Should Mum be the Word?
By Frank Gruber
School funding continued to be the hot topic around Santa Monica this
past week, with much talk about what will happen tomorrow night when
the City Council tries again to find a formula that will allow a majority
of members do what they all say they want to do -- give another half
million dollars to the School District.
The council will hear from Winston Braham, the District's former Chief
Financial Officer, probably early in the meeting, and one hopes that
will resolve the issues relating to the confidentiality clause the District
unwisely included in the agreement settling his contract.
The other obstacle to the council's releasing more money to the schools
are the confidentiality clauses the District includes in the settlement
agreements it enters into with the parents of children with learning
disabilities who don't accept the District's proposed education plans.
What I've heard -- rumor-wise -- is that minds will meet over a resolution
that requests that the District review its policies regarding the clauses,
but that otherwise leaves the District alone.
So far this school year, the parents of 88 of the approximately 1,500
District students with disabilities who receive the plans have entered
into settlement agreements. Some of them don't like not being able to
discuss the terms of the settlement, and they have brought their complaints
to the council.
Meanwhile, since writing last week about how much money the District
spends on special education from its general fund, I've received a certain
amount of email from people who believe the District needs to explain
to the public how it came to be that the District spends more than other
districts.
Santa Monica spends about $14,000 per special ed student against the
state average of about $10,000, the contribution per student from the
general education fund is about three times the state average, and while
the average district in the state spends eleven percent of its expenditures
on special education, Santa Monica spends sixteen percent.
Even Beverly Hills, another wealthy district that receives additional
money from local government, manages to keep close to the state averages.
According to the Ed-Data Website [http://www.ed-data.k12.ca.us/],
twelve percent of the Beverly Hills district's expenditures go to special
education.
This might be all well and good if the extra expenditure was satisfying
special ed parents -- we are a wealthy district and we are willing to
tax ourselves (and our tourists) for good purposes. After all, Santa
Monica also spends a lot more on homeless services than other cities.
Yet the 40 percent higher expenditure does not seem to have bought
happiness, although that doesn't necessarily mean the money hasn't paid
for better educational services. I have no idea about how happy special
ed parents are in other districts, but given the history of complaints
from the District's Special Education District Advisory Committee it's
hard to imagine that the parents here are above average in happiness.
But then perhaps the City Council should also ask the District to have
an independent poll conducted of the attitudes of the parents of all
1,500 special ed students, rather than rely on ad hoc testimony from
unhappy parents to gauge the sentiments of all.
Complaints about special education are not unique to Santa Monica.
Given the friction that results when a law that calls for open-ended
expenditures for "appropriate" education runs up against finite
funding for education, it's not surprising that a fast-growing field
in law is the representation of special ed parents.
In one case, the Manhattan Beach school district and the State Department
of Education settled a case for $6.7 million; the district had failed
to provide the services that had been found to be appropriate in an
administrative hearing.
As for the confidentiality clauses, I am still mulling over the idea
I floated last week that the District make public the terms of all its
settlement agreements, so that both parents of disabled children and
the public know (i) what the District will pay for, and (ii) where the
money is going.
I've heard the District's argument that this will make every settlement
a precedent and that parents (and their lawyers) will then seek more
based on what other parents got. In particular, to avoid the costs of
litigation, the District sometimes enters into settlements that involve
reimbursing parents for experimental services that the District might
not generally consider proven and appropriate.
But I wonder if this strategy can be effective, given that the lawyers
who represent parents of special ed kids are, obviously, aware of the
settlements. The lawyers may not be allowed to publicize specific settlements,
but you can't put a wall around knowledge. Not only do individual lawyers
know the terms of settlements they have negotiated, but lawyers talk
to each other, and word gets around.
On the other side of the coin, however, if the District chooses not
to enter into settlement agreements without the confidentiality clause,
that could be bad for those parents who just want to make an appropriate
deal for their kid and move on, confidentiality clause or not. That's
because recent legislation and a Supreme Court decision have increased
the risk to parents who choose to litigate.
In 2004 Congress amended the Individuals with Disabilities Education
Act (IDEA), the law that requires districts to provide free and appropriate
educations to children with learning disabilities. The amendments encourage
mediation and settlements, but also added a provision that allows school
districts to recover attorney fees from parents or their attorneys for
bringing frivolous or harassing complaints.
Then in 2005, the U.S.
Supreme Court ruled that in an IDEA case where the evidence is balanced,
the "burden of persuasion" falls on whichever party brought
the case -- usually, in IDEA cases, the parents of the student. While
the number of cases where the evidence is in perfect "equipoise"
is probably small, the practical effect of this case is that if a school
district conscientiously creates a record to back up the educational
plan it proposes for a child with a disability, the child's parents
are going to have the burden of proof to show that the plan is inadequate.
So far, given the small number of Santa Monica/Malibu cases that go
to hearing, it appears that the District has not pursued this advantage.
The District has reduced its outside attorney costs by 90 percent in
recent years. Both the District and parents should have good reasons
to settle cases, as both sides should want to avoid legal fees and uncertainty.
Before the City Council urges the District to eliminate the confidentiality
clauses, and before the District does so, there needs to be a thorough
discussion about whether doing so would lead to more cases going to
hearing, and what the impact of that would be.
* * *
Longtime readers know that a few years ago the Planning Commission
furnished me with material for many columns. Now I can't remember the
last time I wrote about the commission.
What a different three new commissioners make.
With the replacement of Kelly Olsen, Geraldine Moyle and Arlene Hopkins
by Terry O'Day, Gwynne Pugh and Hank Koning, the Commission entered
into a stable and -- let's be candid -- more rational era. Appeals of
Commission actions to the City Council were once common and controversial,
but there have been few such controversies to write about in recent
years.
The Commission has also done a good job quietly overseeing the land
use and circulation element update process.
But there is some news about the Commission coming up, namely that
it's about to undergo significant change in personnel. Two two-term
commissioners, Darrell Clarke and Barbara Brown, are reaching the ends
of their tenures June 30, and the council will be voting on their replacements
soon. (But if history is a guide, the council won't do so right away
and Mr. Clarke and Ms. Brown can expect to serve a little longer until
their successors are appointed.)
These openings seem to have gone largely unnoticed so far. The City
Clerk's website shows only two applicants for the positions. Interestingly,
however, one of them is Gleam Davis, who ran unsuccessfully for City
Council in 2006.
I'm sure more applicants will appear once word gets around of the openings.
Speaking as a former commissioner, it's a job that can be both satisfying
and a lot of fun.
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