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2012-04-23 First Amended Complaint

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2012-04-23 First Amended Complaint Powered By Docstoc
					               Case 2:11-cv-03471-KJM-EFB Document 6                 Filed 04/23/12 Page 1 of 35
               Rony Sagy (State Bar No. 112219)
             1 Sagy Law Associates
               930 Montgomery Street Suite 600
             2 San Francisco CA 94133
               rony.sagy@sagylaw.com
             3 Tel: 415-986-0900
               Fax: 415-956-3950
             4
               Stephen A. Rosenbaum (State Bar No. 98634)
             5 1716 Milvia Street
               Berkeley, CA 94709
             6 srosenbaum@law.berkeley.edu
               Tel: 510-644-3971
             7
               Attorneys for Plaintiffs
             8 MORGAN HILL CONCERNED PARENTS ASSOCIATION and
               CONCERNED PARENTS ASSOCIATION
             9

         10                                    UNITED STATES DISTRICT COURT
         11                                   EASTERN DISTRICT OF CALIFORNIA
         12                                        SACRAMENTO DIVISION
         13
               MORGAN HILL CONCERNED                            CASE NO. 2:11-cv-03471-KJM-EFB
         14    PARENTS ASSOCIATION, an
               unincorporated association, and                  FIRST AMENDED COMPLAINT FOR
         15    CONCERNED PARENTS                                DECLARATORY AND INJUNCTIVE RELIEF
               ASSOCIATION, an unincorporated
         16    association,                                     Jury Trial Requested
         17                     Plaintiffs,
         18                v.
         19    CALIFORNIA DEPARTMENT OF
               EDUCATION, and DOES 1 through 5,
         20
                                Defendants.
         21

         22
                                                           INTRODUCTION
         23
                      This is an action to enjoin Defendant California Department of Education (CDE) from
         24
               violating the rights of children with disabilities to receive a “free appropriate public education”
         25
               (FAPE). Plaintiffs, associations of concerned parents of California children with disabilities, seek
         26
               to redress Defendant’s violations of the Individuals with Disabilities Education Act (IDEA),
         27
               Section 504 of the Rehabilitation Act, and related federal and state laws. As the entity charged
         28

SAGY LAW                                                                                       FIRST AMENDED COMPLAINT
ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                 Filed 04/23/12 Page 2 of 35

             1 with the frontline responsibility for ensuring that all children with disabilities in the State receive

             2 FAPE, CDE must either ensure that the local educational agencies (LEAs) implement that core

             3 mandate or undertake the task itself. It has done neither.

             4                                     The Systemic Denial of FAPE

             5          The allegations of the First Amended Complaint (FAC) portray a special educational

             6 system in freefall. California children with disabilities are being chronically deprived of FAPE

             7 because school districts throughout the State are systematically failing them. Though the layers

             8 of noncompliance evidenced by the FAC’s allegations implicate every aspect of the relevant

             9 federal and state mandates, the following areas of noncompliance are notable for their persistence

         10 and frequency:

         11            failure to educate children with disabilities in the general educational environment “to the

         12             maximum extent appropriate,” or, as defined by the IDEA, failing to provide FAPE in the

         13             Least Restrictive Environment (LRE);

         14            failure to locate, identify and refer children with disabilities as required by IDEA’s “Child

         15             Find” provisions;

         16            failure to initiate evaluations when a child’s conduct and performance demand it and

         17             resistance to parental requests for independent educational evaluations (IEEs);

         18            formulating individualized educational programs (IEPs) without the statutorily mandated

         19             team, most insidiously the routine exclusion of parents;

         20            failure to consistently implement IEPs; and

         21            failure to maintain continuity in children’s placements.

         22                                 CDE as Responsible for the Denial of FAPE

         23             To fulfill its IDEA charter, CDE is tasked with monitoring, investigating and enforcing

         24 the provision of FAPE at the local level. CDE has effectively abdicated its IDEA responsibilities.

         25             Failure to Monitor. CDE’s monitoring model, primarily based on the LEAs’ self-

         26 reported data on a series of State Plan Performance Indicators (SPPIs), has endemic flaws. First,

         27 CDE has no methodology in place to insure the integrity and reliability of the substantive data it

         28 receives from the school districts. Second, CDE analyzes and uses only a limited subset of the
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SAGY LAW                                                                                         FIRST AMENDED COMPLAINT
ASSOCIATES                                                                   MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                Case 2:11-cv-03471-KJM-EFB Document 6                Filed 04/23/12 Page 3 of 35

             1 SPPIs—a subset that focuses largely on tangential procedural factors rather than the quality or

             2 consistent delivery of educational services—in evaluating compliance. Third, CDE fails to take

             3 meaningful action in response to those SPPIs that are most reflective of a special educational

             4 system out of compliance—low graduation rates, declining proficiency rates, persistent failure to

             5 educate in the least restrictive environment, and a disturbing disproportionality of ethnic and

             6 racial representation in the special education environment. Finally, CDE blunts any potential

             7 impact of its periodic onsite Verification Reviews (VRs) by demanding only that the LEAs

             8 develop compliant policies, rather than implement them, in response to findings of systemic

             9 noncompliance.

         10             Failure to Investigate. Both the IDEA and its implementing federal and state regulations

         11 require that the SEAs investigate the circumstances alleged in a Compliance Complaint (CC).

         12 CDE purports to satisfy its investigative obligations by seeking only paper or even conversational

         13 confirmation from the school districts that the allegations of the CC are without merit.

         14             Failure to Enforce. The IDEA provides SEAs with a variety of enforcement tools but

         15 CDE does not use them. It instead purports to “enforce” its corrective action plans by “sampling”

         16 records of a handful of students, whose selection is often known to the LEA in advance, and

         17 through paper “verification.” In the end, there is no enforcement at all as the CDE imposes no

         18 penalties for known, chronic noncompliance.

         19             CDE’s Flawed Model as Impacting All Districts. Plaintiffs offer the experiences of

         20 numerous California children with disabilities who are being deprived of, and school districts

         21 failing to provide, FAPE to illustrate the systemic reach of the problem. The examples are

         22 illustrative only as the FAC’s allegations document the structural and systemic nature of CDE’s

         23 failure to ensure FAPE. Though there may be districts that have overcome CDE’s chronic failure

         24 to monitor, investigate and enforce, all districts are implicated by the paper compliance model

         25 that CDE has adopted and imposed. Until the model itself is restructured, school children

         26 throughout the State will continue to be denied their fundamental right to receive a Free

         27 Appropriate Public Education.

         28 / / / /
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SAGY LAW                                                                                       FIRST AMENDED COMPLAINT
ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 4 of 35

             1                                           Requested Relief

             2          The need for expansive reform of California’s special education delivery system is evident

             3 but the solution must start with CDE’s adoption and implementation of a statewide monitoring,

             4 investigative and enforcement model that verifiably measures and ensures the provision of

             5 FAPE—not just the promise to develop compliant policies. The model must embrace and enforce

             6 CDE’s last line of responsibility to provide FAPE directly to children with disabilities where an

             7 LEA fails or refuses to do so. Plaintiffs seek appropriate injunctive and declaratory relief to

             8 ensure that these essential goals are met.

             9               JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT

         10             1.     This Court has jurisdiction over the subject matter and the parties pursuant to: (a)

         11 20 U.S.C. §1415(i)(2) as the claims are asserted under the Individuals with Disabilities

         12 Improvement Education Act (“IDEA”) and the California Education Code; and (b) 28 U.S.C.

         13 §§1331, 1343(a)(3), 1343(a)(4) and 1367 as the claims are also asserted under Section 504 of the

         14 Rehabilitation Act of 1973 (“Section 504”) and other laws of the United States.

         15             2.     Venue is proper pursuant to 28 U.S.C. §1391(b) as Defendant California

         16 Department of Education resides in this judicial district and a substantial part of the events or

         17 omissions giving rise to the claims occurred in this judicial district. This action is filed in the

         18 Sacramento Division of this District pursuant to Local Rule 120(d) as the events underlying these

         19 claims principally arose in the County of Sacramento.

         20             3.     This Court is the only appropriate forum for redress of CDE’s failure to monitor,

         21 investigate and enforce the laws designed to provide FAPE to children with disabilities.

         22 Plaintiffs’ FAC alleges a statewide failure by the California Department of Education to comply

         23 with the mandates of IDEA, Section 504 and other laws designed to protect children with

         24 disabilities. Implementing an effective solution to the alleged deficits requires far-reaching

         25 injunctive and declaratory relief. The available administrative forum lacks jurisdiction and

         26 authority to entertain and order the contemplated relief. There is accordingly no available avenue

         27 for exhausting administrative remedies and this Court is the appropriate, and only, forum

         28 empowered to consider and grant the requested relief.
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SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 5 of 35

             1                                           THE PARTIES

             2          A.     THE PLAINTIFFS

             3          4.     Plaintiffs Morgan Hill Concerned Parents Association and Concerned Parents

             4 Association (collectively “Concerned Parents” or “Plaintiffs”) are unincorporated associations of

             5 parents of children with disabilities throughout the State of California, including Morgan Hill

             6 Unified School District (“MHUSD,” “Morgan Hill” or “District”), San Francisco Unified School

             7 District (“SFUSD,” “San Francisco” or “District”), Folsom-Cordova Unified School District

             8 (“FCUSD,” “Folsom-Cordova” or “District”), San Jose Unified School District (“SJUSD,” “San

             9 Jose” or “District), San Diego Unified School District (“SDUSD,” “San Diego” or “District,”)

         10 Kern High School District (“KHSD,” “Kern” or “District.”), and Los Angeles Unified School

         11 District ( “LAUSD,” “LA” or “District”). The associations were formed to ensure and protect the

         12 legal rights of these children to receive a free appropriate public education in the least restrictive

         13 environment. Members of Concerned Parents are parents of children with disabilities who are

         14 either being presently, or were previously, denied FAPE in the State of California.

         15             B.     THE DEFENDANTS

         16             5.     Defendant California Department of Education is the governmental entity created

         17 and mandated to oversee the operation of public schools in the State of California and is the “state

         18 educational agency” (SEA) established to oversee and ensure the provision of special education

         19 services to children with disabilities in California pursuant to the Individuals with Disabilities

         20 Education Improvement Act of 2004, 20 U.S.C. §§ 1400 et seq. It is also charged with ensuring

         21 that no child with disabilities is discriminated against on the basis of his or her disability pursuant

         22 to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). Defendant CDE’s offices

         23 are located at 1430 N Street in the City of Sacramento, County of Sacramento, State of California.

         24             6.     Defendant CDE knew, or should have known had it fulfilled its statutory

         25 monitoring, investigation and enforcement obligations, that school districts throughout the State

         26 have systemically failed to provide FAPE to all eligible children with disabilities as required

         27 under federal and state laws.

         28             7.     Plaintiffs are unaware of the true names, status, capacities, whether individual,
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SAGY LAW                                                                                       FIRST AMENDED COMPLAINT
ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 6 of 35

             1 corporate, associate, or otherwise, of Defendants sued herein as Does 1 through 5, inclusive, and

             2 therefore sues these Defendants by such fictitious names. Plaintiffs will amend the Complaint to

             3 allege the true names and capacities when ascertained. Plaintiffs are informed and believe that at

             4 all times herein mentioned, each of the fictitiously named Defendants was in some manner

             5 responsible for Plaintiffs’ damages and injuries alleged herein. In performing each of the acts

             6 alleged below, or in failing to perform the acts as alleged below, each Defendant acted jointly or

             7 individually as agents for each and for all other Defendants. Plaintiffs have suffered injury as a

             8 result of the actions and omissions of each and all of the Defendants.

             9                                      LEGAL FRAMEWORK

         10             A.     IDEA and Implementing Regulations

         11             8.     The IDEA provides that SEAs are eligible for financial assistance in

         12 accomplishing the legislation’s core mandate where the “State has in effect policies and

         13 procedures to ensure that the State meets [certain] conditions.” 20 U.S.C. § 1412(a).

         14             9.     The seminal goal, and the first condition, of the IDEA is that the State ensure that

         15 “[a] free appropriate public education is available to all children with disabilities residing in the

         16 State between the ages of 3 and 21, inclusive, including children with disabilities who have been

         17 suspended or expelled from school.” 20 U.S.C. § 1412(a)(1)(A).

         18             10.    Second, IDEA requires, as a condition to funding, that the State “establish[] a goal

         19 of providing full educational opportunity to all children with disabilities and a detailed timetable

         20 for accomplishing that goal.” 20 U.S.C. § 1412(a)(2).

         21             11.    Third, IDEA requires that the State ensure that “[a]ll children with disabilities

         22 residing in the State . . . are identified, located and evaluated.” 20 U.S.C. § 1412(a)(3).

         23             12.    Fourth, the State is required to ensure that an Individualized Education Program

         24 (“IEP”) is “developed, reviewed and revised for each child with a disability in accordance with

         25 section 1414(d) of this title.” 20 U.S.C. § 1412(a)(4).

         26             13.    Fifth, in a section entitled “Least Restrictive Environment,” IDEA mandates that,

         27 “[to] the maximum extent appropriate, children with disabilities, including children in public or

         28 private institutions or other care facilities, are educated with children who are not disabled, and
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ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                 Filed 04/23/12 Page 7 of 35

             1 special classes, separate schooling, or other removal of children with disabilities from the regular

             2 educational environment occurs only when the nature or severity of the disability of a child is

             3 such that education in regular classes with supplementary aids and services cannot be achieved

             4 satisfactorily.” 20 U.S.C. § 1412(a)(5)(A).

             5          14.     Sixth, the State is enjoined to ensure that all “[c]hildren with disabilities are

             6 evaluated in accordance with [section 1414] of this title.” 20 U.S.C. § 1412(a)(7).

             7          15.     The State is charged with the ultimate responsibility for ensuring the provision of

             8 each of these services, principally the provision of a free appropriate education, to all children

             9 with disabilities within the State. 20 U.S.C. § 1412(a)(11)(A).

         10             16.     In carrying out its responsibilities under the IDEA, the State is required to

         11 “monitor implementation of,” investigate and enforce the IDEA. 20 U.S.C. § 1411(e)(2)(B); 20

         12 U.S.C. § 1416; 34 C.F.R. § 300.601.

         13             17.     The “primary focus” of State monitoring and enforcement activities is on

         14 “improving educational results and functional outcomes for all children with disabilities.” 20

         15 U.S.C. § 1416(a)(2).

         16             18.     The “monitoring priorities” of the IDEA are to use indicators that adequately

         17 measure performance in the following areas: the “[p]rovision of a free appropriate public

         18 education in the least restrictive environment;” “State exercise of general supervisory authority,

         19 including child find;” and “[d]isproportionate representation of racial and ethnic groups in special

         20 education and related services.” 20 U.S.C. § 1416 (a)(3)(A)-(C).

         21             B. Section 504 and Implementing Regulations

         22             19.     Section 504 mandates that no otherwise qualified individual with a disability shall,

         23 solely by reason of his or her disability, be excluded from participation in, be denied the benefits

         24 of, or be subject to discrimination under any program or activity receiving federal financial

         25 assistance. 29 U.S.C. § 794(a).

         26             20.     Each student with a disability, regardless of the nature or severity of the disability,

         27 shall be provided with a free appropriate public education. 34 C.F.R. § 104.33(a).

         28
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SAGY LAW                                                                                         FIRST AMENDED COMPLAINT
ASSOCIATES                                                                   MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                           Filed 04/23/12 Page 8 of 35

             1              21.      Section 504 requires that each student with a disability be provided an education

             2 with persons who do not have disabilities to the maximum extent appropriate, and be placed in

             3 the general education environment, unless that cannot be achieved satisfactorily. 34 C.F.R.

             4 §104.34(a).

             5                                              STATEMENT OF FACTS

             6              A.       CALIFORNIA’S SYSTEMIC DENIAL OF FAPE

             7              22.      Plaintiffs offer the educational histories of numerous school children with

             8 disabilities from across the State of California who are being, or have been, denied FAPE and are

             9 the consequent victims of discrimination.1 They are reflective of the experiences of far too many

         10 of the children in California’s special educational population. Plaintiffs offer as well the policies,

         11 procedures and statistics of a number of California school districts that are systematically
                                                                                           2
         12 depriving California school children of FAPE and equal treatment under the law. The deficits

         13 portrayed by these allegations broadly mimic the overall failure of districts throughout the State

         14 to provide FAPE. Together, the stories of the children and the districts that are charged with

         15 serving them illustrate California’s noncompliance with the IDEA, Section 504 of the

         16 Rehabilitation Act and related federal and state laws. The following categories represent the most

         17 common and persistent of the State’s many violations.

         18                          1.       Statutory Failures to Provide FAPE

         19                                   a.       Failure to Provide FAPE in the LRE

         20                          23.      The overarching goal and mandate of the IDEA is that children with

         21 disabilities be educated in the general educational environment populated by children without

         22 disabilities; that is, school districts are charged with providing FAPE in the Least Restrictive

         23 Environment (LRE). Because general education teachers are not sufficiently trained to

         24

         25      1
                  The special educational experiences of these California school children are attached to this First Amended
                 Complaint as “Exhibit A” and incorporated herein by reference.
         26
                 2
                     The allegations regarding numerous school districts’ failure to provide FAPE are attached to this First Amended
         27 Complaint as Exhibit “B” and incorporated herein by reference.

         28
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SAGY LAW                                                                                                     FIRST AMENDED COMPLAINT
ASSOCIATES                                                                              MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                Filed 04/23/12 Page 9 of 35

             1 accommodate learning differences, and because the presence of children with disabilities in the

             2 classroom often poses a significant challenge to the teacher, children with disabilities are far too

             3 frequently segregated into special education classes in violation of the federal mandate and often

             4 in direct defiance of their IEPs. The case of Roland F. (Exhibit A, p. 5) and that of Margaret K.

             5 (Exhibit A, p. 16) illustrate just two examples of districts’ lack of motivation, interest or training

             6 in offering placements for children in the least restrictive environment.

             7                          b.     No Child Find

             8          24.     The IDEA requires that all states have a “comprehensive Child Find system” to

             9 assure that all children in need of early intervention or special education services are located,

         10 identified and referred. Plaintiffs allege that California’s system is neither “comprehensive” nor

         11 effective. The parents of John H. (Exh. A, p. 1), for example, first learned of their son’s Autism

         12 in fifth grade when his classroom behavior led them to demand an evaluation. Yet the school

         13 itself had identified clear Autistic behaviors in their son as early as Kindergarten. The School

         14 District did not alert the parents nor did it provide essential services to the child for another five

         15 years and, only then, in response to legal compulsion. The example is far from isolated.

         16                             c.     No Evaluations

         17             25.     The IDEA requires that a child with disabilities be evaluated in order to become

         18 eligible for special education services addressing his or her needs. Yet California school districts

         19 rarely refer children for evaluations without parental pressure and, even then, often provide

         20 inadequate evaluations. The story of Alicia M. (Exhibit A, p. 15) is illustrative. During the time

         21 that Alicia’s parents were unsuccessfully pressing the District for an evaluation, they learned

         22 from the police that Alicia’s teacher had repeatedly tied her to a chair to restrain her from

         23 fidgeting. They later learned that, during the police investigation a District official informed the

         24 police that Alicia had Autism. To this date, the District continues to refuse to make Alicia

         25 eligible for, or provide, Autism-related support services.

         26             26.     When parents are unsatisfied with the initial evaluation, they are entitled to request

         27 an independent educational evaluation (“IEE”) funded by the school district. The districts

         28 consistently resist these requests, forcing parents to either fund the IEE themselves or spend
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ASSOCIATES                                                                  MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
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             1 thousand of dollars in legal fees battling the reluctant LEAs, which is often a greater expense than

             2 the IEE itself. See the cases of Allen F. and John F., Exhibit A, pp. 16-20.

             3                         d.      Improperly Prepared IEPs

             4          27.     The touchstone of the special educational services contemplated by the IDEA is

             5 the Individualized Educational Program (IEP). The parents and teachers are essential parts of the

             6 team that develops this educational roadmap for the child. Yet parents, necessary experts, and

             7 general education representatives are routinely either excluded or missing. There is overwhelming

             8 documentation that the districts pay little regard to placement in the least restrictive environment.

             9          28.     Plaintiffs offer various examples of parents whose experiences reflect the school

         10 districts’ systemic failure to include them in IEP team meetings. The examples reflect the

         11 common practice of ignoring the parents’ schedules and proceeding with the IEP in their absence.

         12 In the case of Wade P. (Exhibit A, p. 1), the District cancelled three meetings in a row and then

         13 unilaterally scheduled the fourth when it knew that Wade’s parents and other relevant experts

         14 could not attend. It held the fourth meeting without them and without their input, reduced

         15 Wade’s inclusion time in a general education class by 50% and eliminated 15-18 hours of weekly

         16 at-home services mandated by his earlier IEP.

         17             29.     The use of electronic IEPs to formulate and record a child’s educational blueprint

         18 has become increasingly widespread. Parents are finding that the originally welcomed entry to

         19 the electronic age in fact imposes unacceptable restraints on the development of a responsive and

         20 meaningful IEP. The following is a non-exhaustive list of some of the challenges posed by the

         21 electronic IEP programs now commonly in use by school districts:

         22            Limitation on Input. Many of the electronic IEP programs limit entries to 250

         23             characters. This artificial restriction limits the ability of the parent and the professionals

         24             to describe the child's current level of performance, his or her challenges, goals, objectives

         25             and recommendations. Other programs theoretically permit unlimited characters but only

         26             in a font size too small to read. As a result of these limitations, written information is

         27             often cut off mid-word thereby frustrating the intent of the IEP team.

         28            Compromised Parental Participation. The prevalence of electronic IEPs often
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ASSOCIATES                                                                   MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
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             1          frustrates the ability of parents to meaningfully participate in the formulation of the IEP.

             2          Some programs require that the parental consent box be checked even before the parent

             3          has had an opportunity to review the printed version of the IEP.     In other cases, the

             4          parent leaves an IEP team meeting without an IEP copy because of printing challenges.

             5         Subsequent IEP Alteration without the Parents’ Involvement. Another complicating

             6          factor is that electronic IEPs can be altered after the IEP meeting without the parents’

             7          knowledge or consent.

             8         Categories of Services Limited to the “Drop-Down” Menu. While the “paper” version

             9          of the IEP offers 32 categories of services available according to the child’s needs, the

         10             electronic versions offer significantly fewer options. The programs also limit the location,

         11             duration and frequency of services based on the electronically preselected option in the

         12             drop down menu.

         13            Bad Data Reported. The person inputting the data into the electronic IEP is prompted as

         14             to whether or not the entry is compliant or noncompliant, often resulting in the entry of

         15             incorrect data in order to reach the overall goal of compliance. The unreliable data not

         16             only compromises the child’s educational progress, it infects the integrity of the statewide

         17             data on which CDE and OSEP rely to evaluate a district’s fulfillment of its IDEA

         18             obligations.

         19                            e.      Inadequate IEP Implementation.

         20             30.    Even where a facially proper IEP is developed, it is rarely implemented in whole

         21 or even in part. One child’s IEP, for instance, called for “additional adult support.” The District

         22 purported to justify the absence of a 1:1 paraprofessional by maintaining that the teacher was the

         23 “additional” support. CDE ultimately reversed the District and directed it to provide a 1:1 aide

         24 but upheld the District’s right to use the intentionally misleading terminology.

         25                            e.      No Continuity.

         26             31.    The IDEA requires a “continuum of placements” for children with disabilities.

         27 California districts instead offer, without proper transition, a patchwork of mostly inadequate

         28 placements and services that simply intensify the child’s educational and emotional challenges.
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ASSOCIATES                                                                  MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
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             1 The experiences of Ronald F. (Exhibit A, p. 5) and Charles M. (Id.,, p. 21) illustrate the all-too-

             2 common practice of random placements and the non-systematic provision of services.

             3                 2.      Conduct That Results in the Denial of FAPE

             4          32.    The denial of FAPE takes many forms. Plaintiffs’ members, for instance, tread a

             5 thin line in seeking to maximize their children’s educational opportunities. Passivity inexorably

             6 leads to inaction whereas aggressive advocacy can often result in administrative blowback.

             7 MHUSD, for instance, falsely reported Wade P. (Exhibit A, p. 1)—the son of committed parental

             8 advocates—as truant knowing that past truancy automatically disqualified Wade from the school

             9 best suited to his needs.

         10             33.    Some LEAs have effectively institutionalized parental intimidation by initiating

         11 costly due process hearings whenever a parent seeks an independent educational evaluation

         12 (IEEs) or other services not offered by the LEA. The prospect of an expensive and prolonged

         13 due-process proceeding pressures many parents into “consensually” accepting services far short

         14 of what the child’s disabilities demand.

         15             34.    The coercion implicit in these circumstances has empowered a number of school

         16 districts to demand that the parents sign unconscionable settlement agreements as a condition to

         17 compromise. Settlement agreements that include waivers of essential rights guaranteed by state

         18 and federal law are increasingly common. By signing these agreements, many parents are forced

         19 to waive the fundamental right to request changes to their child’s IEP—the statutory yardstick by

         20 which the child’s educational, emotional and support needs are measured. By waiving that right,

         21 parents implicitly waive the corollary right to request new services as their child’s needs evolve.

         22 Many of the agreements also purport to waive the parents’ right to challenge future misconduct

         23 by the school district. If the school districts are thereby given carte blanche to deprive the child of

         24 future essential services, the settlement plainly has no value at all. The practice reflects the

         25 overwhelmingly superior negotiating power the districts have over parents and the districts’

         26 cynical abuse of this power. The experiences of John H., Charles M. and William H. document

         27 this cynical and illegal practice. Exhibit A. pp. 19-21.

         28
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SAGY LAW                                                                                       FIRST AMENDED COMPLAINT
ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                Filed 04/23/12 Page 13 of 35

             1          35.     The environment in which these settlements are conducted intensifies their

             2 unconscionability. Many of these parents are non-English speakers who are given a limited time

             3 to review a document written entirely in English, though the IDEA requires that the district

             4 provide prior notice to parents in their native language. Very few of the parents have the

             5 resources to retain a lawyer to review a proposed settlement agreement. The restricted time

             6 constraints that the districts often impose in these “take it or leave it” negotiations effectively

             7 moot any possibility of seeking legal guidance in any event.

             8          36.     Worse, many parents give up secondary or tertiary goals for their child in order to

             9 secure their primary goal. The district then entirely ignores its negotiated responsibilities under

         10 the settlement and the parents believe that they have irrevocably waived their right to seek all of

         11 the services to which their child is entitled. The experiences of Fredrick M. (Exhibit A., p. 10)

         12 and Alicia M. (Id., p. 14) illustrate the districts cavalier approach to implementing negotiated

         13 settlements.

         14             B.      CDE AS RESPONSIBLE FOR THE DENIAL OF FAPE

         15             37.     CDE, as the SEA, has the ultimate responsibility for providing FAPE to the school

         16 children of California. To that end, it is charged with the responsibility of monitoring,

         17 investigating and enforcing the provision of FAPE at the local level. CDE has abdicated its

         18 responsibilities at every turn.

         19                     1.      Failure to Monitor

         20             38.     CDE relies on data reported by the LEAs to the California Special Education

         21 Management Information System (CASEMIS) to monitor LEA compliance with the IDEA. The

         22 data is generated twice a year in response to 20 State Plan Performance Indicators (SPPIs):

         23 Indicator 1: “Graduation Four Year Rate;” Indicator 2: “Dropout Four Year Rate;” Indicator 3:

         24 “Statewide Assessments;” Indicator 4: “Suspension and Expulsion;” Indicator 5: “Least

         25 Restrictive Environment;” Indicator 6: “Pre-School Least Restrictive Environment; Indicator 7:

         26 “Preschool Assessments;” Indicator 8: “Parent Involvement;” Indicator 9: “Disproportionality

         27 Overall;” Indicator 10: “Disproportionality by Disability;” Indicator 11: “Eligibility Evaluation;”

         28 Indicator 12: “Part C to Part B Transition;” Indicator 13: “Secondary Transition Goals and
                                                             -13-
SAGY LAW                                                                                         FIRST AMENDED COMPLAINT
ASSOCIATES                                                                   MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 14 of 35

             1 Services;” Indicator 14: “Post-School;” Indicator 15: “Timely Correction of Noncompliance

             2 Findings;” Indicator 16 “Timely Resolution of Written Complaints;” Indicator 17: “Timely

             3 Adjudication of Due Process Hearing Requests; Indicator 18: “Percentage of Due Process

             4 Hearing Requests that Went to Resolution Sessions;” Indicator 19: “Percentage of Mediations

             5 that Resulted in Mediation Agreements;” and Indicator 20: “Timely and Accurately Reporting

             6 State Data.”

             7          39.    Once the LEA responses have been input to the CASEMIS database, CDE

             8 generates three reports: 1) a letter with enclosures to each LEA respecting its “compliance” with

             9 the IDEA that relies only on a selective subset of the indicators; 2) the annual Special Education

         10 Part B State Performance Plan (SPP) and 3) the Part B Annual Performance Report (APR), the

         11 last two of which are submitted to the United States Department of Education (USED) reflecting

         12 the statewide indicator data. The Office of Special Education Programs (OSEP) at USED, in

         13 turn, evaluates California’s reports and provides the state with a letter discussing its findings.

         14             40.    In addition to the SPP and APR, OSEP periodically requests CDE to file a Critical

         15 Elements Analysis Guide (CrEAG) in which CDE identifies, among other things, how its

         16 monitoring system works and how it uses the data it collects to identify noncompliance.

         17             41.    In addition to providing CASEMIS data, every four years each LEA must

         18 complete and submit to CDE a web-based self-review of its success in meeting CDE’s targeted

         19 goals for IDEA compliance. The LEAs have an evident self-interest in performing a self-review

         20 that establishes at least paper compliance with the goals set by CDE.

         21             42.    In response to certain criteria, including a critical mass of parental complaints,

         22 CDE may periodically undertake a Verification Review of the targeted LEA. Once CDE has

         23 identified the areas of noncompliance, it crafts a corrective action plan (CAP) ostensibly designed

         24 to bring the LEA into compliance.

         25             43.    The flawed nature of CDE’s monitoring model and the inadequate manner in

         26 which it implements that model results in the chronic denial of FAPE to California’s school

         27 children with disabilities.

         28
                                                            -14-
SAGY LAW                                                                                       FIRST AMENDED COMPLAINT
ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6           Filed 04/23/12 Page 15 of 35

             1

             2

             3                        a.     Deficient Data Collection.

             4                               i.     Failure to Verify

             5         44.    CDE’s protocol for measuring local compliance with the requirements of the

             6 IDEA starts with the collection of data from the LEAs in response to the SPPIs. CDE uses the

             7 same data to demonstrate compliance with the IDEA to its monitor—the United States

             8 Department of Education, Office of Special Education Programs (OSEP). Both the LEAs and

             9 CDE are accordingly incented to skew the data in favor of compliance. The recent experience of

         10 the Los Angeles Unified School District (LAUSD) offers a compelling example of this intrinsic

         11 bias in action. The LAUSD Monitor found that the electronically input data regarding the

         12 provision of FAPE in the LRE showed substantially greater compliance levels than the students’

         13 actual schedules reflected. The Monitor opined that the discrepancy could “be attributed to

         14 schools simply entering an LRE time to meet th[e desired] outcome.” CDE does not have a

         15 system in place to ensure the integrity and accuracy of the data on which a finding of

         16 noncompliance pivots.

         17                                  ii.    Failure to Meaningfully Solicit Data

         18            45.    Every year, CDE generates statewide data respecting parental participation (SPPI

         19 8). This data is obtained via written surveys and, at times, online surveys. The comparatively

         20 low percentage of responses these surveys generate reflects CDE’s equivocal commitment to

         21 engaging the parents. Instead of mailing surveys to the parents, for instance, CDE permits the

         22 LEAs to send the forms home with the children as the primary mode of transmission. The few

         23 surveys transmitted in this manner that reach their target (only 12 out of approximately 100

         24 parents who participated in a recent Verification Review parent meeting in San Francisco) are

         25 often not completed as the parents are directed to submit the survey to the child’s special

         26 education teacher. Parents are understandably loath to share negative perceptions of the special

         27 education teacher directly with and through the teacher, fearing repercussions that could further

         28 undermine their child’s educational experience. Though nominally anonymous, the districts tell
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SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6              Filed 04/23/12 Page 16 of 35

             1 the parents that if they do not disclose their own names and those of their children, their surveys

             2 will not be considered.

             3          46.    CDE’s reaction to those parents who are actively involved in providing feedback

             4 regarding the services their children receive suggests an even more conflicted commitment. One

             5 Folsom-Cordova parent who had completed the online survey was turned away from the CDE-

             6 sponsored parent meeting because the CDE proctor for the meeting concluded that her online

             7 submission undercut her right to participate in the face-to-face discussions with other parents at

             8 the meeting. In the same vein, at a meeting of parents convened as part of CDE’s recent

             9 Verification Review of the San Francisco Unified School District, the State “facilitators” would

         10 not yield the floor or give the microphone to parents known as dedicated advocates for their

         11 children. In some cases, they went so far as to retrieve microphones from parents who were

         12 criticizing the quality or nature of the services their child was receiving.

         13                              b.    Selective Data Consideration.

         14             47.    Question B of the CrEAG submitted by CDE for FFY 2010 asks: “How does the

         15 State use its database to identify noncompliance?” In response, CDE referenced only 6 of the 20

         16 indicators as entering into its compliance calculus: “CDE uses its CASEMIS database to identify

         17 noncompliance in two ways: 1) SPP calculations for indicators 4a, 4b [suspension and

         18 expulsion], 9 [disproportionality overall] and 10 [disproportionality by disability] are used to

         19 identify districts required to conduct reviews of their policies, procedures and practices related to

         20 discipline and/or disproportionality. This revision may lead to the identification of instances of

         21 noncompliance. 2) CASEMIS data are used to identify noncompliance related to Indicators 11

         22 [eligibility evaluation], 12 [part C and part B transition] and 13 [secondary transition].”

         23             48.    A review of the annual letters CDE sent to the Morgan Hill Unified School District

         24 illustrates CDE’s selective consideration of the Indicators. For the school year 2006-2007, CDE

         25 reviewed only SPPI Nos. 9-13 (disproportionality, eligibility evaluation, Part C to Part B

         26 transition, and secondary transition goals and services), 15 (timely correction of noncompliance

         27 findings) and 20 (timely submission of state data). For 2007-2008, CDE added SPI 4 (suspension

         28 and expulsion rates) to its consideration but, in 2008-2009, it dropped SPPI 4 and 13 from the
                                                            -16-
SAGY LAW                                                                                       FIRST AMENDED COMPLAINT
ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6             Filed 04/23/12 Page 17 of 35

             1 factors it considered in determining an LEA’s compliance. With the exception of

             2 disproportionality which, as discussed below, has never been meaningfully analyzed and

             3 monitored by CDE, none of the key indicators (e.g., provision of LRE, proficiency and graduation

             4 rates) entered into CDE’s calculation of an LEA’s compliance with IDEA.

             5          49.    The limited number of categories that CDE does take into consideration tends to

             6 focus on “paper compliance” with the IDEA rather than the quality of the education California

             7 children with disabilities are receiving. For instance, Indicator 20 measures the LEAs’ success in

             8 “timely and accurately” reporting state data. Indicator 11 reports the percentage of children

             9 whose eligibility for special education was determined within 60 days of receipt of parental

         10 consent for evaluation. Though speedy implementation of the IDEA’s regulations and the timely

         11 reporting of data to CDE are worthy goals, they do not go to the more illuminating and seminal

         12 question of the quality of the special educational experience itself.

         13                            c.     CDE’s Failure to Act on Known Violations.

         14             50.    Leaving aside CDE’s selective consideration of the SPPIs, both the district-by-

         15 district and the aggregated statewide data overwhelmingly establish that California’s students

         16 with disabilities are not receiving FAPE. The statewide statistics for graduation rates, the

         17 provision of education in the least restrictive environment, the proficiency levels in Math and

         18 English Language Arts and the proportionality of racial and ethnic representation in special

         19 education, among many other indicators, fall far short of what the law demands. Yet CDE has

         20 failed to act.

         21                                   i.     Data Showing Noncompliant Graduation Rates

         22             51.    By its own admission, CDE does not consider SPPI 1, which solicits graduation

         23 rates in the special education population. Though graduation rates may not illuminate the totality

         24 of the child’s educational experience, it affords an objective measure of how and if the child

         25 educationally progressed. The exclusion of this data from the noncompliance calculus does not

         26 serve the goals of the IDEA or the interests of California’s school children. What limited data

         27 CDE has published suggests the real intent behind the exclusion of graduation statistics: for the

         28 2008 Federal Fiscal Year, for instance, CDE reported a 60.2% statewide graduation rate, far
                                                           -17-
SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6              Filed 04/23/12 Page 18 of 35

             1 below the statistical goal of 83%. Many school districts reported even greater deficits in their

             2 graduation rates than the statewide statistics. For 2009-2010, for instance, Los Angeles Unified

             3 School District reported a graduation rate of 34.5%, even below its drop-out rate of 36.9%. The

             4 Kern High School District reported a similar pattern of the drop-out rate exceeding the graduation

             5 rate.

             6                                ii.     Data Showing Declining Proficiency Levels

             7          52.    CDE fails to consider or judge the LEAs based on Indicator 3c, which reports the

             8 proficiency of children with disabilities in English Language Arts (ELA) and Math—by any

             9 measure, a bright-line indicator of the efficacy of the learning experience. During the period from

         10 2005-2006 through 2010-2011, California never met its own targeted proficiency levels, falling

         11 short by approximately 20% or more each year. CDE’s reported statewide data for the 2008 FFY

         12 (2008-2009), for instance, reflects a 27.5% proficiency rate in Math and a 23.3% ELA

         13 proficiency rate—a far cry from the target percentages of 43.5%. Those numbers improved for

         14 the 2009-2010 school year—38% (ELA) and 38.6% (Math)—but declined for the 2010-2011

         15 school year to 35.5% (ELA) and 36.3% (Math), both years being still well below the mid-50

         16 target percentages. Many districts failed to achieve even these inadequate levels of proficiency.

         17 In 2009-2010, by way of example, SFUSD students scored proficiency levels of only 31.8%

         18 (ELA) and 35.2% (Math); LAUSD’s results were even worse with proficiency levels of 21.1%

         19 (ELA) and 25.7% (Math).

         20             53.    The improvement in the overall statistics, however, masks a disturbing trend,

         21 namely that the proficiency rates of California children with disabilities actually decline over

         22 time as they advance into higher grades. As a result, the proficiency rates for children with

         23 disabilities in high school are much lower. The statewide data for the 2009-2010 school year, for

         24 instance, shows a proficiency rate of 20.5% ELA and a proficiency rate of 19.2% for Math for

         25 high school districts. The statewide high school district proficiency rates for the 2010-2011

         26 school year actually dropped below these levels to 15.5% (ELA) and 15.0% (Math).

         27                                   iii.    Data Showing a Failure to Educate in the LRE

         28
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SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 19 of 35

             1          54.     SPPI 5 elicits data tracking an LEA’s success in integrating children with

             2 disabilities into a general educational environment with their non-disabled peers; that is,

             3 educating children in the least restrictive environment (LRE). There are three components to the

             4 data: a) the percentage of children with disabilities removed from regular class less than 21% of

             5 the time (or, conversely, students mainstreamed 80% or more of the time); b) the percentage of

             6 children removed from regular class more than 60% of the time (conversely, the percentage

             7 mainstreamed less than 40% of the time); and c) the percentage of children in separate schools or

             8 homebound. With the exception of the third metric (total segregation), California has never met

             9 its targets for this SPPI. More to the point, the statewide data for the first two integration metrics

         10 have shown little improvement over the years and, indeed, an occasional decline.

         11             55.     For 2005-2006, CDE reported that 50.4% of children with disabilities spent more

         12 than 80% of their time in a regular classroom (SPPI 5.a) and 24.2% spent less than 40% of their

         13 time in a regular classroom (SPPI 5.b). Five years later (2010-2011), CDE reported that 52.5%

         14 spent more than 80% of their time in the regular classroom and 22.4% spent less than 40% of

         15 their time in a regular classroom. This shows an improvement of only 2.1% for SPPI 5.a and an

         16 even smaller improvement of 1.8% for SPPI 5.b. over a five-year period. This minimal

         17 achievement is dwarfed by the increasing gap between the actual results and CDE’s targeted

         18 goals. For 2010-2011, the statewide target for SPPI 5.a was at least 76% (roughly 25% above the

         19 actual results) and the statewide target for SPPI 5.b was less than 9% (roughly 13% below the

         20 actual results).

         21             56.     The results for individual school districts on SPPIs 5.a and 5.b fall even further

         22 short of the CDE’s targets. For 2009-2010, SFUSD reported that only 8.9% of its students in

         23 special education spent more than 80% of the time in general education (SPPI 5.a) while 71.2%

         24 spent more than 60% of their time removed from general education (SPPI 5.b). For this year,

         25 Folsom-Cordova Unified School District reported results of 47.4% (SPPI 5.a) and 25.0% (SPPI

         26 5.b). Looking at SPPI 5.c, which represents the percentage of special education students wholly

         27 segregated, reflects a system substantially out of compliance: both LAUSD and Morgan Hill

         28 Unified reported 10.3% and 9.1%, respectively, considerably above the statewide target of 3.9%.
                                                            -19-
SAGY LAW                                                                                        FIRST AMENDED COMPLAINT
ASSOCIATES                                                                  MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                         Filed 04/23/12 Page 20 of 35

             1                                       iv.      Data Showing Disproportionality

             2            57.      Indicators 9 and 10 track the percentage of racial and ethnic disproportionality in

             3 special education, both overall (SPPI 9) and by category of disability (SPPI 10). Briefly stated,

             4 the disproportionality analysis is intended to identify and correct the documented reality that

             5 certain racial and ethnic groups are over-represented in categories of disability for which fewer

             6 services are offered and under-represented in those categories offering a far broader level of

             7 support.

             8            58.      Children diagnosed with Autism, for instance, are generally overseen by aides with

             9 more advanced training and receive specific supports for inclusion in general education.
                                                                 3
         10 Conversely, children diagnosed as “Mentally Retarded” will generally not receive these services

         11 and will be placed in segregated classrooms, generally Special Day Classes (SDCs). Because the

         12 costs of educating children with Autism reflect the additional services, Districts resist the

         13 diagnosis. The higher percentage of whites in that category is often a reflection of their parents’

         14 better command of the English language, superior resources, sophistication in working the

         15 system, and willingness to fight the district. Conversely, the greater percentage of African

         16 Americans and Hispanics in the other categories often reflects the challenges their parents face in

         17 marshalling the resources, time and energy to fight the district.

         18               59.      These and other discriminatory patterns of disproportionality are borne out by

         19 CDE’s own calculations. Using a judicially created statistical model, known as the e-formula,

         20 CDE’s calculations show serious problems with the manner in which ethnic children with

         21 disabilities are being identified and supported educationally in California. Plaintiffs are informed

         22 and believe that Caucasian students are disproportionately diagnosed with Autism, Hispanics are

         23 disproportionately diagnosed as Mentally Retarded, and African-American children are being

         24 disproportionally categorized as having emotional disturbances.

         25
                 3
         26 Disabilities, the SPPIs developed and usedgenerally continue toused to describe individuals who have Intellectual
             Though the term “Mentally Retarded” is             no longer
                                                       by CDE               categorize certain individuals as “Mentally
                 Retarded.” Plaintiffs use the term for consistency’s sake only; they mean no disrespect to those children who are
         27 Intellectually Disabled.

         28
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SAGY LAW                                                                                                    FIRST AMENDED COMPLAINT
ASSOCIATES                                                                            MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6              Filed 04/23/12 Page 21 of 35

             1          60.    CDE, however, has elected to ignore the legally mandated e-formula calculations

             2 in favor of its own, more relaxed model, called the “disparity index.” This is calculated by

             3 dividing the number of students within each ethnic category by the total number of all students in

             4 that ethnic category, then comparing that percentage to the percentage each category represents in

             5 the special education population (e.g., the percentage of African Americans receiving special

             6 education relative to the total number of African Americans in the district.) The “disparity” index

             7 is the range between the lowest and highest group percentages and is compared against a

             8 benchmark ratio, set by the CDE, which is no less than 5%. OSEP recently advised CDE that the

             9 disparity index formula was not consistent with federal requirements regarding identification of

         10 LEAs with significant disproportionality. CDE has revised its methodology to include an

         11 “alternative risk ratio.” Consequently, in 2010-2011 CDE identified substantially more

         12 disproportional districts: disproportional districts under SPPI 9 jumped from 26 to 34 (an

         13 increase of 23%) and disproportional districts under SPPI 10 went from 71 to 101 (an increase of

         14 roughly 30%). Significantly, under CDE’s current methodology, as with the past “Disparity

         15 Index” methodology, those districts that are mathematically disproportional under both the e-

         16 formula and the disparity index/alternative risk ratio are nonetheless considered compliant by

         17 CDE so long as the district has compliant practices and policies. Indeed, the policies and

         18 practices trump the districts’ actual practices. The SPPI 10 data for MHUSD showed that it was

         19 mathematically disproportional in up to 14 different data cells for two consecutive years. This

         20 information, however, did not trigger any corrective actions from the CDE.

         21                                   v.     Post-Graduate Results

         22             61.    SPPI 14, which measures post-graduate results, also fails to capture the attention

         23 of, or generate remedial action by, CDE. The statistics for SPPI 14 measure the percentage of

         24 those children with disabilities who have graduated and who report competitive employment,

         25 being in post-secondary education, or both. A bright-line indicator of the districts’ success in

         26 educating students with disabilities, SPPI 14 would seem to be a logical starting point for CDE’s

         27 monitoring priorities yet it is not even considered in CDE’s initial compliance evaluation.

         28
                                                           -21-
SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6              Filed 04/23/12 Page 22 of 35

             1          62.    That CDE has not made SPPI 14 a part of its compliance calculus is explained by

             2 the dismal statistics. CDE set a relatively modest target for this SPPI of 68% for the 2009-2010

             3 report and 69% for the 2010-2011 report. Only 29% of the graduating students statewide from

             4 these two years reported having met one of the criteria (7975 out of 27,157 per the 2009-2010

             5 report; 9318 out of 32,099 per the 2010-2011 report). The rates for some of the school districts

             6 fell even further short of the CDE goal: Folsom-Cordova had a rate of 28%; Morgan Hill’s rate

             7 was 19%; and LAUSD had a rate of only 13.5%.

             8                         d.      Verification Reviews as Showing “Paper” Compliance.

             9                                i.      MHUSD’s Experience

         10             63.    CDE periodically conducts Verification Reviews (VR) of school districts.

         11 Plaintiffs are informed and believe that the review is conducted on-site and that the intent is to

         12 monitor compliance in the classroom and through one-on-one interactions with teachers, service

         13 providers, parents and children. The intent is rarely realized as CDE typically reviews the

         14 district’s paper records instead. Where the records warrant, CDE issues a Corrective Action Plan

         15 (“CAP”) that, again, calls only for paper compliance and occasional online training.

         16             64.    The inefficiencies and ultimate ineffectiveness of CDE’s paper compliance model

         17 is illustrated by the recent experience of the Morgan Hill Unified School District (MHUSD).

         18 Between November 17 and November 20, 2008, CDE conducted a Verification Review of

         19 MHUSD’s compliance with federal and state laws related to the education of children with

         20 disabilities. As part of the MHUSD Verification Review, CDE held a parent input meeting with a

         21 moderator—a mandatory element of the Verification Review. In the resulting January 16, 2009

         22 Verification Review Report (“VRR”), the CDE found that MHUSD was systemically

         23 noncompliant at virtually every level of the state and federal legal mandate that each child with a

         24 disability be provided FAPE in the LRE. Among the many other areas of noncompliance, the

         25 VRR identified the following:

         26             Identification and Assessment: CDE found that there was no evidence that MHUSD

         27             had informed parents of their right to obtain, at public expense, an independent

         28             educational assessment, if the parent disagreed with the assessment conducted by the local
                                                           -22-
SAGY LAW                                                                                       FIRST AMENDED COMPLAINT
ASSOCIATES                                                                 MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6             Filed 04/23/12 Page 23 of 35

             1         educational agency as required by 34 CFR §300.504(c)(1), 30 EC §56329(b). VRR Item

             2         No. 2-1-2.2.

             3 //

             4 //

             5         IEP Scheduling and Participation: CDE found that there was no evidence that MHUSD

             6         had:

             7            •    developed and implemented an IEP within 60 days of obtaining written parental

             8                 consent to the Assessment Plan as required by 20 USC §1414(a)(1)(C)(i)(I), 34

             9                CFR §§300.535(b), 300.343(b), 30 EC §56344 (VRR Item No. 3-1-1.1);

         10               •    developed and implemented an IEP that includes a description of how the

         11                    student’s progress toward meeting the annual goals will be measured as required

         12                    by 20 USC §§1414(d)(1)(A)(viii), 1414(d)(1)(A)(i)(III), 34 CFR §300.320(3)(ii),

         13                    30 EC 56345 (VRR Item No. 3-2-7);

         14               •    developed and implemented an IEP that describes when periodic reports on the

         15                   student’s progress in meeting the annual goals will be provided (id.);

         16               •    developed and implemented an IEP that describes how the student’s parents will

         17                    be regularly informed of the student’s progress in reaching annual goals (id.);

         18               •    included as part of the IEP team a general education teacher as required by 20

         19                    USC §1414(d)(1)(B)(ii), 34 CFR 300.321(a)(2), 30 EC §56341(b) (VRR Item No.

         20                    3-4-1.2);

         21               •   included as part of the IEP team the behavioral intervention case manager

         22                   whenever the IEP team reviews the functional analysis assessment and, if

         23                   necessary, develops a behavioral intervention plan as required by 5 CCR §3052(c)

         24                   (VRR Item No. 3-4-1.9);

         25               •   invited the student to attend the IEP meeting as required by 34 CFR

         26                   300.322(b)(2)(i)(ii), 30 EC 56341(VRR Item No. 3-6-6); or

         27               •   obtained the parents’ consent before excusing a member of the IEP team from

         28                   attending an IEP meeting involving a modification to, or discussion of, the
                                                          -23-
SAGY LAW                                                                                     FIRST AMENDED COMPLAINT
ASSOCIATES                                                               MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6        Filed 04/23/12 Page 24 of 35

             1              member’s area of the curriculum as required by 20 USC 1414(d)(1)(C)(ii), 34 CFR

             2              300.321(e)(2), 30 EC 56341(g)&(h). VRR Item No. 3-4-4.

             3

             4

             5

             6

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             9

         10

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                                                      -24-
SAGY LAW                                                                                FIRST AMENDED COMPLAINT
ASSOCIATES                                                          MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6             Filed 04/23/12 Page 25 of 35

             1         Assistance for Limited English Participants: CDE found that there was no evidence

             2         that MHUSD had:

             3             •   considered the language needs of a student with limited English proficiency as

             4                 those needs related to the IEP as required by 20 USC 1414(d)(3)(B)(ii), 34 CFR

             5                 300.324(a)(2)(ii), 30 EC §§56345(b)(2), 56341.1(b)(2) (VRR Item No. 3-5-8); or

             6             •   included linguistically appropriate goals, objectives, programs and services in the

             7                 IEP. Id.

             8         Placement and Related Services: CDE found that there was no evidence that MHUSD

             9         had included the parents and at least one general education teacher, not less than one

         10            special educator, and an LEA representative in all placement decisions made by the IEP

         11            team as required by 20 USC 1414(d)(1)(B)(ii), 34 CFR 300.327, 30 EC §§56304, 56341,

         12            56342.5. VRR Item No. 5-1-5.

         13            Least Restrictive Environment: CDE found that there was no evidence that MHUSD

         14            had considered the provision of positive behavior interventions and strategies to address a

         15            student whose behavior impedes his or her own learning in the LRE or the learning of

         16            others, as required by 20 USC 1414(d)(3)(B)(i), 34 CFR 300.324(a)(2)(1), 30 EC

         17            56341.1(b)(1). VRR Item No. 3-5-7.

         18            Extended School Year (ESY) Services: CDE found that there was no evidence that

         19            MHUSD had provided extended school year services as required by 34 CFR 300.106, 30

         20            EC 56345(a)(4). VRR Item No. 4-1-12.14.

         21            Transition Planning and Services: CDE found that there was no evidence that MHUSD

         22            had developed IEPs to be in effect when the student turns 16 (or younger as deemed

         23            appropriate) that, among other things:

         24               • included courses of study designed to facilitate the transition from school to post-

         25                    secondary life (VRR Item No. 3-6-1);

         26               • described needed transition services focused on improving academic and

         27                    functional achievement to facilitate the transition (VRR Item No. 3-6-2);

         28               • contained measurable post-secondary goals based on age-appropriate transition
                                                          -25-
SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                Filed 04/23/12 Page 26 of 35

             1                   assessments related to training, education, employment and, where appropriate,

             2                   independent living skills (VRR Item No. 3-6-2.1.2); and

             3               •   were reviewed annually as required by 20 USC §§1414(d)(4)(A)(ii)(cc) (AA) and

             4                   (BB), 34 CFR 300.324(b)(1)(i). VRR Item No. 3-6-2.2.

             5         Infant Services. CDE found that there was no evidence that MHUSD had:

             6               •   conducted all evaluations and assessments of infants and toddlers in natural

             7                   environments whenever possible as required by 17 CCR 52084(e) (VRR Item No.

             8                   8-2- 1.7);

             9               •   completed all evaluations and assessments of infants and toddlers within 45 days

         10                      of the date that the LEA received a referral as required by 34 CFR 303.321(e)(2),

         11                      17 CCR 52086(a) (VRR Item No. 8-2-5);

         12                  •   included a statement of the measurable results or major outcomes expected to be

         13                      achieved for the infant or toddler and their family in each student’s

         14                      Individualized Family Service Plan (“IFSP”) as required by 20 USC 1436(d)(3),

         15                      34 CFR 303.344(c), 14 GC 95020(c), 17 CCR 52106(b) (VRR Item No. 8-4-9.3);

         16                      and

         17                  •   provided home visits as required by 30 EC 56426.2(d). VRR Item No. 8-5-10.

         18            65.       Although the Verification Review of MHUSD revealed widespread, systemic

         19 violations of federal and state law, CDE did not take the actions necessary to ensure that MHUSD

         20 students with disabilities would be provided FAPE. Instead, CDE imposed an inadequate

         21 corrective action plan that focused on the District’s “paper” compliance with the IDEA and other

         22 applicable laws.

         23            66.       Namely, even though the findings of systemic violations were based on a review

         24 of actual student records and not merely upon existing MHUSD policies and procedures, CDE

         25 required MHUSD only to provide evidence that it had compliant policies and procedures.

         26 Specifically, the District was only obliged to verify that it had notified administrators and staff of,

         27 and that it provided training on, these policies and procedures. MHUSD could demonstrate

         28 compliance with these requirements by providing CDE with written evidence of pre-existing (and
                                                             -26-
SAGY LAW                                                                                         FIRST AMENDED COMPLAINT
ASSOCIATES                                                                   MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6              Filed 04/23/12 Page 27 of 35

             1 demonstrably ineffective) policies and procedures, notification and training. It was not required

             2 to provide evidence that those policies and procedures had been implemented, or that they

             3 resulted in the provision of FAPE.

             4          67.    To the extent CDE subsequently sampled actual student records it did so in an

             5 ineffective manner. CDE provided MHUSD with advance notice of the selected records that it

             6 would review, thus ensuring that MHUSD would take the necessary steps to make the records

             7 “clean.” CDE also defined the records to be sampled in such a way as to encourage MHUSD to

             8 switch from noncompliant tactics identifiable by a paper trail to others that would not appear in

             9 the paper files. For example, to escape the requirement that the IEP team include a behavioral

         10 intervention case manager whenever the IEP team considered a functional analysis assessment or

         11 developed a behavioral intervention plan, MHUSD simply stopped including functional analysis

         12 assessments and refrained from developing behavioral intervention plans even where the child’s

         13 disability plainly called for one or both. Likewise, to reduce the number of times the District

         14 could be found to have failed to provide services required by the IEP, the District simply cut back

         15 on the number and type of services called for in IEPs regardless of a child’s documented needs.

         16             68.    CDE concluded that all of the MHUSD violations had been cured before

         17 consulting at all with those in the best position to evaluate the District’s success in correcting the

         18 identified systemic violations—the parents of children with disabilities. Had the CDE consulted

         19 with the parents, it would have discovered that not only had the District not corrected all of the

         20 previously identified systemic violations, but that it had developed a new pattern of violations in

         21 order to demonstrate “paper” compliance with CDE’s corrective actions. It is ironic that CDE

         22 purports to identify the systemic violations through its consultations with the parents, and then

         23 entirely excludes the parents from the process as to whether the violations have been addressed

         24 and cured.

         25             69.    In an April 9, 2010 letter from CDE’s Director, Special Education Division,

         26 without requesting any further input from MHUSD parents and without any evidence of

         27 discernible improvements in the systemic irregularities that continue to impede the provision of

         28 FAPE to children with disabilities in the District, CDE advised MHUSD that it had demonstrated
                                                           -27-
SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6             Filed 04/23/12 Page 28 of 35

             1 correction of all noncompliant findings from the Verification Review.

             2                                ii.    SFUSD’s Verification Review Experience

             3         70.     In mid-2011, CDE undertook an onsite Verification Review of San Francisco

             4 Unified School District (SFUSD or District) in response to an overwhelming number of parental

             5 complaints regarding the provision of special educational services within the District. CDE

             6 issued its Verification Review Report (VRR) on March 23, 2012. The VRR concluded that

             7 SFUSD was out of compliance in all of the 40 categories that CDE undertook to monitor.

             8 Despite that sweeping indictment, CDE developed a corrective action plan (CAP) that is facially

             9 not calculated to bring SFUSD back into compliance.

         10            71.     Instead, in response to each category of noncompliance, the VRR imposed only

         11 the following formulaic corrective actions: 1) the District “must provide evidence that it will

         12 develop policies and procedures that are compliant with state law . . . . ;” 2) the District “must

         13 provide evidence that it has notified administrators and staff of the district’s policies and

         14 procedures . . . . ;” and 3) the District “must provide evidence that it has conducted in-service

         15 training for staff and administrators . . . .” Emphasis added. Even if the District’s development of

         16 compliant policies and procedures reflected a substantive step toward compliance, the CAP

         17 merely requires proof that those policies and procedures “will” be developed.

         18            72.     In addition to these three corrective “actions,” the VRR states that CDE will

         19 sample the IEP records of between 5 and 20 students to test the District’s compliance. Even if the

         20 sampling were meaningful in a system that services over 6,000 children with disabilities, and it

         21 plainly is not, Plaintiffs are informed and believe that CDE may telegraph the focus of its

         22 sampling intent to the LEAs thereby permitting selective corrections of the targeted records. The

         23 CDE review is designed to promote better documents, not a better educational result for the child.

         24                    2.     Failure to Investigate

         25            73.     Under the IDEA and implementing state regulations, parents and children who

         26 have been deprived of FAPE in the LRE may file a Compliance Complaint (“CC”) against a

         27 District. Once filed, CDE is under an obligation to investigate the allegations of noncompliance.

         28 The obvious starting point for implementing its investigative responsibilities is contact with the
                                                           -28-
SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                           Filed 04/23/12 Page 29 of 35

             1 parents of the child or children implicated by the CC. Yet CDE effectively bypasses the parents

             2 in favor of assurances from the LEA that the allegations of the CC are without basis, and in any

             3 event, trumped by its own compliant policies and procedures.

             4              74.      Again, the MHUSD experience is illustrative. On July 28, 2010, plaintiff MHCPA
                                                    4
             5 and a number of student complainants, perceiving the futility of pursuing individual due process

             6 claims in the wake of the District’s response to the Verification Review, including its substitution

             7 of one set of systemic violations for another, filed a Compliance Complaint with CDE. The CC

             8 alleged both further examples of the same noncompliance issues identified in the CDE’s original

             9 Verification Review Report, confirming that MHUSD had not “corrected” those systemic

         10 violations, as well as entirely new systemic violations. Accordingly, CDE had notice that each of

         11 the broader areas of systemic noncompliance that it had identified in its Verification Review

         12 Report had not been cured and that MHUSD had developed and engaged in additional systemic

         13 violations. Among its allegations, the CC demonstrated that MHUSD:

         14                “discouraged parents from seeking an assessment for their children” (CC 2:3);

         15                failed to “inform parents of their right to obtain an independent evaluation at public

         16                 expense” (CC 12:10-11);

         17                “unreasonably delayed Individualized Education Plans” (CC 2:5-6);

         18                was “out of compliance in its failure to hold timely or appropriate IEP meetings”

         19                  (CC 12:22-23);

         20                “conducted inappropriate IEP meetings (untimely; without proper notice; without

         21                  parents’ or crucial team members’ participation; without proper interpretation, or

         22                  other accommodations necessary for a proper IEP meeting)” (CC 2:6-9);

         23                “failed to . . . respond to behavioral challenges” (CC 3:6-8);

         24                ignored or rejected requests for development of positive behavior support plans (CC 3:28-

         25                 4:8 & CC 4:16-18, 25-28);

         26

         27      4
                     The individual complainants’ educational histories are included in Exhibit A.

         28
                                                                      -29-
SAGY LAW                                                                                                    FIRST AMENDED COMPLAINT
ASSOCIATES                                                                              MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 30 of 35

             1         failed to provide transition plans (CC 2:12, 8:15);

             2         failed to “implement a transition plan and prepare [students] for independent life”

             3          (CC 34:10-13);

             4         “failed to offer transition services that comply with the standards set by federal and state

             5          law” (CC 15:7-8);

             6         “ignored its obligation to provide Extended School Year [“ESY”] services” (CC

             7          4:7-8); and

             8         “failed to offer [ESY] services during the summer months necessary to avoid

             9          regress and ease the transition into first grade” (CC 10:1-2).

         10 The CC also provided examples of MHUSD’s failure to provide language-appropriate forms for

         11 parents with limited English proficiency and failure to assess preschool age children.

         12             75.    To provide CDE with concrete examples of how the District continued to deprive

         13 children with disabilities of FAPE, the CC offered details regarding the experiences of individual

         14 students in the MHUSD who had been denied FAPE. The experiences of those students who

         15 have remained in the District have not measurably improved since the CC was filed.

         16             76.    The CC requested that CDE investigate not just the circumstances of the individual

         17 student complainants but also violations affecting “children similarly situated,” the areas of

         18 violation identified in the Verification Review and MHUSD’s “capacity to provide children with

         19 disabilities with FAPE in the Least Restrictive Environment.” In light of the CC’s allegations of

         20 systemic violations and the CDE’s own findings of systemic deficits in the Verification Review,

         21 CDE had the obligation to undertake a thorough investigation of not just the circumstances of the

         22 individual students identified in the CC, but also the availability of a service delivery system in

         23 the District to address challenges of similarly situated students. CDE engaged in no meaningful

         24 investigation nor did it solicit input from any of the Concerned Parents or parents of children

         25 similarly situated. Instead, CDE relied on the District’s self-serving conclusory reports to

         26 summarily reject the CC’s allegations of noncompliance. The CDE’s failure to investigate, to

         27 correct the District’s systemic noncompliance with, and/or provide its own services in satisfaction

         28 of, federal and state laws designed to protect children with disabilities demonstrates CDE’s own
                                                            -30-
SAGY LAW                                                                                          FIRST AMENDED COMPLAINT
ASSOCIATES                                                                    MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6             Filed 04/23/12 Page 31 of 35

             1 noncompliance with these laws.

             2          77.    Had the CDE complied with its obligation to ensure MHUSD’s provision of FAPE

             3 in the LRE by conducting a thorough investigation of the District’s service delivery system

             4 subsequent to the Verification Review or in response to the CC, CDE would have discovered

             5 ongoing systemic violations of the IDEA. Those endemic deficits continue to define the life of

             6 children with disabilities within the Morgan Hill Unified School District today.

             7                 3.     Failure to Enforce

             8          78.    Even where CDE makes a finding of noncompliance, its enforcement model

             9 remains plagued by the paper compliance “escape hatch.” Where a Verification Review yields

         10 findings of systemic violations, and the SFUSD experience of being found noncompliant in every

         11 category is not isolated, CDE is required to develop detailed CAPs designed to bring the LEA

         12 into compliance. The CAPs themselves reflect an emphasis on paper compliance and compliance

         13 with no immediacy—as the SFUSD example shows, CDE demanded only that SFUSD “will

         14 develop policies and procedures that are compliant with state and federal law.”

         15             79.    With one possible exception, it is not CDE’s policy to engage in further field work

         16 in order to verify whether the LEA has properly implemented the CAPs or whether the CAPs

         17 have had the effect of improving the educational results. It instead reviews the noncompliant

         18 LEA’s amended written policies to determine if they comport with the dictates of the IDEA. The

         19 possible exception consists of CDE’s “sampling” of between five and twenty students’ records to

         20 determine whether the district has complied with the pertinent CAPs. Plaintiffs are unsure

         21 whether this work is being done in the “field” but the evidence suggests that the targets of these

         22 reviews, limited in number as they are, are often communicated to the LEAs in advance thereby

         23 negating the purpose and efficacy of a “random” sampling. Even where the district is not notified

         24 of the targets, the nature of the CAPs and the corresponding student populations often provide the

         25 district with internal alerts as to where there compliance activities should begin.

         26 //

         27 //

         28 //
                                                           -31-
SAGY LAW                                                                                      FIRST AMENDED COMPLAINT
ASSOCIATES                                                                MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 32 of 35

             1          80.     In the end, CDE fails in its obligation to enforce the provision of FAPE because it

             2 fails to invoke any of the statutory enforcement tools available to it, even in the face of chronic,

             3 systemic noncompliance. Where there are no repercussions for inaction, there is little incentive to

             4 act.

             5          WHEREFORE, PLAINTIFF ALLEGES THE FOLLOWING CAUSES OF ACTION:

             6                                     FIRST CAUSE OF ACTION

             7                              Failure to Ensure the Provision of FAPE

             8           (Violations of the Individuals with Disabilities Education Improvement Act,

             9                                       20 U.S.C. § 1400 et. seq.)

         10             81.     Plaintiffs reallege and incorporate by reference as though fully set forth herein

         11 paragraphs 1 through 78 above.

         12             82.     By the acts and omissions alleged herein, Defendants have violated Plaintiff’s

         13 members’ children’s rights under the Individuals with Disabilities Education Improvement Act,

         14 20 U.S.C. §§ 1400 et seq., and its implementing regulations at 34 C.F.R. Part 300, and the

         15 California Education Code §§ 56000 et seq. to receive a free appropriate public education in the

         16 least restrictive environment. Defendants failed to ensure the provision of, or directly provide,

         17 FAPE to children with disabilities.

         18                                      SECOND CAUSE OF ACTION

         19                                             Failure to Monitor

         20              (Violations of the Individuals with Disabilities Education Improvement Act,

         21                                          20 U.S.C. § 1400 et. seq.)

         22             83.     Plaintiffs reallege and incorporate by reference as though fully set forth herein

         23 paragraphs 1 through 80, above.

         24             84.     By the acts and omissions alleged herein, Defendants have violated Plaintiff’s

         25 members’ children’s rights under the Individuals with Disabilities Education Improvement Act,

         26 20 U.S.C. §§ 1400 et seq., and its implementing regulations at 34 C.F.R. Part 300, and the

         27 California Education Code §§ 56000 et seq. Defendants failed to appropriately and effectively

         28
                                                            -32-
SAGY LAW                                                                                        FIRST AMENDED COMPLAINT
ASSOCIATES                                                                  MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 33 of 35

             1 monitor the LEAs’ compliance with special education mandates and ensure timely correction of

             2 noncompliance once identified.

             3                                     THIRD CAUSE OF ACTION
             4                                         Failure to Investigate
             5            (Violations of the Individuals with Disabilities Education Improvement Act,
             6                                       20 U.S.C. § 1400 et. seq.)
             7          85.     Plaintiffs reallege and incorporate by reference as though fully set forth herein
             8 paragraphs 1 through 82, above.

             9          86.     By the acts and omissions alleged herein, Defendants have violated Plaintiff’s
         10 members’ children’s rights under the Individuals with Disabilities Education Improvement Act,

         11 20 U.S.C. §§ 1400 et seq., and its implementing regulations at 34 C.F.R. Part 300, and the

         12 California Education Code §§ 56000 et seq. Among other things, Defendants failed to

         13 appropriately and effectively investigate the LEAs’ provision of FAPE to children with

         14 disabilities.

         15                                      FOURTH CAUSE OF ACTION
                                                         Failure to Enforce
         16
                          (Violations of the Individuals with Disabilities Education Improvement Act,
         17
                                                     20 U.S.C. § 1400 et. seq.)
         18
                        87.     Plaintiffs reallege and incorporate by reference as though fully set forth herein
         19
                 paragraphs 1 through 84, above.
         20
                        88.     By the acts and omissions alleged herein, Defendants have violated the rights of
         21
                 Plaintiff’s members’ children under the Individuals with Disabilities Education Improvement Act,
         22
                 20 U.S.C. §§ 1400 et seq., and its implementing regulations at 34 C.F.R. Part 300, and the
         23
                 California Education Code §§ 56000 et seq. Among other things, Defendants failed to
         24
                 appropriately and effectively enforce the educational mandates of the IDEA to ensure that all
         25
                 children with disabilities in the State of California are receiving FAPE.
         26

         27

         28
                                                             -33-
SAGY LAW                                                                                        FIRST AMENDED COMPLAINT
ASSOCIATES                                                                  MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6               Filed 04/23/12 Page 34 of 35

             1                                        FIFTH CAUSE OF ACTION

             2                (Violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794)

             3          89.     Plaintiffs reallege and incorporate by reference as though fully set forth herein

             4 paragraphs 1 through 86, above.

             5          90.     By the acts and omissions alleged herein, Defendants, and each of them, have

             6 violated the rights of Plaintiffs’ members’ children to a public education free of discrimination

             7 based on their children’s disabilities guaranteed under Section 504 of the Rehabilitation Act of

             8 1973, and the regulations promulgated thereunder.

             9                                        SIXTH CAUSE OF ACTION

         10                          (Violations of California Education Code §§56000, et seq.)

         11             91.     Plaintiffs reallege and incorporate by reference as though fully set forth herein

         12 paragraphs 1 through 88, above.

         13             92.     By the acts and omissions alleged herein, Defendants, and each of them, have

         14 violated Plaintiffs’ members’ children’s rights to a free appropriate public education in the least

         15 restrictive environment guaranteed under the California Education Code §56000, et seq., and the

         16 regulations promulgated thereunder, 5 CCR §3000, et seq.

         17                                           RELIEF REQUESTED

         18             Wherefore, Plaintiffs respectfully request the entry of judgment in their favor and granting

         19 the following relief:

         20             1.      Declaring, pursuant to 28 U.S.C. §2201, that Defendants have violated the rights

         21 of children with disabilities protected under the Individuals with Disabilities Education

         22 Improvement Act, 20 U.S.C. §1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29

         23 U.S.C. § 794 and California Education Code §56000 et seq.;

         24             2.      Permanently enjoining Defendants from violating the rights of children with

         25 disabilities protected under the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et

         26 seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and California Education

         27 Code §56000 et seq.;

         28
                                                            -34-
SAGY LAW                                                                                        FIRST AMENDED COMPLAINT
ASSOCIATES                                                                  MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB
                 Case 2:11-cv-03471-KJM-EFB Document 6                Filed 04/23/12 Page 35 of 35

             1          3.      Ordering Defendants to develop, adopt and implement policies that will ensure

             2 that the State of California will more fully and completely fulfill its duties to provide to all

             3 children with disabilities within the State a free appropriate public education in the least

             4 restrictive environment under the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et

             5 seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and California Education

             6 Code §56000 et seq.

             7          4.      Retaining jurisdiction over Defendants until such time as the Court is satisfied that

             8 their unlawful policies, practices, acts and omissions complained of herein no longer exist and

             9 will not recur, and that Defendants are fully and completely fulfilling their duties to provide all

         10 children with disabilities within the State of California a free appropriate public education in the

         11 least restrictive environment or to ensure that such children receive the same.

         12             5.      Awarding Plaintiffs costs, disbursements, and reasonable attorney's fees pursuant

         13 to 20 U.S.C. § 1415(i)(2) and 29 U.S.C. §794A(b).

         14             6.      Granting any other relief as this Court may deem just and proper.

         15 Dated: April 23, 2012

         16                                                    Respectfully submitted,
         17                                                    MORGAN HILL CONCERNED PARENTS
         18                                                    CALIFORNIA CONCERNED PARENTS
                                                               ASSOCIATION
         19

         20                                                    By:    ____/S/__________________________
                                                               Rony Sagy
         21                                                    Stephen A. Rosenbaum
         22                                                    Attorneys for Plaintiffs Morgan Hill Concerned
                                                               Parents Association and Concerned Parents
         23                                                    Association
         24

         25

         26

         27

         28
                                                             -35-
SAGY LAW                                                                                         FIRST AMENDED COMPLAINT
ASSOCIATES                                                                   MHCPA & CPA v. CDE/ CASE #2:11-CV-03471-KJM-EFB

				
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