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District Court Affirms OAH Decision Finding Parents Are Not Entitled to Private School Reimbursement

Vol. 22-001, November 9, 2022

(United States District Court Case No. 21-9135 DSF (MARx) (2022).)

The Gist

  • ​District “can only offer participation;” a lack of parent cooperation does not equate to a denial of meaningful participation.
  • Family waived right to prior written notice (“PWN”) when they signed a Settlement Agreement waiving claims. Also, IEP fulfilled the PWN requirements, and any lack of a PWN did not deny student FAPE or impede the family’s ability to meaningfully participate.
  • Recreational therapy (“RT”) is a therapy, not a disability. Failure to conduct an RT assessment was not a denial of a FAPE because District assessed the underlying disability related to social skills.
  • District offered an educational program that would meet student’s unique needs and provide meaningful educational benefit.

​
​The Details
On August 25, 2021, the Office of Administrative Hearings (“OAH”), issued an 85-page decision finding the District prevailed on all issues, did not deny Student FAPE, and Parents were not entitled to reimbursement for Student’s private school tuition and fees.
 
Parents appealed the OAH decision alleging, among other things, that procedural violations of the Individuals with Disabilities Education Act (“IDEA”) denied them meaningful participation in the IEP development process; the District failed to assess in all areas of suspected disability; and Student’s IEP failed to offer him a FAPE. On November 3, 2022, the United States District Court issued its Order denying Parents’ requests for a reversal of the OAH decision, reimbursement for private school tuition, and attorneys’ fees and costs.
 
The Court found that Parents meaningfully participated in the IEP process. Specifically, the IEP team meeting notes reflected Parents attended the meeting and actively participated, and for any concerns raised, the District was receptive and responsive. Parents were “afforded the opportunity to meaningfully participate in this process and be a part of the IEP team,” and the District “can only offer participation … lack of cooperation does not equate to a denial of meaningful participation.”
 
The Court further found: 1) Parents waived their right to assert procedural violations through the terms of a prior Settlement Agreement, 2) the IEP fulfilled the PWN requirements, and 3) any failure to provide a PWN did not deny Student FAPE or impede Family’s ability to meaningfully participate. In concluding the IEP fulfilled the PWN requirement, the Court noted the IEP provided reasonable notice of the District’s offerings and even if the IEP did not meet all the requirements of a PWN, Parents failed to show how any failure by the District to comply with a PWN obligation significantly impeding their participation in educational decision making.
 
Notably, Parents failed to demonstrate the District denied Student FAPE by failing to assess Student’s need for recreational therapy.  Specifically, the Court concluded that recreational therapy is “just that- therapy” and not itself a disability. The Court explained that the District assessed the underlying disability.
 
The Court also found the District offered appropriate goals, placement in the least restrictive environment, and appropriate accommodations. Accordingly, the Court affirmed the OAH decision in its entirety and Student was awarded no relief.

Read the full Order HERE
 
Practice Pointers
Thorough notes are imperative when summarizing an IEP meeting to show parents are given the opportunity to meaningfully participate. The IEP notes can also be used to meet the PWN requirements.
 
Recreational therapy is not a disability, rather it is a possible therapy to treat an underlying disability.​ Ensure that the underlying disability is evaluated and addressed appropriately.

​Please note, nothing contained in this summary is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any specific matters. 

 

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2019 Annual Review: Strong Showing for School Districts in Termination Hearings

Vol. 20-005, February 24, 2020

The Gist
Based on records provided by the Office of Administrative Hearings (“OAH”) in 2019, thirteen (13) certificated employee termination cases resulted in a decision from a commission on professional competence. In all but two (2) cases, the school district prevailed. 

In 2019, school districts regularly pursued the immediate suspension certificated employees. Thirty-nine (39) employees challenged the school district’s action. OAH granted twenty-one (21) motions for immediate reversal of suspension (“MIRS”) filed by employees in 2019, resulting in the employees returning to paid status pending the completion of the discipline process.

The Details
Dismissal Hearings
In 2019, when school districts sought the termination of certificated employees, the school district generally brought charges against the employee based on several causes for dismissal under the Education Code. In fact, only one school district brough a dismissal action against a certificated employee alleging only one cause for dismissal (persistent violation of a state or district rule/regulation). The school district prevailed in that action.

In the two cases where the school district was unsuccessful in achieving the termination of the employee, the CPC found the district was unable to substantiate the charges under the preponderance of evidence standard. In one case, the CPC relied heavily on an expert witness’s testimony which undermined the district’s investigation and student testimony. (See, CPC Blog Vol. 20-003. Appeal Pending.) In the other case, the district failed to demonstrate that the school psychologist’s shortcomings were grounds for dismissal as opposed to the district’s failure to accommodate her disability. (See, CPC Blog Vol. 20-002.)

Motions for Immediate Reversal of Suspension
In 2019, thirty-nine (39) employees challenged their immediate suspensions. In all cases where the employee was successful in reversing the immediate suspension, OAH noted that the school district failed to adequately plead the allegation of “immoral conduct” or “willful refusal to perform regular assignments without reasonable cause.”

Although we do not know the details, the fact OAH decided more MIRS than dismissal cases demonstrates that a significant number of cases settled before hearing after the decision on the MIRS.

Practical Pointers
School district administrators should be encouraged by the success rate of their colleagues in dismissal hearings in 2019. Dedication to the progressive discipline process, documentation of misconduct and poor performance, and adequate preparation of witnesses for hearing can all serve as helpful components in the release of certificated employees.

School districts should work closely with legal counsel when preparing charges to ensure that when pursuing the immediate suspension of an employee, sufficient facts are alleged to state a claim of “immoral conduct” or “willful refusal to perform regular assignments without reasonable cause.”

Read More
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Prior Disciplinary Notices Demonstrate Employee’s Continuous and Intentional Pattern of Misconduct

Vol. 20-004, February 19, 2020

(OAH Case No. 2018100560 (2019).)

The Gist
While evidence of an employee’s underlying misconduct that occurred more than four years prior to the issuance of dismissal charges is not admissible in a CPC hearing, evidence that the district issued disciplinary letters and took corrective measures to remediate the employee’s conduct more than four years prior to the dismissal action is admissible to establish that the employee failed to comply with the district’s directives and to show that an employee persistently failed and/or refused to follow directives.

The Details
In 2012, an elementary teacher received a Conference Summary Memorandum and a Letter of Warning when he required students to give him shoulder massages. In the memorandum and letter, the teacher was directed to refrain from inappropriate physical contact with students.

In 2014, the district issued the teacher a Letter of Reprimand following complaints of inappropriate physical contact with students. Again, the district directed the teacher to refrain from physical contact with students, including initiating or permitting physical contact with students, and to report any physical contact he had with students.

Despite the district’s efforts, and in violation of the directives contained in the prior disciplinary notices, in 2018, the teacher again engaged in inappropriate physical contact with multiple students including tickling students, allowing students to give the him shoulder massages, tousling students’ hair, flicking girls’ ponytails, hugging, and placing his cheek against a student’s face. Consequently, the district moved for the teacher’s dismissal on the basis of unprofessional conduct, unsatisfactory performance, evident unfitness for service, and persistent violation or refusal to obey board regulations. 

Following a prehearing motion filed by the teacher, the CPC excluded evidence of the 2012 incidents because the conduct at issue occurred more than four years before the filing of the case. However, the CPC permitted the district to admit evidence that the teacher received directives to refrain from engaging in the underlying conduct. These directives established the circumstances surrounding the teacher’s misconduct in 2014.  

Ultimately, the CPC determined that the teacher’s inappropriate contact with students was intentional and constituted unprofessional conduct, unsatisfactory performance, evident unfitness for service, and persistent violation or refusal to obey board regulations. The CPC rejected the teacher’s defense and found that his conduct was not a momentary lapse in judgement. Instead, because he received multiple warnings and directives to abstain from such conduct, the CPC found the teacher was either unwilling or incapable of refraining from unnecessary physical contact with students. Moreover, the CPC noted that the district specifically directed the teacher to stop his behavior, yet the violations repeated, evidencing intentional misconduct.

Practical Pointers
School site leaders should issue clear disciplinary letters designed to correct an employee’s misconduct. These letters should contain detailed directives designed to prevent the misconduct from reoccurring. Further, these disciplinary letters should reference any similar past misconduct and identify whether the previously issued directives were satisfied. These letters may serve as evidence of persistent violation of school policy or directives if formal disciplinary proceedings become necessary. 

Dismissal Upheld.

 

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Expert Witness Testimony Undermines District’s Investigation [APPEAL PENDING]

Vol. 20-003, February 12, 2020
(OAH Case No. 2018120438 (2019).)​

The Gist

When interviewing student witnesses, school administrators should take steps to avoid confirmation bias and cross-contamination of testimony. Improper interview techniques may undermine a school district’s investigation.

The Details

A teacher faced dismissal charges related to misconduct arising from his interactions with students while teaching high school and second grade. The school district alleged that when teaching second grade, the teacher yelled at students, forced students into kneeling positions to serve “time-out,” and grabbed students by their necks.

After one second grade student accused the teacher of misconduct, the school principal interviewed three additional second grade students. The students were English Language Learners and struggled academically. The principal asked each student witness to write a statement describing the teacher’s misconduct after their interview. Because some of the student witnesses could not write legible statements, the principal and another administrator transcribed the statements.

At hearing, the school district presented no evidence that the administrators admonished student witnesses not to discuss the investigation or their interviews following the meeting with the principal. Further, the principal did not take notes during the student interviews.

At hearing, the principal testified that after two student interviews, she concluded that something inappropriate occurred in the teacher’s classroom.

The teacher’s expert witness questioned the principal’s interview practices and described best practices for interviewing minor students. The expert explained that cross-contamination of witnesses and age are the two key issues when interviewing children. The expert testified that the younger the child, the more susceptible they are to suggestibility. The expert also testified that children with learning differences (including students who are English Language Learners and those who struggle academically) are more susceptible to suggestibility.

The expert opined that the focus of the questions became narrower throughout the investigation and were designed to elicit certain information consistent with the information derived from previous interviews.

The CPC gave significant weight to the expert testimony and determined that it could not conclude that misconduct occurred when the teacher served in second grade. Ultimately, the CPC determined that the school district did not satisfy its burden to terminate the teacher given the principal’s interview techniques and the students’ conversations amongst themselves regarding the investigation.

The teacher also faced a number of charges related to inappropriate conduct with high school students. The district presented evidence that the teacher stared at female students’ breasts and buttocks, invaded their personal space, and made inappropriate comments about female students’ appearances. The district also presented evidence that the teacher maintained motorcycle magazines in his classroom that contained explicit material. However, the CPC found that the district failed to provide sufficient evidence to sustain these charges.

Consequently, the CPC dismissed the charges against the teacher.

Practical Pointers

At the outset of an investigative interview, school district personnel should take steps to build rapport with the student witness. Further, the interviewer should set ground rules that establish there is no “right” or “wrong” answer and the student witness should not provide the answer he/she believes the interviewer wants to hear.

When interviewing students, interviewers should explain that the student must be honest during the interview. Interviewers should also establish that young students understand the difference between the truth and a lie.

Interviewers should also take steps to eliminate confirmation bias and cross-contamination issues when conducting student interviews. The younger the student, the more susceptible the student is to suggestibility. To the greatest extent possible, interviewers should ask open-ended questions that allow students to provide a narrative, rather than a “yes” or “no” response. Interviewers should also direct students not to discuss the interviews with their peers.

Finally, interviewers should take detailed notes and save copies of interview questions and the students’ responses. Following best practices will help maintain the integrity of the investigation and prevent student statements from being called into question in future discipline proceedings. ​

Dismissal Overturned. [Appeal Pending] ​​

Please note, nothing contained in the CPC Blog is intended to be legal advice. Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters.

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Failure to Accommodate an Employee’s Disability May Undermine Disciplinary Action

Vol. 20-002, January 27, 2020
​
(OAH Case No. 201800600 (2019).)

The Gist
If an employee’s poor performance is related to the employee’s disability, evidence that the school district failed to appropriately accommodate the employee may undermine district’s ability to dismiss the employee.

The Details
Over three consecutive school years, a psychiatric social worker in the district’s mental health clinic made errors in her paperwork, missed deadlines in submitting and completing documentation, failed to keep accurate records of her time with clients, habitually failed to complete required documentation in a timely manner, and failed to maintain client confidentiality.

During the relevant time period, the social worker’s vision deteriorated and ultimately, it was established that she was legally blind. The social worker informed the school district of her disability and engaged with the district in the interactive process. The district accommodated the social worker by providing an assistant to help enter required data into the district’s electronic system. On several occasions, the social worker informed the district that the assistant was ineffective. However, the district did not augment the provided accommodation.

Despite her disability and due to its performance concerns, the school district moved for her dismissal, charging the social worker with immoral conduct, unprofessional conduct, dishonesty, unsatisfactory performance, evident unfitness for service, and persistent violation of, or refusal to obey school rules and state law.

At the hearing before the CPC, the social worker asserted that the school district failed to provide reasonable accommodations to her for her disability. The social worker also asserted that the assistant provided was ineffective and inaccurate in her work. The social worker argued that if the district had provided her with text-to-speech software, which would have allowed her to directly access the district’s electronic information system, her performance would not have suffered.

The CPC found that it could not determine whether the alleged deficiencies were attributable to the social worker or the district’s failure to provide additional and/or more appropriate accommodations to the social worker. Although the CPC noted that whether the school district violated the ADA and/or FEHA was beyond the scope of its inquiry, because it was clear that the district’s accommodations were not effective or appropriate, the social worker could not be terminated.

Practical Pointers
Failure to accommodate an employee may compromise a school district’s ability to discipline an employee for poor performance. Therefore, school districts should engage all disabled or potentially disabled employees in the interactive process as soon as the district becomes aware of an employee’s disability or has reason to believe the employee is disabled. If the disabled employee can be accommodated, school districts should continue to engage the employee in the interactive process and make appropriate modifications to the provided accommodations to ensure the disabled employee can fulfill all essential job functions of the assigned position.
​
Dismissal Overturned. 
​
Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 

 

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Dismissal Overturned Due to Principal’s Failure to Address Employee’s Misconduct

​Vol. 20-001, January 8, 2020​

(OAH Case No. 2018051034 (2018).)

The Gist
A principal’s knowledge of and failure to correct an employee’s repeated misconduct will be deemed tacit approval of the conduct by the district. Districts must identify and document whether an employee has complied with given directives. If an employee is not provided with notice of non-compliance, the CPC will infer compliance. 

The Details
In this case, a high school teacher accepted paid employment as a softball coach for a private school, which required him to leave his district teaching position before the conclusion of the workday on several occasions.

The school district maintained a policy regarding non-school employment, which prohibited employees from engaging outside employment activities that were inconsistent, incompatible, and in conflict with, or inimical to their district duties.

Although the principal did not expressly approve of the teacher’s practice of leaving his assignment before the end of the workday, the principal was aware of the teacher’s conduct.

When a second school administrator later learned of the teacher’s conduct, the teacher was directed to resign from his coaching position. The district maintained the teacher’s employment for a complete school year after issuing this directive. No administrator issued any subsequent notices or directives to the teacher regarding his private coaching job or his practice of leaving work early. The teacher ultimately resigned from his private coaching job on his own accord, and thereafter he refrained from leaving work early.

In addition to the district’s concerns regarding the teacher’s outside employment, the teacher’s performance was substandard. Consequently, the principal issued the teacher a 30-Day Improvement Plan containing several directives to correct his deficiencies.

Shortly thereafter, the teacher was temporarily relieved of his full-time duties due to the expiration of his teaching credential and placed in a substitute position. While serving as a substitute teacher, the district did not expect the employee to comply with directives included in his improvement plan.

In the following school year, the teacher was reemployed by the district on a full-time basis as a regular teacher. However, the principal did not enforce the directives outlined in the 30-Day Improvement Plan or conduct classroom observations to determine whether the teacher’s performance improved.

The school district moved for the teacher’s dismissal based on immoral conduct, dishonesty, evident unfitness for service, and persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State.

The CPC overturned the dismissal.

With respect to the teacher’s private employment, the CPC found that although the employment was inconsistent, incompatible and in conflict with his instructional duties at the district, it did not warrant dismissal. The CPC reasoned that because the principal was aware of the teacher’s outside employment and did nothing to prevent or modify the teacher’s practice of leaving his assigned position before the end of the workday, the district tacitly approved of the teacher’s conduct. Further, the CPC reasoned that because the teacher remediated his conduct, and the district continued his employment, the teacher was not unfit to teach.

With respect to the performance issues, the CPC found that although the district established that the teacher “struggled to establish and communicate learning goals for all students,” the district did not demonstrate whether the 30-Day Improvement Plan was implemented, or whether after receipt of support and guidance, the teacher continued to exhibit difficulties in the classroom. In the absence of such evidence, the CPC assumed the teacher’s performance improved.

Practical Pointers 
School site administrators should be reminded that their actions constitute district action. Therefore, school site administrators must follow through on progressive discipline and consistently admonish employees who violate school or district rules/regulations and fall short of expectations.

Additionally, administrators must monitor employee performance and document continued deficiencies. This is especially true after an administrator issues directives to improve. Failure to identify, document, and address on-going performance concerns may lead a CPC to wrongfully believe that an employee’s performance improved.

​Dismissal Overturned.

Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 

 

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