1. A Year in Review
ACSA 2014 Every Child Counts Symposium
January 15-17, 2014
Presented by:
Adam Newman, Senior Partner
Sundee Johnson, Partner
Jennifer Fain, Partner
Cerritos
•
Fresno
•
Irvine
•
Pleasanton
•
Riverside
•
Sacramento
•
San Diego

2. Cerritos Office
12800 Center Court Drive
Suite 300
Cerritos, California 90703
(562) 653-3200
(562) 653-3333
www.aalrr.com
Phone
Fax
Irvine Office
20 Pacifica, Suite 400
Irvine, California 92618
(949) 453-4260
(949) 453-4262
Phone
Fax
ADAM J. NEWMAN
Senior Partner
anewman@aalrr.com
Education Law
Experience
Adam Newman is a senior partner in the Cerritos and Irvine offices of Atkinson, Andelson, Loya,
Ruud & Romo. Mr. Newman is co-chair of the firm’s state-wide Special Education Practice
Group. Mr. Newman has many years of experience advising and representing public school
districts, SELPAs and county offices of education in all aspects of special education, Section
504, student discipline and general student matters. Mr. Newman also serves as legal advisor to
administrative hearing panels in student expulsion cases. Mr. Newman is an active presenter,
conducting approximately 25-40 presentations per year for public school agencies and
organizations such as CSBA, ACSA, CASCWA, etc.
Mr. Newman began his legal career in 1993 as a Deputy City Attorney for the City of Huntington
Beach. In that capacity, Mr. Newman’s practice was devoted to employment litigation,
administrative hearings and defense of unfair labor practices under California’s public sector
collective bargaining law. Mr. Newman succeeded in the Court of Appeal regarding collective
bargaining management rights and retirement issues.
In 2005 and 2006 Mr. Newman was named a "Southern California Rising Star" by Law & Politics
and Los Angeles Magazine, based on the top 2.5% of a poll of selected Southern California
lawyers. This recognition honors exceptional Southern California attorneys who are under the
age of 40.
Education
Mr. Newman received his Bachelor of Arts degree from the University of California, Irvine, and
his Juris Doctor from the University of the Pacific, McGeorge School of Law.
Admission
1993, California
Memberships
State Bar of California
Publications and Speaking Engagements
Mr. Newman is an active contributor to the firm’s various newsletters and publications.
Cerritos
•
Fresno
•
Irvine
•
Pleasanton
•
Riverside
•
Sacramento
•
San Diego

3. Cerritos Office
12800 Center Court Drive
Suite 300
Cerritos, California 90703
(562) 653-3200
(562) 653-3333
www.aalrr.com
Phone
Fax
SUNDEE M. JOHNSON
Partner
sjohnson@aalrr.com
Education Law
Experience
Sundee Johnson is a partner in the Cerritos, Irvine and San Diego offices of Atkinson,
Andelson, Loya, Ruud & Romo. Ms. Johnson represents California school and community
college districts in education law, including disability accommodation, special education,
student discipline, and charter school matters. She also handles and/or litigates special
education due process hearings, Section 504 complaints, CDE compliance complaints, and
discrimination claims.
Ms. Johnson conducts investigations into allegations of discrimination and misconduct. She
is also a frequent trainer and speaks on a wide range of issues affecting California public
schools.
Since 2009, Ms. Johnson has been named a "Southern California Rising Star," and in 2013,
Ms. Johnson was added to the list of “Top Women Attorneys in Southern California,” by
Super Lawyers, a national rating service of exceptional lawyers and based on a poll of
selected Southern California lawyers.
Education
Ms. Johnson received her Bachelor of Arts degree in Psychology from the University of
Washington and her Juris Doctor from Pepperdine University School of Law.
Admissions
2003, California
Memberships
State Bar of California
Publications and Speaking Engagements
Ms. Johnson is an active contributor to the firm’s various newsletters and publications.
Ms. Johnson frequently presents at workshops and provides training to districts.
Cerritos
•
Fresno
•
Irvine
•
Pleasanton
•
Riverside
•
Sacramento
•
San Diego

4. Pleasanton Office
5075 Hopyard Road
Suite 210
Pleasanton, California 94588
(925) 227-9200
(925) 227-9202
www.aalrr.com
Phone
Fax
JENNIFER R. FAIN
Partner
jfain@aalrr.com
Education Law | Special Education
Section 504 | Student Issues
Experience
Jennifer Fain is a partner in the Pleasanton office of Atkinson, Andelson, Loya, Ruud &
Romo. Her practice focuses on representing educational agencies in the areas of special
education and anti-discrimination. Ms. Fain’s experience includes the successful
representation of school agencies at every stage of the litigation process, including
mediation sessions, administrative hearings, and federal court proceedings.
In addition to handling matters in litigation, Ms. Fain also works with clients proactively to
develop preventive practices to help avoid costly disputes, including reviewing current
policies, practices, and procedures for systemic issues and legal compliance. To further
assist clients in avoiding litigation, she offers in-service trainings for school personnel on a
variety of issues relating to special education and disability law. She also has spoken at
both state and national levels on special education legal issues.
Prior to joining Atkinson, Andelson, Loya, Ruud & Romo, Ms. Fain was a partner at The
Weatherly Law Firm where, for eleven years, she represented educational agencies across
the country in all facets of special education and anti-discrimination law.
Education
Ms. Fain received her Bachelor of Arts degree magna cum laude from Emory University,
and her Juris Doctor, cum laude from the University of Georgia.
Admissions
2000, Georgia
2005, California
Cerritos
•
Fresno
•
Irvine
•
Pleasanton
•
Riverside
•
Sacramento
•
San Diego

5. A Year in Review
A Year in Review
ACSA 2014 Every Child Counts Symposium
January 15-17, 2014
Presented by:
Adam Newman, Senior Partner
Sundee Johnson, Partner
Jennifer Fain, Partner
Cerritos
•
Fresno
•
Irvine
•
Pleasanton
•
Riverside Cerritos • Fresno • Irvine •San Diego • Pleasanton • Sacramento • San Diego
• Sacramento •
Riverside
Agenda
• US Supreme Court Update
• Ninth Circuit Cases
• District Court Cases
• California Supreme Court Cases
• OAH Decision
• Legislation
1
Federal Court Hierarchy
US Supreme Court
Ninth Circuit
District Court
2
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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6. A Year in Review
US Supreme Court
3
US Supreme Court Update
The court declined to hear three special
education cases:
• Ebonie S. v. Pueblo School District
• Klein Ind. School District v. Hovem
• R.E. v. NYC Department of Education
4
Ninth Circuit Cases
5
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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7. A Year in Review
Ninth Circuit Cases
Walhovd v. Bellflower Unified School District
District appealed two issues:
1. District court’s decision, which reversed part of
ALJ’s decision
2. Award of $57,231.25 in attorney’s fees
6
Ninth Circuit Cases
Walhovd
District lost on both issues:
1.
Failure to timely appeal
2.
Student was a “prevailing party”
and therefore entitled to fees
7
Ninth Circuit Cases
Doug C. v. State of Hawaii Department of Ed
• Parent was unable to
attend an IEP meeting
due to illness
• Student’s annual IEP
deadline was in four days
8
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8. A Year in Review
Ninth Circuit Cases
Doug C.
• The ED went forward with the annual
• Student’s placement was changed from a
private special education facility to a
program at a public high school
9
Ninth Circuit Cases
Doug C.
Parental involvement in the “creation process”
requires the LEA to include the parents in an IEP
meeting, unless they affirmatively refused to attend.
10
Ninth Circuit Cases
Doug C.
After the fact,
parental involvement
is NOT enough.
11
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9. A Year in Review
Ninth Circuit Cases
K.M. v. Tustin Unified School District
Compliance with the IDEA does not necessarily
establish compliance under Title II of the ADA
with respect to a school district’s effective
communication obligations to a student.
12
Ninth Circuit Cases
K.M.
Compliance
with IDEA
Compliance
with ADA
13
Ninth Circuit Cases
K.M.
IDEA
ADA
“Modest”
Substantive
Requirements
“Primary
Consideration”
Given to
Student’s
Communication
Preferences
14
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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10. A Year in Review
Ninth Circuit Cases
A.D. v. State of Hawaii Department of Ed
Student was entitled to remain in his
educational placement under “stay-put”
during the pendency of his complaint even
though he was no longer eligible.
15
Ninth Circuit Cases
A.D.
•
20-year-old student filed six weeks prior to
the end of the 2010-2011 school year
•
Student challenged state law terminating his
eligibility at the end of the school year
•
Moved for stay-put in January 2012
•
Turned 22 in May 2013
16
Ninth Circuit Cases
A.D.
• Stay-put order is immediately appealable
Compare: M.M. v. Lafayette School District
9th Cir. Decision in June 2012
• Stay-put “preserves the student’s eligibility
until the dispute is resolved”
17
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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11. A Year in Review
District Court Cases
18
District Court Cases
B.M. v. Encinitas Union School District
Student challenged the ALJ’s decision
1. “Some benefit” vs. “Meaningful benefit”
2. Student witnesses’ testimony
3. LRE standard
4. Not impartial
19
District Court Cases
B.M. v. Encinitas Union School District
Student challenged the ALJ’s decision
1. “Some benefit” = “Meaningful benefit”
2. Student witnesses’ testimony
3. LRE standard
4. Not impartial
20
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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12. A Year in Review
District Court Cases
B.M. v. Encinitas Union School District
Student challenged the ALJ’s decision
1. “Some benefit” = “Meaningful benefit”
2. Student witnesses’ testimony-post hoc
3. LRE standard
4. Not impartial
21
District Court Cases
B.M. v. Encinitas Union School District
Student challenged the ALJ’s decision
1. “Some benefit” = “Meaningful benefit”
2. Student witnesses’ testimony-post hoc
3. LRE standard – correctly applied
4. Not impartial
22
District Court Cases
B.M. v. Encinitas Union School District
Student challenged the ALJ’s decision
1. “Some benefit” = “Meaningful benefit”
2. Student witnesses’ testimony-post hoc
3. LRE standard – correctly applied
4. Not impartial
23
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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13. A Year in Review
District Court Cases
24
District Court Cases
Smith v. Harrington
No valid Section 1983 claim based on
alleged failure to protect special education
student with Tourette’s syndrome from
bullying by classmates.
25
District Court Cases
Smith
Failure to Train
State employees’ failure to protect an individual
against private violence does not constitute
a violation of the Due Process Clause.
26
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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14. A Year in Review
District Court Cases
Smith
Exceptions
• Involuntary state custody
–
Does not include compulsory attendance
• Affirmatively placed in dangerous situation
–
Does not include merely failing to act
27
District Court Cases
Smith
Supervisory Liability
Personal Involvement
or
Sufficient Casual Connection
28
District Court Cases
M.M. v. San Ramon Valley Unified School District
• Mainstreaming offered in student’s IEP did
not provide her with a non-academic benefit
as required under the IDEA.
• ALJ erred in relying on District witness
testimony that student would benefit from
mainstreaming.
29
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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15. A Year in Review
District Court Cases
M.M.
No guarantee of support on any given day
Mother testified that general education peers refused
to socialize with student in the past
Private school director testified that student required
significant support for social participation
An offer of FAPE must be specific
30
District Court Cases
Anaheim Union School District v. J.E.
District should have conducted a
manifestation determination review for
10th grade student not yet eligible for
special education before moving him
to an alternative school.
31
District Court Cases
J.E.
Deemed to have knowledge
of student’s disability when staff expressed
specific concerns about a
Pattern of Behavior
A “pattern of behavior” does not
refer only to disciplinary issues
32
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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16. A Year in Review
District Court Cases
J.E.
Inability to Remain in
Class
Failing Grades
Pattern of
Behavior
Unable to Complete
Work
Panic Attacks
Staff does not have to specifically state that the child is in
need of special education or should be evaluated.
33
District Court Cases
J.B. v. San Jose Unified School District
• District withdrew its request for due process without
prejudice on student’s right to an IEE following
settlement.
• Student sought attorney’s fees following withdrawal.
• Court denied District’s motion to dismiss, finding that
student had alleged sufficient facts to state a claim that
he was a prevailing party.
34
District Court Cases
J.B.
“Unnecessary Delay”
District would be precluded from re-filing after
waiting seven months
35
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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17. A Year in Review
District Court Cases
J.B.
• Voluntary withdrawal caused a change in
the legal relationship between parties.
• District had no more right to further contest
the IEE.
36
District Court Cases
A.R. v. Santa Monica-Malibu USD
• Offer of collaborative classroom
placement for student with
autism provided FAPE.
• Parents
unilaterally placed
student in private school with a
1:1 aide.
37
District Court Cases
A.R.
FAPE = Best Education Possible
38
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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18. A Year in Review
District Court Cases
A.R.
• Special ed teacher and experts believed
that student was not ready for general
education.
• He would need constant assistance and
would become dependent.
39
District Court Cases
G.R. v. Brentwood Union School District
• Parents were still entitled to attorney’s fees
even though district’s 10-day offer included
more tuition reimbursement than ALJ’s
order.
• Parents were “substantially justified” in
rejecting district’s 10-day settlement offer.
40
District Court Cases
G.R.
ALJ award was more favorable than
district’s 10-day offer because:
1. ALJ ordered placement in a less
restrictive classroom
2. Parents’ right to challenge actions for
the 12-13 SY was preserved
41
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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19. A Year in Review
District Court Cases
US District, Court Middle District of PA:
Hamilton v. Spriggle
The court denied the defendants’ motion
for summary judgment, allowing student to
move forward with his Section 1983 claim.
42
District Court Cases
Hamilton
“State created danger” theory
1.
Harm ultimately caused was foreseeable and fairly
direct
2.
State actor acted with a degree of culpability that
shocks the conscious
3. Plaintiff and state had relationship that made
Plaintiff a foreseeable victim, or subject to potential
harm
4. State actor affirmatively used authority in a way
that created a danger or made Plaintiff more
vulnerable
43
California Supreme Court Cases
44
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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20. A Year in Review
California Supreme Court Cases
American Nurses Association v. Torlakson
14,000
Students in California are diabetic
1 School Nurse: 2,200 Public School Students
45
California Supreme Court Cases
46
California Supreme Court Cases
American Nurses Association v. Torlakson
California law permits trained, unlicensed school
personnel to administer insulin when:
1. Authorized by student’s treating physician; and
2. Given written parental consent
47
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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21. A Year in Review
OAH Decisions
48
OAH Decisions
Student v. Hollister School District
• General education placement with a one-to-one aide
for kindergartner with Down Syndrome was not
appropriate.
• Curriculum could not be modified to a level that
student would obtain a benefit, even with a one-to-one
aide.
 “Class within a class”
 “Meaningful inclusion”
49
OAH Decisions
Hollister
The lack of a general education teacher on the IEP team
meant that the team did not adequately consider a
general education placement, which meant the team
was unable fully to consider placing student in a general
education setting with services and supports.”
50
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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22. A Year in Review
OAH Decisions
Hollister
Remedy:
46 hours
Extracurricular Activity
or
Social Skills
51
OAH Decisions
Student v. Poway Unified Sch. Dist.
District had the right to
assess autistic student’s
cognition over parent’s
objection.
52
OAH Decisions
Poway
School districts are required to ensure that an
evaluation is sufficiently comprehensive to identify
all needs whether or not commonly linked to
student’s eligibility category.
53
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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23. A Year in Review
OAH Decisions
Poway
The standard is not whether the assessment is necessary
to develop an offer of FAPE, but whether the district
determined the assessment is required to meet its legal
obligation to identify all of the student’s needs.
54
OAH Decisions
Poway
Student filed a motion for a preliminary
injunction with the District Court
 Unlikely to prevail on the merits
 Alleged irreparable harm was
speculative at best
55
Legislation
56
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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24. A Year in Review
Legislation
AB 86
Repeal of Hughes Bill
Retroactive Reimbursement
FIRST DEADLINE:
Nov. 21, 2013
Effective July 1, 2013
SB 744
Involuntary transfers to
community day schools
AB 1226
Access based on
gender identity
Effective September 18, 2013
Effective January 1, 2014
57
Citations
•
Ebony S. v. Pueblo Sch. Dist. (10th Cir., Aug 2012) 695 F.3d 1051;
59 IDELR 181 (Cert. denied Mar 2013)
•
Klein Ind. Sch. Dist. v. Hovem (5th Cir., Aug 2012) 690 F.3d 390;
59 IDELR 121 (Cert. denied Mar 2013)
•
R.E. v. New York City Dept. of Educ. (2nd Cir., Sept 2012) 694 F.3d 167;
59 IDELR 241
•
Wallhovd v. Bellflower Unified Sch. Dist. (9th Cir., Jun 2013) 690 F.3d 390;
61 IDELR 94
•
Doug C. v. State of Hawaii Dept. of Educ. (9th Cir., Jun 2013) 720 F.3d 1038;
61 IDLER 91
•
K.M. v. Tustin Unified Sch. Dist. (9th Cir., Aug 2013) 725 F.3d 1088;
61 IDELR 182
58
Citations
•
A.D. v. State of Hawaii Dept. of Educ. (9th Cir., Aug 2013) 61 IDELR 181
•
B.M. v. Encinitas Union Sch. Dist. (S.D. Cal., Feb 2013), Order Affirming
Decision and Directing Entry of Judgment, 60 IDELR 188
•
Smith v. Harrington (N.D. Cal., Mar 2013), Order Granting Defendant’s
Motion to Dismiss Plaintiff’s Third Amended Complaint, 60 IDELR 276
•
M.M. v. San Ramon Valley Unified Sch. Dist. (N.D. Cal., Apr 2013),
Order Re Motions for Summary Judgment, 61 IDELR 39
•
Anaheim Union High Sch. Dist. v. J.E. (N.D. Cal., May 2013) 61 IDELR 107
•
J.B. v. San Jose Unified Sch. Dist. (N.D. Cal., May 2013), Order Denying Defendant’s
Motion to Dismiss, 113 LRP 19806
59
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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25. A Year in Review
Citations
•
A.R. v. Santa Monica-Malibu Unified School District (C.D. Cal., Aug 2013)
61 IDELR 213
•
G.R. v. Brentwood Union Sch. Dist. (N.D. Cal., Jul 2013), Order Granting in
Part and Denying in Part Motion for Attorneys’ Fees, 61 IDELR 124
•
Hamilton v. Spriggle (M.D. PA, Aug 2013), Order Denying Motion for Summary
Judgment, 61 IDELR 251
•
American Nurses Ass’n v. Torlakson (Aug 2013) 57 Cal. 4th 570, 61 IDELR 230
•
Student v. Hollister Sch. Dist. (Jan 2013) OAH Case No. 2012080366
•
Student v. Poway Unified School District (May 2013)
OAH Case Nos. 20130200661, 2012100261
•
Haowen Z. v. Poway Unified Sch. Dist. (S.D. Cal., Aug 2013),
Order Denying Plaintiff’s Motion for a Preliminary Injunction
60
Thank You
61
© 2014 Atkinson, Andelson, Loya, Ruud & Romo
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