Fresno Unified Sch. Dist. v. K.U.

Decision Date28 October 2013
Docket NumberCase No. 1:12–cv–01699–MJS.
Citation980 F.Supp.2d 1160
PartiesFRESNO UNIFIED SCHOOL DISTRICT, Plaintiff/Counter Defendant, v. K.U., a Student, by and through her educational rights holder and mother, A.D.U., and A.D.U., individually, Defendants/Counter Claimants.
CourtU.S. District Court — Eastern District of California

OPINION TEXT STARTS HERE

Sang Jin Nam, McCormick, Barstow, Sheppard, Wayte & Carruth LLP, Fresno, CA, for Plaintiff.

Roger A. Greenbaum, Roger Greenbaum Equity Law & Mediation, Sebastopol, CA, for Defendants.

ORDER DENYING COUNTER CLAIMANTS' MOTION TO AMEND COUNTER CLAIM

MICHAEL J. SENG, United States Magistrate Judge.

Defendants/Counter Claimants K.U., by and through her mother and educational rights holder, A.D.U., and A.D.U.,1 individually, by their attorney, Roger A. Greenbaum, move to amend and supplement their counter claims. The proposed amended and supplemental counter claims (1) add a claim that the ALJ erred in failing to order Plaintiff Fresno Unified School District to provide Plaintiff with compensatory education; (2) add a claim demanding that Plaintiff amend certain unspecified inaccurate or misleading information in K.U.'s education records in compliance with 34 C.F.R. §§ 300.618– 300.621; (3) add a claim seeking a writ of mandate pursuant to California Code of Civil Procedure § 1085; (4) demand attorneys' fees authorized for the prevailing party on a petition for a writ of mandate, and (5) demand a monetary sum sufficient to provide compensatory education to K.U. Having reviewed the record and applicable law, the Court denies the motion.

I. Factual and Procedural Background

According to the written decision in Case No. 2012010705,2 dated August 3, 2012, K.U. (born December 20, 1991) is eligible for special education services as a student with an intellectual disability. She resides within the boundaries of Plaintiff Fresno Unified School District. Her mother, A.D.U., is her conservator and holds her educational rights.

Beginning with the 2006–07 school year, K.U. attended classes full time at Duncan Polytechnical High School. Her most recent academic assessment was performed in 2002. She graduated in June 2010, receiving a certificate of attendance in lieu of diploma. Nonetheless, K.U. continued to attend Duncan full-time in the 2010–11 school year, although her participation was frequently interrupted by a seizures that resulted in headaches, memory loss, and multiple absences.

A. Proceedings Regarding K.U.'s Educational Placement

In April 2011, the District sent A.D.U. notice that K.U.'s annual individualized education program (“IEP”) 3 team meeting was scheduled for May 23, 2012, and that K.U. would not attend Duncan the following year. A.D.U. objected, demanding that any placement decision be made at the IEP meeting. The District sought to move Plaintiff, who was then twenty years old, to an adult transition program intended to serve students from 18 to 22 years, who had passed high school age. On May 17, 2011, the District informed A.D.U. that no further assessment was needed to determine K.U.'s eligibility for continued special education. As the end of the school year approached, the District assigned Susan Kalpakoff, who supervised the adult transition program at Fresno City College, as K.U.'s case manager.

At the District's request, A.D.U. visited two of three available adult transition programs before the IEP meeting. A.D.U. considered neither to be appropriate for K.U. A.D.U. wanted K.U. to remain at Duncan, where she had made significant academic progress. A.D.U. thought K.U.'s program should emphasize academic skills, rather than the practical skills such as mobility, time management, and vocational skills that are emphasized in the transitional program. She considered K.U. to be mildly disabled, typical in her social interactions, and better behaved than many non-disabled students.

The May 23, 2011 IEP meeting included A.D.U.; K.U.'s advocate Sandra Hammond; Varduhi Rosie Kardotyan, a Central Valley Regional Center 4 counselor; Sharon Richards, a District case manager; District administrators Cheryle Anderson and Jonie Defillipo; Anna Demaree, K.U.'s R.O.P. teacher at Duncan; an unnamed school psychologist; and an unnamed school counselor. The District's agenda included two items: K.U.'s placement for the 2011–12 school year and the “fading” 5 of the one-on-one aide who had assisted K.U. at Duncan. Plaintiff's levels of performance included the results of a 2008 academic ability test (WIAT–II) and undated reports that Plaintiff was working on upper-first-grade math skills and first-to-second grade reading skills. Teachers reported that Plaintiff completed art projects with support; did most of what she was asked in Forestry; and identified flowers and performed modified classwork in floral design. Further proposed levels of performance indicated that K.U. had good communication skills, and good fine and gross motor skills. K.U. was friendly, polite, willing to do her work, and able to care for her personal needs while at school and to advocate on her own behalf. Her many absences, headaches, and early departures had affected K.U.'s relationships with her peers.

After the District offered three adult transition programs for 2011–12, the IEP meeting was adjourned to allow A.D.U. to view those she had not yet visited. A.D.U. wanted K.U. to focus on academics and socialization, and sought to have her remain at Duncan.

A.D.U. rejected the Instructional Media Center program (IMC), which served students with moderate-to-severe intellectual disabilities since she believed K.U. was mildly-to-moderately disabled. A.D.U. believed that IMC offered nothing more than simple, functional academics.

A.D.U. also rejected the Cesar Chavez program, which served mild-to-moderately disabled students, focusing on intensive language arts and math, and providing vocational training. The vocational training program was not designed for intellectually disabled students. A.D.U. was disturbed by the students' behavioral and emotional issues, particularly “cussing in the classrooms.” Doc. 3–1 at 6. She also spoke to the administrator at Cesar Chavez, who recommended against placing [K.U.] in the program.” Id.

The IEP meeting reconvened on June 10, 2011. Attendees were A.D.U.; Felicia Puente, K.U.'s Regional Center case manager; Ms. Defillipo; Ms. Anderson; an unidentified school psychologist; and an unidentified counselor. Since the May meeting, the draft I.E.P. had been edited to list K.U.'s school of attendance as the District's adult transition programs rather than Duncan. Personal levels of performance had been edited to reflect that Plaintiff had made steady progress on her 2010–11 annual goals. Although A.D.U. and Ms. Hammond 6 insisted that the I.E.P. should specify K.U.'s goals, the District participants refused to do so, instead stating that the District had not been permitted to assess K.U., which was a prerequisite to determining goals. (The ALJ found that the District had never asked to assess Plaintiff.)

A.D.U. and the District participants also disagreed on possible placements. The District considered only the three adult transition programs, but A.D.U. wanted K.U. to remain at Duncan for a sixth year. A.D.U. argued that at Duncan, K.U. had made good academic progress, had friends and socialized when she was not suffering from seizures and related symptoms, and was mainstreamed. In the adult transition programs, protested A.D.U., K.U. would be placed only with disabled students, would no longer participate in a general education curriculum, and would not progress in academics. The District offered placement in the IMC program, with goals to be determined after thirty days of participation. A.D.U. refused to consent.

On June 20, 2011, the District sent A.D.U. prior written notice of its intent to discontinue Plaintiff's one-on-one aide since an aide would not be needed in an adult transition program. The notice emphasized the K.U. had graduated from Duncan in June 2010 with 230 high school credits and that, in 2011, at 19 1/2 years of age, she was appropriately placed in her least restrictive environment: an adult transition program with age-appropriate peers. On August 12, 2011, Duncan's principal telephoned A.D.U. to advise her that K.U. had been “disenrolled” from Duncan. A.D.U. protested that K.U. had been reassigned without a signed IEP, but the District considered placement at IMC to be an offer of a free and appropriate education.

On September 19, 2011, A.D.U. observed the adult transition program at Fresno City College (“FCC–ATP”). The FCC–ATP program was a collaboration between the District and Fresno City College that “offer[ed] a menu of classes consisting of (1) intervention classes in reading and writing in the morning, taught by a District teacher, (2) afternoon classes run by the Fresno County Office of Education for students with IQs lower than 50, (3) college courses at Fresno Community College, and (4) one-on-one tutoring with a District teacher or paraprofessional when the student was not in another class or program.” A.D.U. was “troubled that there were only male, and only disabled, students in the classroom.” Doc. 3–1 at 8.

On September 19, 2011, Ms. Kalpakoff agreed to schedule an IEP meeting intended to secure K.U.'s placement in an adult transition program. She noted that placement in the Fresno City College program was no longer an option since A.D.U. had not registered K.U. for college coursework by the deadline for the fall semester.

A.D.U. retained an attorney, Dria Fearn, who, on October 4, 2011, demanded K.U.'s re-enrollment at Duncan and development of goals prior to any transition planning. Although the District scheduled an IEP meeting for October 25, 2011, it refused to re-enroll K.U. at Duncan and offered placement in FCC–ATP or IMC.

The October 25, 2011 IEP meeting included A.D.U.; Ms. Fearn; Ms. Hammond;Ms. Puente; Ms. Kalpakoff; Dawn Joest, an advocate from...

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