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Parents Realize Successful Closure in Long Legal Battle for Daughter’s Rights

Thursday, August 21, 2014   (1 Comments)
Posted by: Denise Marshall
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On August 1, 2014, the Ninth Circuit Appellate Commissioner issued a decision in favor of the parents awarding long overdue attorney fees in the Ka.D. v. Solana Beach School District case. In 2008 when Kate Doyle, known to the courts as Ka.D was four years old, what her parents wanted was simply what was her right: to attend school with her peers. They knew that Kate, who was diagnosed with autism, would have the best chance to learn and flourish in the general education classroom.

Kyla Doyle, Kate’s mother affirmed, “For our family, this case wasn’t about Public vs. Private school—it was about inclusion vs. segregation for our daughter. They insisted that she move from an inclusive placement where she was already thriving to a segregated classroom that would very likely erase that progress.”

The court acknowledged the child’s right to receive education in the least restrictive environment (LRE) -- which is backed up by almost 40 years of research and is the backbone of federal law under the Individuals with Disabilities Education Act (IDEA).

“The importance of upholding and protecting a student’s right to placement in the general education environment cannot be understated. In its wisdom Congress recognized that special education should be a service rather that a place where children are sent. This notion is important to understanding how a student with disabilities can be successfully included in general education classes and receive special education services in that same setting” said Carolina Watts, Chair of COPAA.

Selene Almazan, Co-Director of the Maryland Coalition for Inclusive Education authored an amicus curiae brief in support of the parents on behalf of COPAA, filed in the Ninth Circuit Court of Appeals in 2011, arguing that Administrative Law Judge (ALJ) found correctly that the school district had denied Kate’s right to receive education in the least restrictive environment, and awarded relief for that violation which included reimbursement for tuition paid to Hanna Fenichel Preschool for the school year 2007-08; along with the services of a one to one aide at school who is trained in Applied Behavior Analysis (ABA) principles and 10 hours per week of intensive ABA services supplied by the Solana Beach School District (Solana Beach). The district court’s decision is consistent with and appropriately applies this Court’s decisions interpreting the “least restrictive environment” provisions of the IDEA.
COPAA Member and counsel for the parents Attorney Maureen Graves stated: “This case has tied up the family and its counsel in a costly, grueling battle for most of Kate’s preschool and elementary years, and has culminated in a legal bill about which the student’s counsel has been warning the District since October 2007. Now the District and its counsel seek to turn the fee award in this case into a source of backlash against students with disabilities and their lawyers.”

IDEA’s fee provisions were designed to ensure equitable outcomes, and are necessary to allow parents to exercise their full legal rights. Parents should not have to be affluent to vindicate their child’s civil rights, and the IDEA’s fee-shifting provision allows parents access to private attorneys who are willing to wait to get paid until they win their case. While Ms. Graves has waited since 2007 for payment, the school district’s attorneys have been paid throughout this time, regardless of success on the merits.

Districts must not be able to bully a family into accepting an inappropriate placement or program. It has been clear in federal law since 1975 and in the Ninth Circuit for several years that a student has a right, unless it’s found inappropriate for that student, to an inclusive education with peers without disabilities. Graves emphasized this saying “At many points along the way, and now in defeat, the District tries to characterize this as a family which preferred ‘private school.’ This is one of its many distortions. In fact, this was a child whose parents tried when she was three to get her into the District’s own Child Development Center.”

Even though this district—unlike most—operated a preschool program, it barred students with disabilities from full participation in that program. And as the initial decision and every level of appeal has confirmed since, that is simply against the law.

Kate is now an 11 year old, living in Utah. She attends her neighborhood school, gets straight A’s, participates in competitive sports, and is doing very well. If they had to do it all over again, they would. Graves said, “The costs to fight this injustice compared to the outcomes Kate realized are worth it.” Kyla Doyle agreed: “Our family is not wealthy by any means—we were only able to see this case to its conclusion because our counsel, Ms. Graves believed in our case, in our daughter, and was willing to work without pay for seven long years. It was frustrating and sad to see the District waste so much money—money that would have been better spent developing more inclusive programs for all their students, rather than on litigating a losing case to the Supreme Court.”

This kind of case has not occurred for Graves in her 20 years of practice. She is hoping this fee award helps other children by deterring unlawful segregation of students with disabilities. Ms. Watts concluded, “COPAA hopes that that Solana Beach parents, taxpayers and Board members and others like them across the country will examine what happened here and make sure it never happens again.”

Comments...

Deborah L. Pepaj says...
Posted Monday, November 24, 2014
I remember way back when Maureen won her argument with the OC regional center about 25 hours of ABA per week; when she single handedly brought down Lozano Smith, and now this. Maureen is more than an inspiration in special ed advocacy, she's a fixture!!

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