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http://nctimes.com/articles/2008/02/12/ … _11_08.txt

Lawsuit challenges state special education hearings



By: SCOTT MARSHALL - Staff Writer
Fallbrook family seeks court order barring Office of Administrative Hearings from deciding cases

SAN DIEGO -- A federal class-action lawsuit filed last week on behalf of a Fallbrook family alleges that state officials who decide disputes between parents and school districts over special education services are unqualified, inadequately trained and side with districts too often.

The lawsuit asks the U.S. District Court to prohibit the California Department of Education from renewing its $29 million contract with the state's Office of Administrative Hearings to provide mediation and due process hearings to resolve conflicts between school districts and parents. The current contract expires in June.

Spokespersons for the state education department and the Office of Administrative Hearings said Monday that their agencies declined to comment on the lawsuit.

The federal Individuals with Disabilities Education Act requires schools that receive federal funding to provide a "free appropriate public education" to children with disabilities. Parents and students who believe they are not receiving such an education can file a complaint with the state and have a due process hearing.

The nonprofit organization Team of Advocates for Special Kids, which is not involved with the lawsuit, provides information and training for parents of special education children about their rights and responsibilities.

Jennifer Ruiz, a parent advocate at the San Diego office of Team of Advocates for Special Kids, said asking for and going through a due process hearing is "always really hard" emotionally and financially on parents.

School districts and parents may disagree about what is appropriate for the student, and the children may be failing, becoming depressed or exhibiting behavior such as aggression, Ruiz said. While a due process hearing is pending, the child has to remain in the same school setting and may continue to fall behind or show other behaviors, leaving a parent feeling "helpless," Ruiz said.

Ruiz said she and other parent advocates have heard parents question whether the administrative judges know enough about the law to render a fair decision, but said the advocates rarely hear from parents after a decision has been made.

The lawsuit alleges that since the Office of Administrative Hearings began conducting the due process hearings in 2005, administrative law judges have ruled completely in favor of students in only 10 percent of the 279 hearings that occurred by Sept. 30, 2007. However, the McGeorge School of Law Special Education Hearing Office, which conducted the hearings for the state before 2005, ruled in favor of students about 50 percent of the time, the lawsuit alleges.

"They side with the school district all the time," Ellen Dowd, the Del Mar-based attorney who filed the lawsuit, said of the current administrative judges. "They don't know the law."

The lawsuit alleges administrative judges have issued written decisions "that are contrary to law, unduly favorable to school districts, and which deny a free appropriate public education to disabled students."

The lawsuit alleges a lack of oversight and management from the state education department has contributed to the alleged problems.

State officials did not want to give the contract for due process hearings to the Office of Administrative Hearings in 2005 but did so because of a California Supreme Court decision that year that said the state had to award contracts to civil servants instead of private contractors, the lawsuit alleges.

A different state Supreme Court decision last year eliminated that requirement, the lawsuit alleges.