CDCAN
CALIFORNIA DISABILITY COMMUNITY ACTION
NETWORK
DISABILITY RIGHTS NEWS REPORT
#001-2006
January 3, 2006 Tuesday
Connecting people with disabilities &
seniors to rights
and unified action
1225 8th Street Suite
480 - Sacramento, CA 95814 916/446-0013 Fax: 916/446-0026
Marty Omoto - director
email: martyomoto@rcip.com
website: www.cdcan.us
Special Education Mediation Lawsuit
*Judge Refuses To Temporarily Block New Special Ed Mediation System
*Says Court Has "No Power" To Force State To Contract with Law School
*Case Can Continue For Regular Hearing - Clear Setback For Advocates
SACRAMENTO - Citing that the State would face "irreparable"
harm if a delay was imposed, Sacramento County Superior Court Judge
Thomas M. Cecil refused a request by parents of special education
children and other advocates to temporarily block the State from
implementing a new special education mediation system, that officially
took effect January 1. The judge issued the order without hearing this
afternoon in Sacramento (January 3). The Judge also denied another
request of the parents and advocates who filed the lawsuit against the
California Department of Education, saying in his order that "the Court
has no such power" to compel the State to contract with the University
of Pacific McGeorge School of Law in Sacramento to continue the
mediation system it ran for nearly a decade. The lawsuit however,
despite the denial of the temporary orders requested by the parents and
other advocates, can continue. The order by the Judge however was a
clear setback for supporters of the lawsuit. [CDCAN note: The case number is
05AS05621 and a copy of the lawsuit is on the CDCAN website at
www.cdcan.us.
The lawsuit named Superintendent
of Public Instruction Jack O'Connell, a Democrat and the elected
official who heads the state's
Department of Education, as the main defendant. ]
At issue in the lawsuit is how California
implements special education fair hearings including cases that can be
resolved using mediation, impacting thousands of children in special
education. About 11% of the state's total kindergarten through 12th
grade students or nearly 700,000 students ages 22 years old and under
are in California's special education program - the largest in the
nation.
The lawsuit wanted to stop at least
temporarily, the California Department of Education from
ending on January 1, 2006, the special education mediation system used
by California for over a decade and run by the University of the
Pacific's McGeorge School of Law. The State wants to turn the
mediation system over to the state Office of Administrative Hearings.
Advocates claim that
the State has failed to implement a transition that would not harm
thousands of special education children.
Advocates also claimed in their lawsuit that they have met
with Department of Education officials for several months to address
concerns regarding mediation without any success. The Department of
Education disputes those claims.
Department of Education attorneys talked with attorneys for the
California Association for Parent-Child Advocacy, who were both present
outside the courtroom to pick up copies of the judge's order, asking
about working toward next steps. Advocates with the California
Disability Community Action Network were present to pick up the written
order (and to originally attend the hearing) but did not particpate in
the discussions. It was not known what next steps either side will
take in the aftermath of the Judge's order this afternoon.
JUDGE CECIL'S ORDER:
"The requests for a TRO and an OSC re Preliminary Injunction are
DENIED. To obtain such relief, it must appear likely that moving party
will prevail on the merits and, in the absence of the requested relief,
will suffer irreparable harm. The Motion fails on both scores. Moving
party asks the Court to compel the State to contract with McGeorge
School of Law. The Court has no such power. The Defendant has put forth
evidence that a gap in coverage puts the State at risk as to federal
dollars. Under the circumstances, it is the State (and the clients it
serves) who would suffer irreparable injury if the Court granted the ex
parte application. Moving parties are directed to proceed by regularly
noticed motion. With the recusal of Judge McMaster, this matter is now
properly before Department 54. As of this date, the regularly assigned
Judge in Department 54 is Judge Shellyanne Chang. "
Thomas M. Cecil
Judge of the Superior Court
Superior Court of California, County of Sacramento
Notes about the Judge's order:
* TRO means "temporary restraining order". OSC means "order to show
cause" and both are requests by those who filed the lawsuit that asked
the Judge to issue a temporary emergency order to stop the State from
moving forward with its new special education mediation system and to
continue - until the case is resolved, the current system that was run
by McGeorge School of Law.
* "Moving party" are the plaintiffs or the persons and organizations
who filed the lawsuit, in this case, the California Association for
Parent-Child Advocacy and Protection and Advocacy, Inc and 4 other
advocates.
* The "Defendants" are Superintendent of Public Instruction Jack
O'Connell, a former Democratic state legislator and the Department of
Education which he heads. O'Connell, as a
state senator, was the author of
the controversial California High School Exit Exam, that was the
subject of a different lawsuit filed on behalf of special education
students. The Department of Education last August agreed to settle the
case and allow for a one year exemption for students with special
needs. Legislation to implement that agreement (SB 586) was vetoed by
the Governor because it called for a two year exemption - something
that O'Connell also opposed. Advocates and the legislature are
attempting to resolve the issue when the Legislature returns this week.
* "Recusal" means that this Judge excused himself/herself from the case
due to a possible conflict. In this particular lawsuit, Judge
McMasters felt there was a possible conflict because he previously, as
a private attorney, represented some state employee groups.
* "Department 54" is the court within the
Superior Court that this case is now assigned.
Background of Special Education
Due Process and Mediations
* For the past decade and more the the Department of Education complied
with state and federal special education laws regarding mediation and
the system for due process by contracting with the University of
Pacific's McGeorge School of Law to operate the "California Special
Education Hearing Office" - which is slated by the Department of
Education to be closed down after December 31, 2005
* According to the Department of Education data and also the lawsuit,
historically there have been about 3 due process filing per 10,000
students in special education - a rate, according to the lawsuit, that
is lower than the national average.
* Approximately 2,000 cases were filed in each of the past several
years, with the McGeorge School of Law's Special Education Hearing
Office managing these cases with one group of individuals trained as
hearing officers to handle cases requiring a hearing and another group
of individuals trained in mediation, to handle those cases that can be
resolved through mediation.
* In June of this past year, the Department of Education announced that
it would end its relationship with McGeorge School of Law and would
instead contract with the state Office of Administrative Hearings to
handle special education due process cases, including mediation. The
Department of Education did allow the McGeorge School of Law's Special
Education Hearing Office to continue to handle mediation cases through
at least December 31, 2005.
* Contracting non-state employees versus using state employees for
state work, as mentioned earlier, has been a controversial union issue
for several years in other state departments, including professional
engineers and other areas. Attorneys for the Department of Education
and some state employee groups say the
Department of Education was compelled to end its contract with McGeorge
School of Law - a private university, because of previous legal and
regulatory decisions that require
that state agencies generally must employ state workers to do
state work. Those representatives cite a March 2005 administrative law
judge ruling on the specific issue of McGeorge Law School and special
education mediation.
Advocates Claim State Has Failed To Put Together Transition Plan
* As previously reported, advocates claim that the change in the
mediation system and the failure of the State to put together an
orderly transition plan would take away rights of thousands of
special education students and their families protected under state and
federal laws.
* They also pointed out that mediation is a different
form of resolving disputes and requires a different type of training
and criticized the Department of Education's plan to have
administrative hearing officers instead handle that function.
* They claim that the new mediation plan by the Department of Education
is unfair to families, who they believe will lose fair hearing rights
because administrative hearing officers who decide contested due
process special education cases would also serve as mediators creating
potential conflicts of interest.
* The Department of Education has in recent months disputed those
claims and says that the previous mediation system by McGeorge School
of Law is closed down now, with files boxed and staff leaving or
gone and the new system, to be handled by the state Office of
Administrative Hearings now, with the official date of implementation,
January 1, now passed.
What Lawsuit Is Asking the Court To Do
Families have the right under the federal Individuals with Disabilities
Education Act, to appeal decisions made by their local school district
regarding the education of their children in special education. The
lawsuit filed by advocates December 20 deals with how the State of
California carries out its system of special education due process and
mediation. The plaintiffs - parent advocates represented by the
California Association for Parent-Child Advocacy and also Protection
and Advocacy Inc. and 4 individuals, are asking the Superior Court,
besides the temporary order to stop implementation to do the following:
1. Requests that the Superior Court to issue a temporary order - and
later a permanent order (or injunction) to stop the California
Department of Education from moving special education mediation cases,
filed prior to January 1, 2006, to the state Office of Administrative
Hearings (OAH).
STATUS: Denied by Judge Cecil January 3,
2006.
2. Requests that the Court issue a judgment that
the Superintendent of
Public Instruction Jack O'Connell and the Department of Education has
not adopted regulations in "the manner required by law" and a
temporary and permanent court order that they "not implement,
enforce or apply rules and policies or regulations that have not been
lawfully adopted."
STATUS: No action taken by Judge on
01/03/06. Court can decide this issue in a regularly scheduled court
hearing if case proceeds
3. Requests the the Court issue a judgment that the
Department of
Education have "not put in place a mediation system that is in
conformity with the purpose and intent" of the state and federal
changes to the special education law, known as the Individuals with
Disabilities Education Act (IDEA), and that the Court issue an order
(or injunction) that would stop the Department of Education from
forcing mediations into the Office of Administrative Hearings as
planned to go into effect January 1, 2006.
STATUS: No action taken by Judge on 01/03/06. Court can decide
this issue in a regularly scheduled court hearing if case proceeds
4. Requests that the Court issue an order (or injunction) stopping the
Department of Education from moving special education mediations to the
Office of Administrative Hearings and from "operating a due process
system on rules, policies and regulations that have not been lawfully
adopted".
STATUS: No action taken by Judge on
01/03/06. Court can decide this issue in a regularly scheduled court
hearing if case proceeds
Next Steps and Impact
* With the Court denying the request for a temporary order to stop the
State from moving forward with its new mediation system, the Department
of Education can continue the change in systems that now places the
state Office of Administrative Hearings in charge, with the contract
with McGeorge School of Law officially expiring at 12 midnight on the
evening of December 31, 2005.
* The case can continue if those who filed the lawsuit (plaintiffs)
wish to push it forward in a regular court hearing in the coming weeks
or they can decide to try to appeal the Judge's order - though such
appeals in cases like these are rarely successful. However the State
can continue implementing the new mediation system until and if the
case is resolved. Those who filed the lawsuit can withdraw their suit,
or work toward a settlement with the Department of Education, or change
or add new parts to the lawsuit.
* Advocates, including the California Association for Parent-Child
Advocacy are mobilizing a massive statewide effort to write letters and
make phone calls to state legislators and members of both legislative
education committees urging them to intervene.
* The California Disability Community Action Network (CDCAN) will hold
a CDCAN Disability Rights Townhall Telemeeting on the issue to create
an opportunity for families with children with disabilities and mental
health needs in special education and other advocates to hear more
information and have opportunity for a full discussion of the different
viewpoints of the issue in the coming weeks. See separate CDCAN
advisory and alert or check the CDCAN website at www.cdcan.us
* The California Legislature returns back in session on January 4 and
there currently is no legislation pending dealing with this issue.
There is a possibility that legislation could be introduced to address
this specific issue and other related special education issues.
How To Receive CDCAN Capitol News Reports and Alerts
The California Disability Community Action Network is a
non-partisan link to thousands of Californians with developmental and
other disabilities, people with traumatic brain and other injures,
seniors and their families, community organizations and providers,
direct care and other workers, and other advocates. These action alerts
and news reports is for all of them. If you would like to get on this
distribution (and conversely, get off of it) please send an email with
that request to: martyomoto@rcip.com OR sign up
via the NEW CDCAN
website at www.cdcan.us Sharing information is
part of our organizing
effort. Please feel free to forward or copy this (attribution is
nice). We're all in this together!