs in the areas of written language and reading.
6
Page 7
LEGAL CONCLUSIONS
Applicable Law
Requirements of a FAPE
1.
A child with a disability has the right to a FAPE. (20 U.S.C. §1412(a)(1)(A);
Ed. Code, § 56000.) A FAPE is defined in pertinent part as special education and related
services that are provided at public expense and under public supervision and direction, that
meet the State’s educational standards, and that conform to the student’s IEP. (20 U.S.C.
§ 1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (o).) Special education is defined in
pertinent part as specially-designed instruction and related services that meet the unique
needs of a child with a disability and are required to assist the child to benefit from
instruction. (20 U.S.C. § 1401(29); Ed. Code, § 56031.)
2.
The IDEA requires a school district to provide “a basic floor of opportunity
. . . [consisting] of access to specialized instruction and related services which are
individually designed to provide educational benefit to the [child with a disability].” (Bd. of
Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176,
201.) The intent of the IDEA is to “open the door of public education” to a child with a
disability; it does not “guarantee any particular level of education once inside.” (Id. at p.
192.) A school district is not required to maximize a child’s potential. (Id. at p. 197.)
3.
The analysis focuses on the placement offered by the school district, not on the
alternative preferred by the parents. (Gregory K. v. Longview School Dist. (9th Cir. 1987)
811 F.2d 1307, 1314.) The district must offer a program that is reasonably calculated to
provide more than a trivial or minimal level of progress. (Amanda J. v. Clark County School
Dist. (9th Cir. 2001) 267 F.3d 877, 890, citing Hall v. Vance County Bd. of Education (4th
Cir. 1985) 774 F.2d 629, 636.)
4.
In addition to these substantive requirements, the Supreme Court recognized
the importance of adhering to the procedural requirements of the IDEA. Thus, the analysis
of whether a student has been provided a FAPE is two-fold: the school district must comply
with the procedural requirements of the IDEA, and the IEP must be reasonably calculated to
provide the child with educational benefits. (Bd. of Education of the Hendrick Hudson
Central School Dist. v. Rowley, supra, 458 U.S. at pp. 206-207.)
5.
While a student is entitled to both the procedural and substantive protections
of the IDEA, not every procedural violation is sufficient to support a finding that a student
was denied a FAPE. Mere technical violations will not render an IEP invalid. (Amanda J. v.
Clark County School Dist., supra, 267 F.3d at p. 892.) To constitute a denial of a FAPE,
procedural violations must result in one of the following: the loss of educational
opportunity; a serious infringement of the parents’ opportunity to participate in the IEP
process; or a deprivation of educational benefits. (Ibid.) A substantially similar standard
7
Page 8
was codified in the IDEIA (20 U.S.C. § 1415(f)(3)(E)(ii)) and is codified in California law
(Ed. Code, § 56505, subd. (f)(2)).
Burden of Proof
6.
As the petitioner, Student has the burden of proving that the District did not
comply with the law. (Schaffer v. Weast (2005) 546 U.S. ___ [126 S.Ct. 528, 163 L.Ed.2d
387].
Transfer of Educational Rights
7.
When a student receiving special education services who is legally competent
reaches 18 years of age, the local educational agency shall provide any required notice of
procedural safeguards to both the student and the student’s parents. (34 C.F.R. § 300.517(a);
Ed. Code, § 56041.5.) All other special education rights previously accorded to the parents
shall transfer to the student. (Ibid.)
Notice of IEP Team Meetings
8.
A parent or guardian shall be notified of the IEP team meeting early enough to
ensure an opportunity to attend. (Ed. Code, §§ 56043, subd. (e); 56341.5, subd. (b).) A
district convening an IEP team meeting shall take steps to ensure that no less than one of the
parents or guardians of the student are present at each meeting or are afforded the
opportunity to participate. (Ed. Code, § 56341.5, subd. (a).) A district is required to provide
these rights to a student who is 18 years of age. (Ed. Code, § 56041.5.)
Requirements of an Evaluation or Assessment
9.
A school district must re-evaluate a child with a disability at least once every
three years, or if a parent or teacher requests an evaluation. (20 U.S.C. § 1414(a)(2);
34 C.F.R. § 300.536(b); Ed. Code, § 56381, subd. (a)(2).) A school district is required to
assess a child in all areas of suspected disability. (20 U.S.C. § 1414(b)(3)(B); 34 C.F.R.
§ 300.532(g); Ed. Code, § 56320, subd. (f).)
10.
Whenever an assessment for the development or revision of an IEP is to be
conducted, the school district shall provide the parent with a written assessment plan meeting
specific requirements within specific time periods. (Ed. Code, § 56321.) An IEP required as
a result of an assessment shall be developed within 60 days from the date the school district
received the parent’s written consent for the assessment, unless the parent agrees in writing
to an extension. (Ed. Code, §§ 56043, subd. (f)(1); 56344, subd. (a).)
8
Page 9
Behavior Intervention Plan
11.
There are two situations in which federal and state law require that a child’s
behavior be addressed. First, when a child’s behavior impedes the child’s learning or that of
others, the IEP team must consider strategies, including positive behavioral interventions,
and supports to address that behavior. (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.346(a)
(2)(i), (b); Ed. Code, § 56341.1, subd. (b)(1).) Second, when a school district subjects a child
to certain types of discipline, it must conduct a functional behavior assessment and
implement a behavior intervention plan, or review and modify the behavior intervention plan
if one is already in place. (20 U.S.C. § 1415(k)(1)(D), (F); 34 C.F.R. § 300.520(b); Ed.
Code, § 48915.5, subd. (a); Alex R. v. Forrestville Valley Community Unit School Dist. #221
(7th Cir. 2004) 375 F.3d 603, 614.)
Discipline Process
12.
School personal may remove a child with a disability who violates a code of
student conduct from his or her current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than 10 school days, to the
extent that the same alternatives are applied to children without disabilities. (20 U.S.C.
§1415(k)(1)(B); Ed. Code, § 48915.5, subd. (a) [a student with a disability may be suspended
or expelled from school as provided by federal law].) The student’s IEP team determines the
interim alternative educational setting to which the student is removed. (20 U.S.C.
§ 1415(k)(2).)
13.
A student who is removed from his or her current placement for disciplinary
reasons for 10 days or less need not receive special education services if educational services
are not provided to a child without a disability who is similarly disciplined. (34 C.F.R.
§ 300.121(d)(1).) However, a student who is removed to an interim alternative educational
setting for not more than 45 school days for carrying or possessing a weapon at school, on
school premises, or at a school function; knowingly possessing or using illegal drugs, or
selling or soliciting the sale of a controlled substance while at school, on school premises, or
at a school function; or inflicting serious bodily injury upon another while at school, on
school premises, or at a school function shall receive educational services. (20 U.S.C.
§ 1415(k)(1)(D)(i).) A student who is removed for these offenses shall receive educational
services that enable him or her to continue to participate in the general education curriculum,
although in another setting, and to progress toward meeting the goals in the student’s IEP.
(Ibid.; see 34 C.F.R. § 300.121(d).) Several factors should be considered when determining
the nature of educational services to be provided, including the length of time the student is
removed from his or her educational placement; the extent to which the child has been
removed previously from the placement; and the child’s needs and educational goals.
(64 Fed.Reg. 12623 (Mar. 12, 1999).
9
Page 10
14.
A student who is either removed for over 10 days, or is subjected to a pattern
of removals that total more than 10 school days in a school year is entitled to receive special
education services. (20 U.S.C. § 1415(k)(1)(C); 34 C.F.R. §§ 300.519(b); 300.520(a)(1)(ii).)
15.
A district is required to conduct a review to determine if the conduct that is
subject to discipline is a manifestation of the student’s disability; this is known as a
“manifestation determination.” A district is required to conduct a manifestation
determination whenever it removes a student from his or her current educational placement
for over 10 days; subjects a student to a pattern of removals that total over 10 days; or
removes a student to an interim alternative educational setting for specific conduct involving
weapons, drugs, or violent acts. (20 U.S.C. § 1415(k)(1)(E).)
16.
A manifestation determination must be conducted by the district, the parent,
and relevant members of the IEP team. (20 U.S.C. § 1415(k)(1)(E)(i).) They must review
all relevant information in the student’s file, including the IEP, any observations of teachers,
and any relevant information from the parents to determine if the conduct was caused by, or
had a direct and substantial relationship to the child’s disability, or if the conduct was the
direct result of the district’s failure to implement the IEP. (Ibid.) The manifestation
determination must be done within 10 school days of a decision to change the placement of
the student due to a violation of the code of student conduct. (Ibid.)
17.
A manifestation determination is an individualized review. (64 Fed.Reg.
12666 (Mar. 12, 1999).) A manifestation determination should be conducted even when a
student engages in the same conduct that was previously determined not to be a
manifestation of his or her disability, because the assessment of the relationship between the
student’s behavior and disability could change. (Ibid.)
18.
If it is determined that the student’s conduct was a manifestation of his or her
disability, the student must be returned to his or her regular educational placement unless
either the parent and district agree to a change of placement, or the student was removed for
enumerated conduct involving weapons, drugs, or violent acts. (20 U.S.C. § 1415(k)
(1)(F)(iii).)
Determination of Relief
19.
Education Code section 56026.1, subdivision (a) and 34 Code of Federal
Regulations part 300.122(a)(3)(i) provide that a student who graduates from high school with
a regular high school diploma is no longer eligible for special education services. Some
courts have found that any claim that a FAPE was denied becomes moot upon a valid
graduation. (Russman v. The Bd. of Education of the Enlarged City School Dist. of the City
of Waterliet (2nd Cir. 2001) 260 F.3d 114, 119; T.S. v. Independent School Dist. No. 54 (10th
Cir. 2001) 265 F.3d 1090, 1092 [If a student who graduated from high school does not
contest his or her graduation in a request for a due process hearing, the case is moot.].)
10
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20.
Relying upon the United States Supreme Court’s broad interpretation of the
relief authorized for violations of the IDEA in School Committee of the Town of Burlington
v. Dept. of Education of Massachusetts (1985) 471 U.S. 359, 369-370), some courts have
long held that there is authority to order compensatory education to an adult if it is necessary
to cure a past violation. (Bd. of Education of Oak Park & River Forest High School Dist.
200 v. Ill. State Bd. of Education (7th Cir. 1996) 79 F.3d 654, 656; see also Capistrano
Unified School Dist. v. Wartenberg (9th Cir. 1995) 59 F.3d 884, 890 [request for
reimbursement for private school tuition is not moot after the student graduates from high
school]; Maine School Administrative Dist. No. 35 v. Mr. and Mrs. R. (1st Cir. 2003) 321
F.3d 9, 18 [a child eligible for special education services may be entitled to further services
in compensation for past violations even after his or her eligibility for special education
services has expired]; Pihl v. Mass. Dept. of Education (1st Cir. 1993) 9 F.3d 184, 189,
relying upon Zobrest v. Catalina Foothills School Dist. (1993) 509 U.S. 1, 4 fn. 3 [request
for reimbursement of educational services remains a live controversy after student’s
graduation from high school].)
3
21.
It has long been recognized that equitable considerations may be considered
when fashioning relief for violations of the IDEA. (Florence County School Dist. Four v.
Carter (1993) 510 U.S. 7, 16; Parents of Student W v. Puyallup School Dist., No. 3 (9th Cir.
1994) 31 F.3d 1489, 1496.) Compensatory education is an equitable remedy; it is not a
contractual remedy. (Id. at p. 1497.) The law does not require that day-for-day
compensation be awarded for time missed. (Ibid.). Relief is appropriate that is designed to
ensure that the student is appropriately educated within the meaning of the IDEA. (Ibid.)
22.
An award to compensate for past violations must rely on an individualized
assessment, just as an IEP focuses on the individual student’s needs. (Reid v. District of
Columbia (D.C. Cir. 2005) 401 F.3d 516, 524.) When determining an award of
compensatory education, the inquiry must be fact-specific. (Ibid.) The award must 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. (Ibid.)
Determination of Issues
Did District deny Student a FAPE by failing to provide her information concerning the
transfer of special education rights when she turned 18 years of age?
23.
As discussed in Legal Conclusions paragraph 7, all rights under special
education law transferred to Student when she turned 18 years of age. Student argued that as
part of the transfer of rights to Student, District was required to inform her how she could
assign her educational rights to another person. As determined in Factual Findings paragraph
3
An unpublished federal district court decision in California followed this view, San Dieguito Union High
School Dist. v. Guray-Jacobs (S.D. Cal. 2005) 44 IDELR 189, which offers persuasive, but not precedential
authority. (City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5
[citation of unpublished federal district court decision is not prohibited by California Rules of Court, rule 977].)
11
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2, District did not deny Student a FAPE by failing to provide her with information about how
she could assign her special education rights to someone else.
Did District deny Student a FAPE by failing to provide Student and her advocates written
notice of the IEP team meetings on March 28, April 28, and May 8, 2006
24.
As discussed in Legal Conclusions paragraph 8, District was required to
provide Student notice of any IEP team meeting. As determined in Factual Findings
paragraphs 4 and 5, District did not deny Student a FAPE by failing to provide Student or her
advocates with notice of IEP team meetings on March 28, April 28, and May 8, 2006.
Did District deny Student a FAPE by failing to provide Student a timely assessment?
25.
As discussed in Legal Conclusions paragraphs 9 and 10, District was required
to assess Student at least once every three years or if a teacher or Student requested an
assessment. As determined in Factual Findings paragraph 6, District did not deny Student a
FAPE by failing to provide Student a timely assessment.
Did District deny Student a FAPE by failing to implement Student’s positive behavior plan?
26.
As discussed in Legal Conclusions paragraphs 1 and 11, District was required
to implement Student’s behavior plan to provide her a FAPE. As determined in Factual
Findings paragraphs 8 through 11, District denied Student a FAPE by failing to provide
Student the counseling required by her behavior plan.
Did District deny Student a FAPE by failing to follow the required process when disciplining
Student?
27.
As discussed in Legal Conclusions paragraphs 15 and 16 and as determined by
Factual Findings paragraph 14, District failed to conduct a manifestation determination when
it expelled Student in January 2006. As determined by Factual Findings paragraph 14,
Student failed to show that she lost educational opportunity, was unable to meaningfully
participate in the IEP process, or was deprived of educational benefits. As discussed in
Legal Conclusions paragraph 5, District did not deny Student a FAPE by failing to conduct a
manifestation determination concerning her expulsion in January 2006.
28.
As discussed in Legal Conclusions paragraphs 12 through 14, District was
required to provide educational services to Student during her expulsion from January to
March 2006 to enable her to continue to participate in the general education curriculum and
to progress toward meeting the goals in her IEP. As determined by Factual Findings
paragraph 18, District denied Student a FAPE by failing to provide educational services to
her during her expulsion.
12
Page 13
Is Student entitled to receive compensatory education?
29.
As discussed in Legal Conclusions paragraph 20, Student is entitled to receive
compensatory education services for the District’s denial of a FAPE. As determined in Legal
Conclusions paragraphs 26 and 28, District failed to provide Student a FAPE by failing to
implement her October 2005 positive behavior plan and by failing to provide educational
services during her expulsion in January to March 2006.
30.
As discussed in Legal Conclusions paragraphs 21 and 22, an award of
compensatory education is designed to compensate Student for the special education and
related services that the District failed to provide her. As determined by Factual Findings
paragraph 20, Student requires compensatory education in the areas of written language and
reading. Student shall receive 24 hours of individual instruction by a credentialed teacher in
written language and reading. The instruction may be provided by District staff, or the
District shall arrange for the instruction to be provided by an independent vendor.
31.
As determined by Factual Findings paragraph 10, District failed to provide
counseling to Student as required by her behavior support plan. Student shall receive three
hours of individual counseling by an appropriately-licensed mental health professional who
is not a District employee. The counseling shall include methods Student can use to achieve
a calmer, more relaxed state of mind.
ORDER
1.
Student is entitled to 24 hours a of individual instruction by a credentialed
teacher in written language and reading. The instruction shall be provided by
a credentialed teacher. The instruction may be provided by District staff, or
the District shall arrange for the instruction to be provided by an independent
vendor.
2.
Student is entitled to three hours of individual counseling by an appropriately-
licensed mental health professional who is not a District employee. The
counseling shall include methods Student can use to achieve a calmer, more
relaxed state of mind.
3.
Student’s further request for relief is denied.
PREVAILING PARTY
Education Code section 56507, subdivision (d), requires a decision to indicate the
extent to which each party prevailed on each issue heard and decided. Student prevailed on
issues 4 and 5. District prevailed on issues 1, 2, and 3.
13
Page 14
RIGHT TO APPEAL THIS DECISION
The parties to this case have the right to appeal this Decision to a court of competent
jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this decision.
(Ed. Code, § 56505, subd. (k).)
Dated: September 26, 2006
___________________________
JUDITH A. KOPEC
Administrative Law Judge
Special Education Division
Office of Administrative Hearings
14
The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients -
If this was leaked to the media did the Caller Times tell us about this pedophile?
Did the Caller publish any stories on this matter?
And the CCISD Board did they inform the community?
The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients - even after he had been publicly charged.
CORPUS CHRISTI - James Plaisted was a respected child psychologist, a deacon in one of the city's largest Baptist congregations and the father of four.
He also was a child molester so brazen he escorted little girls into church and fondled them under his coat while listening to the sermon.
Parents knew. So did church pastors, school officials and state regulators. But few did anything to stop him, and those who tried were remarkably unsuccessful.
It took 10 years to get Plaisted behind bars. Only he knows how many children he molested during that time.
Last month, Plaisted - already serving a two-year federal prison term for luring a Texas patient to Boston to continue molesting her -was brought back to Corpus Christi in chains.
He pleaded guilty to sexually assaulting four girls and was sentenced to 40 years in prison.
State regulators have yet to revoke his license to practice psychology.
""I think the Plaisted case is the model of what happens when the system fights with itself," said Susan Snyder, a Kingsville attorney and former prosecutor who tried to lock up Plaisted in 1992.
""Obviously, there have been safeguards in place to prevent this man all along, but either (state officials) were too lazy or too busy, or too scared of the politics of going and yanking this man's license," Snyder said. ""It's not the legal system failing. It's the people within the legal system that refuse to let the legal system work."
It's not as if no one tried.
Carmen Alvarado, the mother of the first child to accuse Plaisted more than 10 years ago, sought criminal charges against the therapist and filed an ethics complaint with the Texas Board of Examiners of Psychologists. She alleged that Plaisted had fondled her son's penis during a late-night counseling session.
Alvarado called the Parkdale Baptist Church, where Plaisted, 46, was a deacon.
""They said they were leaving it in God's hands," she recalled.
""I don't think they were thinking straight at the time."
She went to other parents. She got no help.
In the end, it was just her son's word against Plaisted, who told a Corpus Christi jury in 1986 that the 6-year-old child was a habitual liar and a pyromaniac who derived sexual excitement from setting fires. It didn't help that a new prosecutor was assigned to the case just before trial.
The jury acquitted Plaisted; his practice continued.
""It made me mad because when I went for help, all I asked was for them to testify," Alvarado recalled. ""We lost because my son was the only witness we had."
""It was a very tough call to make," said another victim's mother. ""And looking back, I really should have crucified him, but I didn't. I chose not to after talking to my attorney. He told me it would just really traumatize my daughter."
The Corpus Christi woman, who asked not to be identified, said she did confront Plaisted and his wife, who were neighbors in 1984, when her daughter was allegedly molested while spending the night with one of Plaisted's daughters.
""He did not deny it," she said. ""He said he could have done it
in his sleep."
Plaisted's wife laughingly added that she and her husband often made love at night, and he would not remember the next morning, the woman said.
The woman, who was also a member of the Parkdale Baptist Church, recalled telling church officials later about Plaisted's molestations.
""But it didn't seem to make any difference," she said. ""The church really backed him up, and a lot of people left the church after that."
Plaisted's attorney, Doug Tinker, refused to allow the Chronicle to interview his client. The criminal defense lawyer, who earlier this year represented Yolanda Saldivar, who was convicted of murdering Tejano star Selena, declined to discuss the Plaisted case.
The victims' families have since sued the church for negligence, but Parkdale's lawyer argues the congregation should not be held responsible for Plaisted's actions.
""It would be the church's wish to get this thing resolved without causing any additional hurt to anyone," said attorney Van Huseman. But he added, ""If a child gets molested in the middle of the service, how does that get to be the pastor's fault?"
Plaisted - a Nebraska native who served in the Army in Vietnam -came to Corpus Christi in 1982 with impeccable credentials, having earned his doctorate in clinical and child psychology from Auburn University in Alabama in 1981.
He quickly built a private practice, and over the years, developed a good reputation as an expert on brain dysfunction.
The Corpus Christi school district, along with local pediatricians, eagerly supplied him with young patients - even after he had been publicly charged. Members of the church also sought his help, and he had hospital privileges at the prestigious Driscoll Children's Hospital, a South Texas institution known both for quality care and charity.
Neighbors described Plaisted as pleasant, reserved, well-spoken. He was methodical, they said, and liked to work on projects around the house.
Plaisted recruited some of his victims from broken homes, showering the children with gifts, inviting them and their parents to Thanksgiving dinners. One 9-year-old girl who spent the night with Plaisted's daughter told prosecutors the psychologist molested her on the sofa in his living room while he and the children watched the movie "Home Alone"
on video.
He curried favor with his victims' parents by lending them money and refusing repayment, or by buying them air conditioners and other gifts. One mother even acted as a character witness for the therapist during the Alvarado trial, unaware that her own child was being molested.
""The bottom line is this guy had complaints filed against him at the psychology board - and they are serious - and the board doesn't notify the school about the complaints," said Jerry Boswell, director of the Citizens Commission on Human Rights, a group funded by the Church of Scientology (SEE CORRECTION) that documents cases such as Plaisted's. ""And the school is still referring children to this guy."
Corpus Christi school administrators said they used Plaisted infrequently for psychological testing of students, although school records and correspondence indicate he was a consultant from 1983 until he was indicted for child sexual assault in late 1992.
School administrators have identified records of five students referred to him for psychological testing between 1985 and 1992. There are no records prior to 1985.
School board President Henry Nuss, who has served on the board for seven years, said he first heard of the Plaisted case when he was contacted by the Houston Chronicle last week.
""We certainly should be more selective in who we're using," he said.
After Plaisted was charged in the Alvarado case in April 1986, Robert J. Garcia, the school district's special education director, wrote to the state psychology board to ask about the psychologist's record. The agency's executive director replied that Plaisted's license had been suspended, but because the psychologist was in the process of suing to get it back, he remained licensed to practice. The letter gave no details about the nature of the complaints.
""He was given a clean bill of health by the only agency that had anything to say about it," said Dr. Adrian Haston, a psychologist who coordinates the school district's psychological services, and who, years ago, shared an office with Plaisted.
Haston emphasized that none of the schoolchildren referred to Plaisted were molested. ""And we never had anything untoward, any problems of that sort," he said.
Asked why the district would risk using a psychologist once accused of being a child molester, Haston replied, ""This is something the district did, and you can ask the director of special education why."
Garcia said in a recent telephone interview that he could not remember whether he knew about the child molestation charges at the time he wrote to the psychology board.
""All I know is we asked for what his status was and they said he could still practice," he said. ""We knew he was under review, but we didn't know what for.
""Look, the state board of psychologists, they're the ones that allowed him to continue to practice," Garcia added angrily.
""If anyone should be asked as to why this guy was allowed to continue, it should be the state board of psychology."
Pressed for further details, Garcia abruptly ended the interview and hung up the phone.
Although Plaisted was acquitted in August 1986 in the Alvarado case, the psychology board continued its investigation and ruled in November of that year that Plaisted had violated professional standards.
The board officially suspended his license for two years, but said he would be allowed to resume his practice in three months.
Meanwhile, Plaisted challenged the suspension in state district court in Austin, arguing the psychology board had unfairly considered allegations that had not been introduced during his hearing, denying him the opportunity to defend himself against them. The judge agreed, and in January 1987 reversed Plaisted's suspension.
While the board was investigating Plaisted's case, they were contacted by Corpus Christi psychologist George Kramer.
Kramer, who had hired Plaisted in 1982 before Plaisted was licensed, told the board to subpoena records of the state Department of Human Resources. It did, and found other instances of alleged molestation by Plaisted.
In April 1989, the board reached an agreement with the psychologist that allowed him to keep his license if he agreed to be supervised for 11/2years. Plaisted was to treat children only in the presence of an associate or in a location where he could be observed by a television monitor. He also was to pay to have Corpus Christi psychologist Joseph Horvat supervise his casework.
Horvat met with Plaisted weekly, but after a year - convinced that Plaisted was doing nothing wrong - he recommended the supervision be terminated six months early. The board decided to continue the supervision.
""I have found no evidence in any way, shape or form of any behavior on his part which could be in any way construed as unprofessional or unethical," Horvat wrote to the board.
Included in one of his reports to the board was a review of Plaisted's treatment of an 8-year-old girl - a child Plaisted was later charged with molesting.
The board's general counsel, Barbara Holthaus, acknowledged past actions taken by the agency were inadequate.
""With hindsight, of course it wasn't appropriate, because look at what happened," Holthaus said. But she said the board has since added lay people to its ranks and has a new, tougher state law giving it better enforcement powers.
""Now, if we get a report that a psychologist is molesting a client, we can go before a judge and say we want to temporarily suspend the license," she said.
Holthaus said the board has filed a motion to revoke Plaisted's license, but Plaisted is fighting it.
""It's all kind of moot, because he's incarcerated," she said.
Soon after Plaisted completed his board-ordered supervision, Corpus Christi police received new information from state child welfare workers that Plaisted had been molesting girls at his office, in church and at home in his hot tub.
Former detective Eric Michalak, who now works in Colorado, remembered taking the Plaisted case to a Nueces County assistant district attorney for prosecution.
""He wanted to get a warrant for the doctor and arrest him, because we had very strong evidence against him," Michalak said. ""We had multiple victims and you had a guy in the position he was in, where he had access to all these victims.
You would want to take quick action rather than let it go on for so long."
The prosecutor was overruled by then-District Attorney Grant Jones, Michalak said. ""(Jones) just said, `We're not getting a warrant. We're taking our time.' He wanted the kids reinterviewed by one of the prosecutors.
""Any time you go after someone like that, there's a lot of politics that come into play," Michalak added. ""Instead of stepping in right then, and bringing it out in the open and taking it to a grand jury (for indictment), they delayed."
Jones contends that any delay in prosecution was an effort ""to tie the case down tight. We didn't want to lose him twice,"
said Jones, on whose watch Plaisted was acquitted in the Alvarado case.
Jones called it ""outrageous" the psychology board still hasn't revoked Plaisted's license.
""They should have done it in 1986," he said. ""What they want to do is wait around until you go to trial and you convict him, and then they come in behind your conviction and revoke his license. Well, what's he doing in the meantime? He could be out in the community molesting kids for two years."
Michalak said the case was finally taken to the grand jury several months later after he leaked the information about Plaisted's investigation to the local media.
""It was taking too long, and it wasn't being handled like another case," he said. ""And it was because he was so prominent in the community."
Plaisted was finally indicted in Corpus Christi in October 1992. He posted bond, closed his practice in Corpus Christi, and negotiated an agreement with the psychology board to place his license on inactive status until he could prove his innocence.
He then moved to Boston, where he enrolled in Boston University Law School and successfully completed his first year of studies by May 1994.
While in law school, Plaisted began calling a former patient - the girl whose treatment Horvat had reviewed in Corpus Christi. Plaisted convinced the girl's mother - who was also a patient of his - to bring the girl to Boston for additional therapy.
Plaisted's plans were foiled when a policeman setting up a speed trap in his neighborhood accidentally intercepted on his police radio a sexually explicit telephone call between the girl and Plaisted, who was using a cordless phone.
FBI agents were called in, six other calls were taped, and Plaisted was arrested on June 3, 1994, after he met the girl, then 13, and her mother at the train station and took them to a budget motel.
""The mother wasn't aware" of the molestations, said Adolfo Aguilo, an assistant Nueces County district attorney. ""The mother had a borderline personality disorder - she developed dependency on people -and unfortunately for her the person she developed a dependency on was Dr. Plaisted."
Sgt. Michael Harpster, a police detective from suburban Boston who helped arrest Plaisted, described him as ""very congenial, almost shy."
""He'd answer questions very courteously, but he didn't show any outward signs of knowing the seriousness of the situation," Harpster said.
Last January, Plaisted was sentenced by a federal judge in Boston to a two-year prison term after he pleaded guilty to transporting a minor across state lines to engage in illegal sexual activity.
The Corpus Christi conviction and sentence came almost a year later.
In the end, Plaisted admitted molesting four victims. But prosecutors say no one will ever know how many others failed to come forward.
""I imagine there could be several other victims. Through his practice and the church he probably had access over the years to thousands of children," said Aguilo, the Corpus Christi prosecutor who eventually secured Plaisted's guilty plea.
""To me, any kid that came in contact with this guy was a victim in some way or another," added Michalak.
When Plaisted was sentenced last month, it was a bitter emotional meeting for many of his young victims and their parents, who had been called as witnesses in case Plaisted decided against the plea bargain.
Parents said Plaisted stood up straight, held his head high and looked the judge in the eye. And when he saw the relatives of his former victims, he acted as if he were attending a reunion of old friends, they said. One parent said Plaisted looked as if he thought they were there as supporters or character witnesses.
""He turned around and gave the families a big smile," Alvarado said. ""I couldn't believe it."
Alvarado, who sued Plaisted in civil court, has received a settlement for an undisclosed amount. Her son, now a teen-ager, is still struggling with his past abuse, she said, and she continues to feel betrayed by those who would not join her in speaking out years ago.
""I told them if they had helped me in the beginning, none of this would have happened," she said.
Plaisted timeline
Key dates in the career of Dr. James R. Plaisted:
January 1983: Licensed to practice psychology in Texas.
October 1984: Investigated by Texas Department of Human Resources for allegedly molesting a neighbor's child.
April 1986: Charged in criminal case for allegedly fondling a boy during therapy.
August 1986: Acquitted by jury in Corpus Christi.
October 1992: Indicted for sexual abuse of three Corpus Christi girls.
December 1992: Closed Corpus Christi office; moved to Boston to begin law school.
June 1994: Arrested by FBI agents for luring a 13-year-old former Corpus Christi patient to Boston.
January 1995: Indicted by Corpus Christi grand jury on three counts of aggravated sexual assault for incidents years earlier involving the same girl.
January 1995: Sentenced to two years in federal prison in Boston case.
Dec. 7, 1995: Sentenced to 40 years in state prison by a Corpus Christi judge after pleading guilty to five counts of aggravated sexual assault of a child.
Did the Caller publish any stories on this matter?
And the CCISD Board did they inform the community?
The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients - even after he had been publicly charged.
CORPUS CHRISTI - James Plaisted was a respected child psychologist, a deacon in one of the city's largest Baptist congregations and the father of four.
He also was a child molester so brazen he escorted little girls into church and fondled them under his coat while listening to the sermon.
Parents knew. So did church pastors, school officials and state regulators. But few did anything to stop him, and those who tried were remarkably unsuccessful.
It took 10 years to get Plaisted behind bars. Only he knows how many children he molested during that time.
Last month, Plaisted - already serving a two-year federal prison term for luring a Texas patient to Boston to continue molesting her -was brought back to Corpus Christi in chains.
He pleaded guilty to sexually assaulting four girls and was sentenced to 40 years in prison.
State regulators have yet to revoke his license to practice psychology.
""I think the Plaisted case is the model of what happens when the system fights with itself," said Susan Snyder, a Kingsville attorney and former prosecutor who tried to lock up Plaisted in 1992.
""Obviously, there have been safeguards in place to prevent this man all along, but either (state officials) were too lazy or too busy, or too scared of the politics of going and yanking this man's license," Snyder said. ""It's not the legal system failing. It's the people within the legal system that refuse to let the legal system work."
It's not as if no one tried.
Carmen Alvarado, the mother of the first child to accuse Plaisted more than 10 years ago, sought criminal charges against the therapist and filed an ethics complaint with the Texas Board of Examiners of Psychologists. She alleged that Plaisted had fondled her son's penis during a late-night counseling session.
Alvarado called the Parkdale Baptist Church, where Plaisted, 46, was a deacon.
""They said they were leaving it in God's hands," she recalled.
""I don't think they were thinking straight at the time."
She went to other parents. She got no help.
In the end, it was just her son's word against Plaisted, who told a Corpus Christi jury in 1986 that the 6-year-old child was a habitual liar and a pyromaniac who derived sexual excitement from setting fires. It didn't help that a new prosecutor was assigned to the case just before trial.
The jury acquitted Plaisted; his practice continued.
""It made me mad because when I went for help, all I asked was for them to testify," Alvarado recalled. ""We lost because my son was the only witness we had."
""It was a very tough call to make," said another victim's mother. ""And looking back, I really should have crucified him, but I didn't. I chose not to after talking to my attorney. He told me it would just really traumatize my daughter."
The Corpus Christi woman, who asked not to be identified, said she did confront Plaisted and his wife, who were neighbors in 1984, when her daughter was allegedly molested while spending the night with one of Plaisted's daughters.
""He did not deny it," she said. ""He said he could have done it
in his sleep."
Plaisted's wife laughingly added that she and her husband often made love at night, and he would not remember the next morning, the woman said.
The woman, who was also a member of the Parkdale Baptist Church, recalled telling church officials later about Plaisted's molestations.
""But it didn't seem to make any difference," she said. ""The church really backed him up, and a lot of people left the church after that."
Plaisted's attorney, Doug Tinker, refused to allow the Chronicle to interview his client. The criminal defense lawyer, who earlier this year represented Yolanda Saldivar, who was convicted of murdering Tejano star Selena, declined to discuss the Plaisted case.
The victims' families have since sued the church for negligence, but Parkdale's lawyer argues the congregation should not be held responsible for Plaisted's actions.
""It would be the church's wish to get this thing resolved without causing any additional hurt to anyone," said attorney Van Huseman. But he added, ""If a child gets molested in the middle of the service, how does that get to be the pastor's fault?"
Plaisted - a Nebraska native who served in the Army in Vietnam -came to Corpus Christi in 1982 with impeccable credentials, having earned his doctorate in clinical and child psychology from Auburn University in Alabama in 1981.
He quickly built a private practice, and over the years, developed a good reputation as an expert on brain dysfunction.
The Corpus Christi school district, along with local pediatricians, eagerly supplied him with young patients - even after he had been publicly charged. Members of the church also sought his help, and he had hospital privileges at the prestigious Driscoll Children's Hospital, a South Texas institution known both for quality care and charity.
Neighbors described Plaisted as pleasant, reserved, well-spoken. He was methodical, they said, and liked to work on projects around the house.
Plaisted recruited some of his victims from broken homes, showering the children with gifts, inviting them and their parents to Thanksgiving dinners. One 9-year-old girl who spent the night with Plaisted's daughter told prosecutors the psychologist molested her on the sofa in his living room while he and the children watched the movie "Home Alone"
on video.
He curried favor with his victims' parents by lending them money and refusing repayment, or by buying them air conditioners and other gifts. One mother even acted as a character witness for the therapist during the Alvarado trial, unaware that her own child was being molested.
""The bottom line is this guy had complaints filed against him at the psychology board - and they are serious - and the board doesn't notify the school about the complaints," said Jerry Boswell, director of the Citizens Commission on Human Rights, a group funded by the Church of Scientology (SEE CORRECTION) that documents cases such as Plaisted's. ""And the school is still referring children to this guy."
Corpus Christi school administrators said they used Plaisted infrequently for psychological testing of students, although school records and correspondence indicate he was a consultant from 1983 until he was indicted for child sexual assault in late 1992.
School administrators have identified records of five students referred to him for psychological testing between 1985 and 1992. There are no records prior to 1985.
School board President Henry Nuss, who has served on the board for seven years, said he first heard of the Plaisted case when he was contacted by the Houston Chronicle last week.
""We certainly should be more selective in who we're using," he said.
After Plaisted was charged in the Alvarado case in April 1986, Robert J. Garcia, the school district's special education director, wrote to the state psychology board to ask about the psychologist's record. The agency's executive director replied that Plaisted's license had been suspended, but because the psychologist was in the process of suing to get it back, he remained licensed to practice. The letter gave no details about the nature of the complaints.
""He was given a clean bill of health by the only agency that had anything to say about it," said Dr. Adrian Haston, a psychologist who coordinates the school district's psychological services, and who, years ago, shared an office with Plaisted.
Haston emphasized that none of the schoolchildren referred to Plaisted were molested. ""And we never had anything untoward, any problems of that sort," he said.
Asked why the district would risk using a psychologist once accused of being a child molester, Haston replied, ""This is something the district did, and you can ask the director of special education why."
Garcia said in a recent telephone interview that he could not remember whether he knew about the child molestation charges at the time he wrote to the psychology board.
""All I know is we asked for what his status was and they said he could still practice," he said. ""We knew he was under review, but we didn't know what for.
""Look, the state board of psychologists, they're the ones that allowed him to continue to practice," Garcia added angrily.
""If anyone should be asked as to why this guy was allowed to continue, it should be the state board of psychology."
Pressed for further details, Garcia abruptly ended the interview and hung up the phone.
Although Plaisted was acquitted in August 1986 in the Alvarado case, the psychology board continued its investigation and ruled in November of that year that Plaisted had violated professional standards.
The board officially suspended his license for two years, but said he would be allowed to resume his practice in three months.
Meanwhile, Plaisted challenged the suspension in state district court in Austin, arguing the psychology board had unfairly considered allegations that had not been introduced during his hearing, denying him the opportunity to defend himself against them. The judge agreed, and in January 1987 reversed Plaisted's suspension.
While the board was investigating Plaisted's case, they were contacted by Corpus Christi psychologist George Kramer.
Kramer, who had hired Plaisted in 1982 before Plaisted was licensed, told the board to subpoena records of the state Department of Human Resources. It did, and found other instances of alleged molestation by Plaisted.
In April 1989, the board reached an agreement with the psychologist that allowed him to keep his license if he agreed to be supervised for 11/2years. Plaisted was to treat children only in the presence of an associate or in a location where he could be observed by a television monitor. He also was to pay to have Corpus Christi psychologist Joseph Horvat supervise his casework.
Horvat met with Plaisted weekly, but after a year - convinced that Plaisted was doing nothing wrong - he recommended the supervision be terminated six months early. The board decided to continue the supervision.
""I have found no evidence in any way, shape or form of any behavior on his part which could be in any way construed as unprofessional or unethical," Horvat wrote to the board.
Included in one of his reports to the board was a review of Plaisted's treatment of an 8-year-old girl - a child Plaisted was later charged with molesting.
The board's general counsel, Barbara Holthaus, acknowledged past actions taken by the agency were inadequate.
""With hindsight, of course it wasn't appropriate, because look at what happened," Holthaus said. But she said the board has since added lay people to its ranks and has a new, tougher state law giving it better enforcement powers.
""Now, if we get a report that a psychologist is molesting a client, we can go before a judge and say we want to temporarily suspend the license," she said.
Holthaus said the board has filed a motion to revoke Plaisted's license, but Plaisted is fighting it.
""It's all kind of moot, because he's incarcerated," she said.
Soon after Plaisted completed his board-ordered supervision, Corpus Christi police received new information from state child welfare workers that Plaisted had been molesting girls at his office, in church and at home in his hot tub.
Former detective Eric Michalak, who now works in Colorado, remembered taking the Plaisted case to a Nueces County assistant district attorney for prosecution.
""He wanted to get a warrant for the doctor and arrest him, because we had very strong evidence against him," Michalak said. ""We had multiple victims and you had a guy in the position he was in, where he had access to all these victims.
You would want to take quick action rather than let it go on for so long."
The prosecutor was overruled by then-District Attorney Grant Jones, Michalak said. ""(Jones) just said, `We're not getting a warrant. We're taking our time.' He wanted the kids reinterviewed by one of the prosecutors.
""Any time you go after someone like that, there's a lot of politics that come into play," Michalak added. ""Instead of stepping in right then, and bringing it out in the open and taking it to a grand jury (for indictment), they delayed."
Jones contends that any delay in prosecution was an effort ""to tie the case down tight. We didn't want to lose him twice,"
said Jones, on whose watch Plaisted was acquitted in the Alvarado case.
Jones called it ""outrageous" the psychology board still hasn't revoked Plaisted's license.
""They should have done it in 1986," he said. ""What they want to do is wait around until you go to trial and you convict him, and then they come in behind your conviction and revoke his license. Well, what's he doing in the meantime? He could be out in the community molesting kids for two years."
Michalak said the case was finally taken to the grand jury several months later after he leaked the information about Plaisted's investigation to the local media.
""It was taking too long, and it wasn't being handled like another case," he said. ""And it was because he was so prominent in the community."
Plaisted was finally indicted in Corpus Christi in October 1992. He posted bond, closed his practice in Corpus Christi, and negotiated an agreement with the psychology board to place his license on inactive status until he could prove his innocence.
He then moved to Boston, where he enrolled in Boston University Law School and successfully completed his first year of studies by May 1994.
While in law school, Plaisted began calling a former patient - the girl whose treatment Horvat had reviewed in Corpus Christi. Plaisted convinced the girl's mother - who was also a patient of his - to bring the girl to Boston for additional therapy.
Plaisted's plans were foiled when a policeman setting up a speed trap in his neighborhood accidentally intercepted on his police radio a sexually explicit telephone call between the girl and Plaisted, who was using a cordless phone.
FBI agents were called in, six other calls were taped, and Plaisted was arrested on June 3, 1994, after he met the girl, then 13, and her mother at the train station and took them to a budget motel.
""The mother wasn't aware" of the molestations, said Adolfo Aguilo, an assistant Nueces County district attorney. ""The mother had a borderline personality disorder - she developed dependency on people -and unfortunately for her the person she developed a dependency on was Dr. Plaisted."
Sgt. Michael Harpster, a police detective from suburban Boston who helped arrest Plaisted, described him as ""very congenial, almost shy."
""He'd answer questions very courteously, but he didn't show any outward signs of knowing the seriousness of the situation," Harpster said.
Last January, Plaisted was sentenced by a federal judge in Boston to a two-year prison term after he pleaded guilty to transporting a minor across state lines to engage in illegal sexual activity.
The Corpus Christi conviction and sentence came almost a year later.
In the end, Plaisted admitted molesting four victims. But prosecutors say no one will ever know how many others failed to come forward.
""I imagine there could be several other victims. Through his practice and the church he probably had access over the years to thousands of children," said Aguilo, the Corpus Christi prosecutor who eventually secured Plaisted's guilty plea.
""To me, any kid that came in contact with this guy was a victim in some way or another," added Michalak.
When Plaisted was sentenced last month, it was a bitter emotional meeting for many of his young victims and their parents, who had been called as witnesses in case Plaisted decided against the plea bargain.
Parents said Plaisted stood up straight, held his head high and looked the judge in the eye. And when he saw the relatives of his former victims, he acted as if he were attending a reunion of old friends, they said. One parent said Plaisted looked as if he thought they were there as supporters or character witnesses.
""He turned around and gave the families a big smile," Alvarado said. ""I couldn't believe it."
Alvarado, who sued Plaisted in civil court, has received a settlement for an undisclosed amount. Her son, now a teen-ager, is still struggling with his past abuse, she said, and she continues to feel betrayed by those who would not join her in speaking out years ago.
""I told them if they had helped me in the beginning, none of this would have happened," she said.
Plaisted timeline
Key dates in the career of Dr. James R. Plaisted:
January 1983: Licensed to practice psychology in Texas.
October 1984: Investigated by Texas Department of Human Resources for allegedly molesting a neighbor's child.
April 1986: Charged in criminal case for allegedly fondling a boy during therapy.
August 1986: Acquitted by jury in Corpus Christi.
October 1992: Indicted for sexual abuse of three Corpus Christi girls.
December 1992: Closed Corpus Christi office; moved to Boston to begin law school.
June 1994: Arrested by FBI agents for luring a 13-year-old former Corpus Christi patient to Boston.
January 1995: Indicted by Corpus Christi grand jury on three counts of aggravated sexual assault for incidents years earlier involving the same girl.
January 1995: Sentenced to two years in federal prison in Boston case.
Dec. 7, 1995: Sentenced to 40 years in state prison by a Corpus Christi judge after pleading guilty to five counts of aggravated sexual assault of a child.
Monday, July 2, 2007
The Kenedy Pasture Company: A Civil Action in the Making?
The Kenedy Pasture Company: A Civil Action in the Making?
What do we want?
Go do some homework, we want responsive representation with transparent operation.
We want to not be railroaded for tardies or for absences when the District does not practice due diligence in interdicting but is very diligent in recording the events and adamantly prosecutes and collects half of the fine. When the people cant pay the kids are picked up from class and taken in handcuffs to the court of nonrecord. The Parent is contacted and ordered to appear immediately. When the Parent arrives he or she is told to pay or your kid goes to jail and sometimes the parent is threatened and / or locked up as well. I have never seen a kid who has been provided counsel but I have witnessed many a kid go to jail.
And this from non responsive legislators who have enabled the School Administration to blame the parent when they allow children in their custody to roam at large unaccounted for and the District in coordination with the Courts of non record get paid (profit) from it.
2007-07-02
A Civil Action in the Making?
Why must we flex our muscles?
Nueces County, CCISD, 105th Judicial District Attorney; how many kids were locked up without an attorney?
- There is no excuse for violating the basic human rights afforded under the United States Constitution.
- How many kids were locked up by a court of nonrecord?
- Not even with a parent's consent unless the parent has been given the opportunity to consult with counsel.
- How many children taken into custody were advised of their Miranda Rights?
- Oh yeah, Plaisted and every CCISD kid for whom, he provided service
What do we want?
Go do some homework, we want responsive representation with transparent operation.
We want to not be railroaded for tardies or for absences when the District does not practice due diligence in interdicting but is very diligent in recording the events and adamantly prosecutes and collects half of the fine. When the people cant pay the kids are picked up from class and taken in handcuffs to the court of nonrecord. The Parent is contacted and ordered to appear immediately. When the Parent arrives he or she is told to pay or your kid goes to jail and sometimes the parent is threatened and / or locked up as well. I have never seen a kid who has been provided counsel but I have witnessed many a kid go to jail.
And this from non responsive legislators who have enabled the School Administration to blame the parent when they allow children in their custody to roam at large unaccounted for and the District in coordination with the Courts of non record get paid (profit) from it.
2007-07-01
"Court Appointed Rolodex's". Nanotechnology and "Confessing Error" in a dog and pony show who operate like they are in a Kangaroo Court.
Nanotechnology at work right before our eyes finally an acknowledgment of what has been going on for quite a while now. The information in those "Court Appointed Rolodex's", there is gold in them hills. And this is going to start becoming available when? and for who? We have came to a narrowing of the road here in this alligning of energy fields. I can see it now we got Mikal who who is the adversary of my adversary John Cornyn. We also have the Honorable Judge Manuel Banales who needs to align with Mr Watts and vice versa. Does he want run for mayor unopposed? I would rather see him correct the errors and run for Governor or Ascend to the Texas Supreme Court. Now, John Cornyn has "Confessed Error" and I assure you it wasn't out of fairness but in the essence of knocking the checkers off of the Table because he was going to lose. And Carlos Valdez & John Hubert "Confess Error" on appeal from the 105th. Hubert & Valdez "confess error" so they can conceal Mary Cano. And that is as painless as it gets.
Anton
CCCT Political PulseMikal Watts seeks to round up list of Democrats for self, others
By Jaime PowellA Monday noontime fundraiser at Vietnam restaurant for U.S. Senate hopeful Mikal Watts was a who's who of the local bar association and judiciary, including five district judges. Watts, who is living in San Antonio, told the crowd that "nobody knows Mikal Watts better than Corpus Christi."
Watts, a Democrat, who is seeking the seat held by Republican Sen. John Cornyn, asked the gathering to dig through their Rolodexes and e-mail address lists because he hopes to compile a statewide database to reach Democratic voters that can be used by all Texas Democrats.
"That way, when Judge (J. Manuel) Bañales runs for mayor he can use it," Watts joked, to uproarious laughter from the crowd and a big grin from Bañales, who was sitting on the front row.
2007-06-30
If you need an attorney.....if he is any good he will tell you watt an "Ander's Appeal" is? If he tells you not to worry about it.........FIRE HIM !!!
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