Initiated by dissatisfied Morgan Hill parents, a lawsuit that could vastly expand services for disabled students in California, and greatly increase the costs of educating them, is inching toward trial.
The suit, joined by parents throughout the state, asserts that California is shirking its responsibility to ensure disabled students receive what's federally guaranteed -- a free and appropriate education. A federal district judge in Sacramento five weeks ago cleared the way for the suit to proceed.
The suit claims the state's special education system is in "free-fall" and that schools fail to identify and educate students with disabilities in the "least restrictive environment," to map out, implement and stick to individual plans for them, and to include parents in planning.
The suit cites instances in Morgan Hill that it claims result from the state's failure, including a 6-year-old autistic child strapped to her chair, student services eliminated and false reports of truancy that resulted in a student being denied access to a school.
Parents said that when their school districts don't comply with the law, complaining to the state has been futile.
"We realized that's where the problem lies," said Linda McNulty, who with nine other Morgan Hill parents filed the original suit in December 2011.
A victory could possibly force districts to offer more programs to more children with physical, mental and social-emotional disabilities.
As it is now, parents claim, districts put up unreasonable challenges to those seeking special services for their children.
"I fought the district for 10 years," trying to overcome denial of requests for services, McNulty said. "I believe it's systemic in Morgan Hill. There are a lot of great teachers there. But they don't realize that what they're doing is noncompliant" with the law.
About four decades ago, in response to public schools not serving students with disabilities, Congress ordered special education services for those students.
Students are supposed to be tested and offered services or accommodations, which can include more time for test-taking, buses that transport students between home and school, one-on-one aides, small classes and specialized private school.
But for years districts have struggled with the special education mandate, largely because of the added expense and the expertise required. The federal government requires the program but pays only a fraction of its share; the state also pays only a portion, leaving districts to pick up the rest while expressing resentment about the "encroachment" on their tight budgets.
And the expense can be considerable. San Jose Unified spokesman Paul Higgins says the district budgeted $42 million this school year for special education, or 14 percent of the operating budget.
In Morgan Hill, McNulty and other parents began working seven years ago to secure better schooling for their children. After they complained to the state, she said the Department of Education found the district in "systemic noncompliance" in 30 areas. A year later, the state declared the violations corrected.
"This was amazing to parents who saw that nothing had changed," said McNulty, who now lives in El Dorado County. After filing another complaint with the state and being dissatisfied with the response, the group filed suit.
The California Department of Education's legal division would only issue a brief written comment about the lawsuit: "The CDE is confident that once the evidence is actually presented, the court will find that the state's system for providing special education services to students with disabilities in California is compliant with the law."
Likewise, Morgan Hill Superintendent Wesley Smith refused to comment, noting that his district is not a defendant. In an e-mail he wrote, "These parents filed complaints against the district with the California Department of Education and after review the CDE ruled that we were in compliance in almost every instance."
The state siding with districts is at the crux of the problem, parents said.
Nancy Jacques of San Jose, who has joined the lawsuit, has helped parents negotiate for special ed services with school districts. On appeal, "The CDE has been of no help," she said.
Her own mildly autistic son Kenny was denied services in fourth grade. When he was in third grade, the school required her to stay in the classroom to control him; otherwise he would be suspended.
The family settled with the San Jose Unified School District in mediation, and the district paid for placement in a private school for children with high-functioning autism. Kenny progressed so much that he returned to public school in seventh grade, and by then the district had created a program for students like him.
Now at Pioneer High, Kenny Jacques is fully mainstreamed, with access to a social-cognitive class if he needs it, his mother said.
But in many cases, districts' strategy, when parents seek an independent assessment of their children, is to file for a due-process hearing, said Rony Sagy, attorney for the suing parents. Families, especially those who don't speak English, find that intimidating and often can't afford an attorney to represent them. As a result, Sagy contended, diagnosed social, emotional and other problems in children too often aren't being addressed.
But both sides dislike the status quo. "We shouldn't have judges and lawyers deciding which reading program a student should have," said Miriam Kurtzig Freedman, an attorney representing public schools in Massachusetts, where 17 percent of students are placed in special education, compared with 10 percent in California.
She helped devise one less-combative alternative, where the state pays for an independent consultant to suggest an education plan, which parents and the district may choose to accept.
"It helps parties work together," said Freedman, who is also a visiting fellow at Stanford Law School. "It's trust-building and child-focused."
Contact Sharon Noguchi at 408-271-3775. Follow her at Twitter.com/noguchionk12.