BL Special Report by BenitoLink reporter Leslie David
A lawsuit originally filed in San Benito County Superior Court two years ago on behalf of an autistic student whose mother claims was mistreated and injured while at Rancho San Justo School, is now slowly progressing in federal court. “Leyva vs. Hollister School District” was filed on behalf of a special education student who “qualifies for special ed under autism,” according to Ruderman and Knox, a Sacramento law firm that handles special education cases.
The law firm representing the school district disputes most of the claims being made against it, and employees named in the suit were either unavailable or unwilling to comment on the claims.
The student, who is called “B.J.” in the lawsuit, comes from a Spanish-speaking household and, according to the complaint filed in federal court, “suffers from multiple development deficits that substantially limit his major life activities of, inter alia (meaning: among other things), communication, academics, behavior, and social/emotional functioning.”
B.J. had been in a small-group special education class at Rancho San Justo Middle School learning and involved in class activities with other students throughout the 2012-13 school year. In court documents, Ruderman and Knox attorney, Daniel Shaw, states that school records showed B.J. was a seventh-grader, was “good at writing and coloring, could write his first and last name, could fill in a number chart to 100.” In another example, Shaw wrote, “In the area of group instruction, it was noted that Plaintiff could ‘actively’ participate in group instruction for fifty minutes at a time…” (Italics in original document).
Angela Draper was B.J.’s seventh-grade teacher in 2012-13. In a recent interview, Draper explained that an autistic student like B.J. requires a teacher to take time to get to know him and earn his trust. She said, “I remember B.J. extremely well. I bonded with him. He could be extremely difficult but B.J. basically listened to me and responded to me.” Draper described him as very energetic, “like Tigger,” she said. She explained that she would take him on walks, garden or do a little recycling to help him expend energy. When asked if he had to be restrained when he was her student, Draper told BenitoLink, “I never restrained him that whole time. Not once.”
On the last day of school in 2013, Draper was not notified that her small special ed class was suddenly disbanded. What had been touted by HSD as a successful severely handicapped class was broken up and aside from B.J., the seven or eight students were dispersed to other teachers for the coming year.
At the start of the 2013-14 academic year, B.J. was assigned to a “severe handicapped special day class” at Rancho San Justo Middle School, but according to Ruderman and Knox, he was instead isolated from the other students and no longer received “equal access to public education.”
The lawsuit was originally filed in San Benito County November 2014. Several months later, Ruderman and Knox filed in U.S. District Court a First Amended Complaint for Relief for their client, Rosalinda Leyva, a migrant worker and B.J.’s mother. Case documents allege violations of the Americans with Disabilities Act, Rehabilitations Act of 1973 Section 504 (applying to an entity that receives federal funds), negligent supervision, negligent infliction of emotional distress and violations for the Unruh Act, which relates to civil rights.
The plaintiff’s attorney, Shaw, claims that in 2013-14, B.J.’s eighth grade year, the student, “was removed from his assigned special day class every morning at or around 8:00 am (a half hour after the start of the school day) and escorted by two aides to a room, apparently known as the ‘pod room,’ which adjoined his assigned classroom. In the pod room was a small containment area built with cubicle walls. Shaw describes it in court papers saying that B.J. could not see out of it when standing in the cubicle, that it was small enough that he had to curl up when he was on the floor and that there were no chairs for him inside. He mentions a green mat used to wrap around B.J.
The method of control Shaw says the school was using is called “restraint and seclusion.” Within specific guidelines, it is an allowed method of control originally intended for brief, emergency situations where the child may hurt himself or others. In California, parents of special education students must be informed when restraint and seclusion methods are used. For the student’s safety, it is against the law to restrain all four extremities. Paradoxically, California schools are not required to tell parents about restraint and seclusion if the child is not in special education.
Example of a legal hold. (Propublica)
Autism researcher Jessica Butler wrote in a 2015 report presented to the U.S. Senate, “California previously required a state-level data collection but repealed these requirements. Data is now kept only at the local level. Significant concerns have been expressed that data is vastly underreported.” In her report, “How Safe is the School House?”, Butler sited many cases where restraint and seclusion was used as punishment. Butler worked extensively with ProPublica, an online news site that has investigated restraint and seclusion. Bay Area Congressman George Miller has written the Keep All Kids Safe Act legislation on restraint and seclusion.
In a BenitoLink article about the 2014 tort claim (a preliminary claim made prior to filing the lawsuit) and the Hollister School District’s response to it, BenitoLink reporter Melissa Anderson asked Karen Lopes, at the time the district’s director of special education, about the claim. Anderson quoted Lopes as saying:
“Restraint is always the last resort and is seldom used,” Lopes said. “A student that would require this level of care would have a behavior plan written by the teacher, psychologist or behaviorist. The behavior plan must be agreed to by the parent, and all restraints are logged.”
In contrast to Lopes’ statements, Ruderman and Knox attorney Shaw writes that “B.J. was removed from his class every morning” by aides and “R.L., B.J.’s mother, never consented to him being removed from his assigned classroom for the vast majority of his school day; and she never consented to him being confined in the narrow ‘cubicle’ area built for him in the pod. R.L. had no idea any of this was taking place.”
Roger Brown, a special education teacher at Rancho San Justo in 2013-14, posted a BenitoLink Commentary in October 2014 about what he witnessed while instructing nearby. In the commentary, Brown wrote, “This student was kept in seclusion for most of the day. The student had very little contact with peers. The student did not have snack, lunch, or P.E. with classmates. The student spent the day with three adults that were assigned to the student.”
Samantha Crane, an autism specialist with Autistic Advocacy.org, answered a BenitoLink inquiry about the legality of repeated isolation from other students:
“I can confirm that holding a child in a contained area with no qualified teacher, no peers, and no P.E. would violate the federal Individuals with Disabilities Education Act. The IDEA requires schools to provide disabled students with a free, appropriate public education in the least restrictive environment appropriate to their needs, and requires that the setting in which the student spends his or her day be documented in the student’s individualized education plan (IEP). Research shows that all students can learn in mainstream classrooms when given appropriate supports. As a result, our position is that a placement in seclusion rooms or separate classrooms is never the least restrictive environment. The IDEA also requires that students with disabilities have access to a quality education, which includes (at a minimum) a qualified teacher present in their classrooms.”
In a 2014 interview with BenitoLink, Brown stated that one day, he and his students could hear B.J. in the pod “screaming bloody murder” and he “went in to see what was going on.” Brown said, “They had him inside the cubicle. The green mat was from the floor up to his neck, around ‘B.J.’ with two aides holding him, on each side of the mat, having him pinned and a third aide just watching.” Brown says he went straight to the principal, who told him that she was aware of the restraining method being used and that the HSD behavior specialist had ordered it.
Brown stated in his interview with BenitoLink and in court documents that a co-worker told him an aide removed the plastic strips along the top edges of the cubicle exposing metal tacks, apparently in an effort to to prevent B.J. from getting out.
As weeks passed, Brown says he was disturbed by what he called the Hollister School District’s unwillingness to examine its treatment of this student. He wrote in his BenitoLink commentary, “The superintendent, all five school board trustees, the principal of the school involved, the county director of special education, the Hollister School District’s director of special education, and others were all made aware of this injustice laid upon our most challenged students and their families.” Brown says by “most challenged students” he was referring to not only B.J. but Draper’s small class being “randomly split-up.”
Brown says he personally contacted all of these individuals about the situation, including each of the Hollister School Board of Trustees: Ben Flores, Liz Martinez, Lupe Navarro, Pat Moore and Elsa Rodriguez, but says no action came from the board. Brown also said he wrote to the San Benito County Grand Jury, but got no response.
According to attorney Shaw, the non-verbal B.J. began showing signs of distress by hiding things to avoid going to school. In a 2014 interview, Rosalinda Leyva, the child’s mother, told BenitoLink that B.J. had come home with unexplained injuries and torn clothes. She said, “I thought something was wrong because he started hiding his backpack, he hid his shoes, he would throw his clothes up on the roof of the apartments.”
Leyva’s photo of the cubicle she and Brown describe.
Leyva told BenitoLink that she worked the night shift and her husband worked the day shift to be accessible to their son. She explained in Spanish, with a translator present, that another Spanish-speaking parent told her not to send her son to school because he was being abused. Soon after, Leyva arrived at the school and took photos of her child in the pod. She also recorded bruises and “deep” scratches on him.
Leyva said B.J. was bruised. Leyva photo.
B.J. had attended several months at Rancho San Justo Middle School as an eighth-grader but never returned after Leyva found her son in the cubicle and took photos.
Summing up the complaint, Ruderman and Knox attorney Shaw writes, “Plaintiff has suffered severe emotional distress, trauma, embarrassment, physical injuries to his hands, physical injuries to his neck, severe mental anguish, shock, and trauma.”
The Leyva family has moved out of San Benito County and people in communication with the family say it has taken more than two years to get B.J. resettled in school.
Brown resigned from the Hollister School District after teaching for nine years. “It’s very frustrating and disappointing that something like this can happen and people just look the other way while others lie and deny,” he wrote in his Benitolink commentary, adding “My resignation letter says it best; ‘I refuse to work for such an incompetent special education administration and a district that tolerates and ignores such incompetence.’” Today, Brown, says he is disgusted with the whole process and how long it has taken.
Draper, B.J.’s seventh-grade teacher, now works in special education in Monterey County.
The San Jose-based law firm, David and Young, is defending Hollister School District and all individual defendants: Karen Lopes, 2013-14 director of special education; Elaine Klauer, 2013-14 Rancho San Justo principal; Gary L. McIntire, 2013-14 district superintendent; Dennis Kurtz, HSD Assistant Superintendent/Human Resources; Jennifer Adamson, B.J.’s 2013-14 assigned teacher; and Jane Bambrick, HSD behavior specialist.
In his “Answer to Complaint,” David & Young attorney Eric Bengtson denies the vast majority of Shaw’s complaints. For example, he denies that there was a pod and that B.J. had little time with a qualified teacher or that the aides were not appropriately trained. Bengtson also denies that Leyva was unaware of the restraint and seclusion being used on her son.
McIntire has since retired as superintendent and Lopes, the former director of special education, no longer works for the Hollister School District.
Dennis Kurtz, assistant superintendent, responded to BenitoLink by phone saying, “On this particular topic, I can’t say anything. With the lawsuit, I can’t afford to talk about it. As to the other side, I’m never sure why they do what they do.”
Bambrick, Hollister School District’s behavior specialist, and Klauer, now an assistant principal at San Benito High School, did not return phone calls seeking comment on the case.
BenitoLink contacted newly-appointed Hollister School District Superintendent, Dr. Lisa Andrews, for a comment on the lawsuit. Andrews responded, referring BenitoLink to the Davis and Young attorney, Bengtson. In an email, Bengtson said, “We generally do not comment on pending litigation, particularly when it involves minors, as the District always seeks to protect the privacy of its current and former students.”
Asked if the Hollister School District plans to make any changes in its policy in regards to restraint and seclusion, Bengtson responded, “The District does not have a board policy that explicitly addresses restraint and seclusion. Rather, the District’s policy is to follow the Education Code and its provisions regarding restraint and seclusion.”
The federal court system will provide a couple of opportunities for resolution of the case before trial, since it requires all parties to participate in its alternative dispute resolution program, as well as a mandatory settlement conference prior to trial. There is now a Stipulated Protective Order, which prohibits the parties from disclosing information learned through the discovery process.
Leyva vs. Hollister School District is just beginning the “discovery” or research phase of the lawsuit in San Jose Division of United States District Court. If the case were to settle prior to trial, it is possible that a confidentiality provision would prevent the parties from discussing settlement terms.
A jury trial has been set for Aug. 21, 2017, which will be more than three-and-a-half years after the case was filed.