Family Takes School Case to Supreme Court

Manhattan Beach is in Southern California. By Cindy Yoshiyama for the Beach Reporter.]
After four years of hearings and litigation, the mother of a 15-year-old autistic boy, said this week her family “has nothing to lose” in the latest round of battles with the Manhattan Beach Unified School District, which filed an appeal with the United States Supreme Court Jan.6.

Although the Supreme Court has yet to determine whether it will hear
the case, what is at stake is years of compensatory education for the
freshman who now attends Mira Costa High School and the district’s
reputation in the lawsuit.
The Porter vs. Manhattan Beach Unified School District case would be
the district’s first in at least 13 years to reach the Supreme Court.
Deborah Porter, whose litigation costs have exceeded $100,000,
claims her son has not been granted 4-1/2 years of compensatory education awarded by the Special Education Hearing Office and the 9th U.S. Circuit Court of
Appeals.

She first filed for a due process hearing in January 1999 when she
felt her then-fifth-grade son was not receiving appropriate reading
services to meet his needs by the district.
She subsequently went through the U.S. District Court, back to the
California Department of Education and on to the 9th Circuit, arguing the
district never followed through with the services it owed him.
A compliance report was issued by the 9th Circuit in March 2001
stating MBUSD was out of compliance and reversed the District Court ruling
dismissing the Porters’ claims.

“It’s been a wild goose chase,” Porter said. “We have played by the
rules all the way through and it’s the district that hasn’t. They have all
the money to pay for attorneys. If the issues don’t get addressed, it’s
just difficult for him to learn to read at 15 or 16. He needs to be in this
school so he can learn academically and do what typical kids do. They’re
not giving him the services he needs.”

Gary Gibeaut, MBUSD’s attorney for the case, said Tuesday the
district filed the petition for Writ of Certiorari with the Supreme Court on a
number of fronts.

“We disagree with the ruling of the Circuit of Appeals that reversed
the trial court decision,” he said. “There are two issues that are of
legal importance; 1) Can a plaintiff go into Federal Court and seek relief other
than from a timely appeal of an order of the Special Education Hearing
Office (SEHO); and 2) Can a plaintiff seek redress for Individuals with
Disabilities Education Act by way of seeking damages through a Civil
Rights statute. We believe the implications go far beyond the Porter case.”
According to Gibeaut, the School District felt the order issued by
SEHO was not specific about what kind of compensatory education had to be
given to the Porters.
“The lawsuit should be dismissed,” he said. “The Porters don’t have
a right to sue in federal court because there hasn’t been a timely appeal of
the SEHO order. The federal court doesn’t have the jurisdiction to hear
the case. There are other avenues to seek relief other than going into federal
court. There has been no failure in providing him with a free and
appropriate education.”

Porter’s attorney, Steven Wyner, said he did not believe there were
grounds for an appeal and that the decisions made by the 9th Circuit,
District Court and the Department of Education did not conflict.
“We proved that her son had been denied a free public education,” he
said. “We sued because they failed to implement an order … We already
went to district court. There’s no case law that supports the position taken by
the School District.”

Wyner added that he planned to amend the Porter’s complaint this
week against the district, seeking additional monetary damages.
“We feel school officials and the school have discriminated against
her son,” he said.

Although no one from the School District could comment on how much
it has spent in defending itself in the Porter case, the costs of special
education litigation and programs has spiked in recent years.
MBUSD spent approximately $7.5 million on its special education
program last year, nearly half of which comes from the district’s General
Fund.

The district spent close to $108,000 in lawyer fees in special
education lawsuits, which does not include the amount it spent in
settlements.

School Board President Tracey Windes said she could not comment on
specifics of the case, but that the district is trying to do what is best
for all of its students.

“The district is going to pursue all options available and of course
we want to provide as many services as we can for any student, but we have
to consider the costs,” she said. “The bottom line is we want to do the
best we can and when that doesn’t work we’ll do as much as we can. We want to
do what’s best for the district. We consider all possibilities and actions.
It’s a matter of getting advice and sometimes it’s a matter of litigation.
This one is unique because it has many considerations. It’s taken much
longer than most cases. We try to stay out of court as much as possible.”

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