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Walter Covington, Druscilla Covington, As Parents and Guardians Ad Litem of Student Waid Covington v. Yuba City Unified School District

February 4, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


This case arises from a dispute regarding the provision of educational services to Plaintiff Waid Covington ("Student"), a child with special educational needs. Student, along with his parents and Guardians ad Litem, Plaintiffs Walter Covington and Druscilla Covington ("Parents" or "Plaintiffs" unless otherwise indicated) have sued the Yuba City Unified School District ("District") for alleged violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1401, et seq. ("IDEA") in connection with the District's provision of educational services.

Plaintiffs' dispute was originally adjudicated through a four-day due process hearing conducted through the auspices of the California Office of Administrative Hearings, Special Education Division ("OAH"). Through the present action, Plaintiffs take issue with most of the findings made by the Administrative Law Judge ("ALJ") assigned to hear that proceeding.

The District now moves for summary judgment on grounds that the preponderance of the evidence supports the ALJ's findings, with the exception of the ALJ's determination that the District did not provide a Free And Appropriate Public Education ("FAPE") to Student, as required by the IDEA, for the period between August 2005 and January 2007. Plaintiffs, for their part, have filed a cross motion for summary judgment seeking to overturn the ALJ's decision except with regard to the conclusion that no FAPE was offered during the aforementioned 2005-2007 time period. For the reasons set forth below, the Court concludes that the ALJ's findings are proper and should be affirmed.


In October of 2000, when Student was eight years old and in the second grade, the District determined he was eligible for special educational services on grounds that he exhibited both emotional disturbance and specific learning disability.

Thereafter, in February of 2001, Student entered a program for emotional disturbed children operated by Sutter County in Live Oak, California, where he remained until he completed fifth grade at the conclusion of the 2003-04 academic year. Student then attended the District's Andros Karperos Middle School ("AK") in Yuba City for sixth grade during 2004-05, and for the beginning of seventh grade in the Fall of 2005. Student's parents removed him from AK on or about November 17, 2005, and the following day, they unilaterally enrolled Student at the Advent Youth Home ("Advent"), a sectarian, non-public residential school facility operated by the Seventh Day Adventist Church and located in Calhoun, Tennessee.

Prior to the upcoming 2005-06 school year, an Independent Educational Program ("IEP") team meeting was conducted for Student on June 9, 2005, during which the District outlined its proposed placement, support and services for Student as a seventh grader at AK. The IEP determined that Student had unique needs in the areas of written expression, mathematics, and behavior. Special education support was to be provided for over 70 percent of Student's school day, with the remainder occurring in a "mainstream" general education environment. Student was assigned a credentialed special education teacher, Jeff Kuhn, who had over five years' experience teaching or working with students having emotional disturbances.*fn1 Mr. Kuhn was assisted by an aide, making the adult-to-student ration only 1:3-4.

The behavioral support component of Student's IEP*fn2 included a recommendation that school staff assist Student in identifying his frustrations as they occurred, and allowing him to take breaks in designated campus areas (like the library or counselor's office) where de-escalation could occur in a neutral setting. The ALJ determined, at least at the time of the June 2005 IEP, that Student's behavioral support plan had already been implemented for over three months with favorable results.

According to Plaintiffs, shortly after starting seventh grade, Student began experiencing increased anxiety. He performed little academic work, and experienced significant behavioral problems which included a practice of leaving the classroom, and even the AK campus, whenever he became stressed or frustrated. The District attributed this to the cyclical nature of Student's bipolar condition, which it characterized as entailing good days and bad days, with mood swings.

Between September 8 and November 17, 2005, Student ran away from AK on at least five such occasions. Increasingly concerned by such behavior, Parents asked that an IEP meeting be convened for November 3, 2005, after Student had left the school premises three times.

During the meeting, Parents requested that their son be placed at Advent (See Pls.' Mot., 17:15-16 (Parents "expressed their desire to place their son at Advent Home", and "provided literature and cost information..."; see also Pls.' Opp'n, 16:8-10 (noted desire, if not "specific intent" for Student's placement at Advent)). The District denied Parents' request and further denied an alternative request that Student be returned to the ED program in Live Oak. Aside from changing a writing class,*fn3 the District did not discuss any additional revisions to the IEP's goals, services, accommodations or behavioral support plan during the November 3, 2005 meeting. It believed a continuing trial-and-error process was indicated given Student's bipolar condition and his medication changes, which the District believed contributed to his adjustment difficulties more than any failure to implement appropriate behavioral supports.

Student proceeded to leave AK on two more occasions after the November 3, 2005 IEP hearing. On the second occasion, which occurred on November 17, 2005, Student became angry and frustrated and ultimately left campus. He was subsequently apprehended by the police and taken to a Sutter County mental health facility after purportedly telling the officers that they would have to shoot him in order to get him into a patrol car.

That same day, after Student was discharged to his parents' care, Student's father called Doreen Osumi, the District's Director of Special Education, and left a message informing Ms. Osumi of his intent to remove Student from AK immediately. Ms. Osumi called back that same evening and tried to dissuade Parents from immediately removing their son from the district, asking that any decision on placement be placed on hold until the parties could convene another IEP meeting and discuss other possible placements. Nonetheless, the next day, November 18, 2005, Plaintiffs flew to Tennessee and Student was enrolled at Advent.

On November 17, 2005, the District sent a follow-up letter to Parents reiterating its belief that the Student's placement at AK was appropriate, but offering to hold an additional IEP to discuss Parents' concerns and to make any necessary changes. Although the District asked Parents to attend an IEP on three separate occasions between November 17, 2005 and May 17, 2006, their only response was to submit demands for reimbursement, dated January 8, 2006 and May 7, 2006, for the cost of Student attending Advent.

Ultimately, on August 31, 2006, more than nine months after they removed their son from the District, Parents did agree to attend an IEP meeting. At that meeting, Parents again demanded reimbursement. The District, for its part, offered Student the same placement and services that were previously offered and rejected at the November 2005 team meeting.

On October 4, 2006, Parents filed a request for due process alleging that Student's rights under the IDEA had been abridged. As the ALJ who conducted the eventual hearing noted, the only issue raised was a purported substantive denial of FAPE. The ALJ framed that issue as follows:

Did the District fail to offer Student a free and appropriate public education (FAPE) beginning in November of 2005 and continuing through the 2006-2007 school year by failing to meet his unique needs in the areas of core academics and behavior?

Decision, p. 2. The ALJ went on to remark that no other substantive issues were implicated, and that no procedural denials of FAPE were alleged. Id. at p. 3, n. 4. The only remedy sought by Parents in the proceeding was reimbursement for costs they incurred in placing Student at Advent.

On January 19, 2007, before any hearing was held on Parents' due process claim, another IEP was convened. That meeting resulted in an offer by the District to provide services directed both to Student's core academics and his behavior/mental health. Student was offered placement at Live Oak, the same school he had attended before going to AK, in a special day class for students with emotional disturbance.

The administrative hearing itself was held over four successive days between April 10 and April 13, 2007. A decision was issued on June 4, 2007. The ALJ did find that the District's November 3, 2005 IEP was lacking because the measures the District took to deal with Student's increasing behavioral problems early in the 2005-06 school year were neither timely nor sufficient. Consequently, the ALJ determined that FAPE was not met between November 3, 2005 and January 19, 2007.

The ALJ nonetheless did not find reimbursement, the sole remedy requested by Plaintiffs at the hearing, to be appropriate. Moreover, as of January 19, 2007 IEP, the ALJ found that District did offer Student placement, services and supports that met FAPE requirements.

Following their receipt of the ALJ's decision, Plaintiffs instituted the present action in federal Court on September 4, 2007.


The standard for district court review of an administrative decision under the IDEA is set forth in 20 U.S.C. ยง 1415(e)(2). That section requires that the decision be supported by the ...

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