The 14-year-old boy, who was not named in the suit, was expelled nearly a year ago for bringing a 2-inch pocket knife to school. Acting under the Oakley Union Elementary School District's zero-tolerance guidelines, the student was immediately suspended by school officials and subsequently expelled.
While all parties agree that the student was wrong to bring the knife to school, and therefore subject to disciplinary action, the suit argues that he should not have been expelled, and that legal protocol for students with disabilities was not followed.
"School rules apply equally to all students. However, before you can discipline or expel a student with disabilities you have to provide due process, and they did not do that," said Rhoda Benedetti, one of the attorneys representing the boy's family.
State and federal law states that due process for students with disabilities requires an informal meeting of the student's Individual Education Plan (IEP) team, where the student's educational record, among other items, is considered before disciplinary action is taken.
The purpose of the meeting is to determine if the incident occurred because of the student's disability, or if the behavior was facilitated in some way by neglect on the part of the school district.
According to Benedetti, that meeting never occurred.
"They didn't do this," she said. "Instead, they called the mother, told her to bring in her son, and the school counselor made a report on his own and concluded that the student's conduct was not related to his disability or school district failure. This was all done prior to the (IEP Team) meeting, which is totally in violation of the law. … The psychologist cherry-picked and left out everything that was relevant."
School Superintendent Rick Rogers disagreed, saying, "We are absolutely in compliance and have done everything required."
Last fall, mediation between the family and the school district was conducted, but was unsuccessful, he said.
"The lawyer said that mediation failed, and that is accurate," said Rogers. "But what she left out was that there were three to four days of hearings with witnesses before an impartial third party. … A decision was rendered that was favorable to the district."
Benedetti said that despite repeated efforts by the student's mother to secure ongoing educational options, which the district is required by law to provide for special education students, none was forthcoming. According to Benedetti, the single mother, who works full time, has been forced to secure private tutoring for the student.
As the number of disabled students in California's education system increases, the issue of how to provide services and protections for them intensifies. The number of California students in public special education programs has risen 27 percent to nearly 700,000 since l993, according to the state Department of Education. Each year, the federal government spends more than $1 billion serving the needs of California's special education students.
As school districts with limited resources struggle to accommodate the increase in students with special needs, and parents become more assertive in fighting for their children's rights, more and more disputes are being settled in court.
"Yes, there are more and more lawsuits being filed within the districts, because students' needs are not being met," said Lisa McBride, the mother of an autistic son and co-founder of Find A Way, an autism support and advocacy organization. The Discovery Bay resident is also a schoolteacher.
"And in many ways, school officials' and districts' hands are tied, because there just aren't enough dollars to go around," McBride said. "But dealing with special ed kids needs to be a group and team effort. We all need to help each other."
Maryann Hussey, Oakley Assistant Superintendent of Student Services, said the district serves nearly 700 special education students out of a student population of 4,500. She believes that her district is very much in tune with the growing and diverse needs of its special needs population.
"The irony of this whole thing is that the services that we provide in the special ed arena are unbelievable," said Hussey. She added that some parents have told her they moved to Oakley specifically for the special education programs they provide. "We have added a number of new programs."
The expelled student, who, according to the lawsuit, has severe Attention Deficit Hyperactivity Disorder, severe learning disabilities as well as severe social reasoning and social skills deficits, has been a special education student since l993.
Attorneys are seeking an injunction order to ensure the district complies with state and federal law. They also want the student to be re-enrolled and placed in special education programs, in which the attorneys claim the student was not participating prior to the expulsion. The suit also seeks compensatory services for the student's tutoring.
"The Oakley district has just ignored this student's needs," said Benedetti. "And when he broke a rule, they just drummed him out."