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Analysis of Due Process and Mediation
- Expanded Version
Manhattan Beach Unified School District - As of: July 7,
2001
[The
chart entitled “Due Process/Mediation-Expanded Version” is a compilation of
records found on the SEHO due process database through August 15, 2000, as well
as data referenced in MBUSD’s Consent Calendars for cases active during the
1998-1999, 1999-2000 school years through 06/30/00 and continuing into the
2000-2001 school year. The
information provided below summarizes the chart data.
Please note that SEHO records are maintained by calendar year, while
MBUSD records are kept by school year. Also
note that MBUSD’s Consent Calendars make reference to several cases for which
SEHO case numbers were not referenced. As
we do not know the opening dates for these cases, they have been placed at the
end of the chart. These entries may
relate to SEHO cases referenced with a SEHO #].
Background
Data
According
to SEHO’s due process index, cases
were filed against MBUSD as follows:
1995
- 1 case
1996
- 4 cases
1997
- 8 cases
1998
- 4 cases
1999
- 21 cases
2000
- 13 cases [as of 08/15/00]
Total
cases filed with SEHO from 1995 to the
present [10/03/00] - 52 cases
According
to MBUSD Consent Calendars active
cases during our review were commenced in the following years:
1996
- 1 case
1997
- 1 case
1998
- 4 cases
1999
- 21 cases
2000
- 13 cases
No
year indicated - 8 cases
Total
case entries in Consent Calendars - 48
cases
Total
cases currently open with SEHO [as of
10/03/00]: 17
Of
the seventeen (17) cases MBUSD presently has open, ten (10) were filed in 2000.
In addition to any education or legal costs the district pays on behalf
of students and their parents, the district will also incur its own legal fees.
[Note:
To see how cases filed in 2000 compares with those filed in 1999, as of 04/30/99
only 8 new cases had been filed against MBUSD, yet by the end of 1999, there was
a total of 21 open cases against the district. As the current filings against
MBUSD for the year 2000 totaled 9 cases as of 04/30/00, last year’s filings
had already been surpassed by this year’s filings.
Only 1/3 of the year 2000 had elapsed, yet the district was already
almost ½ way to the total number of cases filed in 1999.
As of 10/03/00, the district has had 13 cases filed against it in this
year alone.]
A
total of 15 cases reflected on the attached “Due Process/Mediation” chart
have generated educational and/or legal costs for which MBUSD is responsible:
1
case was filed in 1997 - 97-0535
2
cases were filed in 1998 - 98-0873, 98-1767
5
cases were filed in 1999 - 99-0115, 99-0356, 99-0475, 99-0535, 99-0755
2
cases were filed in 2000 - 00-0174, 00-0683
6
entries which have generated ed and/or legal costs have unknown file dates
because the Consent Calendars do not indicate the case numbers.
According
to the Consent Calendars reviewed for the period 07/01/98-10/03/00, these 16
cases have generated costs as follows:
$482,542.60 in educational costs due to due process, mediation or some
settlement
$ 26,500.00 in families’
legal costs that have been paid by the district.
[Note:
These figures reflect an increase in ed costs over those reflected in the Final
Version of the original chart (07/21/00) in the amount $136,645.10).
The
highest amount paid in educational costs for a case was: $73,427.00
The
lowest amount paid in educational costs for a case was: $925.00
The
highest amount paid in legal costs was: $15,000.00
The
lowest amount paid in legal costs was: $1,500.00
We
originally did not have exact figures for legal fees and costs the district
itself has incurred specifically related to these cases, as such information is
not published in Consent Calendars. Since it is not part of the Consent
Calendars, this information is not available for public discussion, comment or
challenge. However, according to
MBUSD’s Master Contract with Filarsky & Watt, which runs from
07/01/99-06/30/00 (see 06/23/99 Consent Calendar), the district is charged
between $135.00 and $175.00 per hour for attorney services.
At
the July 19, 2000 school board meeting, the district provided a response
to ASK statements at the June 28, 2000 school board meeting regarding legal fees
and staff development costs incurred by the district.
According to this document, the district has incurred legal fees as
follows:
1997-1998:
$107980.00
1998-1999:
$ 69851.00
1999-2000:
$180630.00
Total:
$358462.00
These
figures have been inserted into the SEHO chart at the appropriate year end
[06/30] date to reflect fees paid per school year. [Note: that the addition on
the document provided by Scott Smith is off by one dollar, probably due to
rounding up in one of the amounts listed].
To
determine whether the litigation that has been undertaken has been worthwhile
and legal fees a worthy expenditure, a “cost/benefit”
test could be performed comparing the amount of legal fees incurred by the
district in connection with each of the 13 cases that resulted in costs to the
district, with the total costs of the litigation as reflected on the chart.
A
rough comparison of the educational costs and fees incurred in the two-year
period covered by our original analysis demonstrates that the figure for ed
costs reflected on that original chart ($345,897.50) was surpassed by the figure
for legal fees the district incurred in the same period ($358,462.00).
It
should also be noted that we are unsure whether the legal fee figures provided
by the district are inclusive of fees incurred as a result of non-compliance
filings with the CDE or with OCR or as a result of state or federal litigation
outside the administrative arena.
Issues
for Consideration
An
analysis of the SEHO chart and the consent calendars raises several points:
According to the SEHO chart, the “prevailing party” is routinely the
“LEA” [local education agency] or “Split” meaning the decision was split
between the parties. However,
- Even when there are split decisions, education costs and/or legal costs
are often paid by the district to families, e.g. 98-1767.
- Even when the district is listed as the prevailing party, costs have
been paid by the district to families, e.g. 99-0356.
-
Split decisions do not reflect compensatory education awarded to students
pursuant to SEHO decisions as such awards may not be described in monetary
terms, e.g. 00-0029.
- Since 1997, more cases listed on the SEHO database have been
characterized as “split” than have been found in favor of the LEA, by a
margin of 8 to 3.
- Cases can last up to two or three years before resolution and in some
instances end up without being resolved, e.g. 96-0711.
- Payments can continue to be made through the term of a case and cases
can remain open and ongoing despite substantial payments already having been
made to parents, e.g. see 98-1767.
- Cases that have been closed can still generate costs and expenditures
beyond the date of closure, e.g. see 98-0873, 99-0475, 99-0755.
- We have no way of knowing the actual legal costs families are incurring
in mediation and due process. As
well, we have no way of assessing the negative impact such a long and drawn out
process can have on the education of the child.
- Considering the educational and legal costs incurred in the closed
cases as compared to the number of cases currently open would seem to indicate
that costs from due process and mediation will continue to rise.
The reasons for this must be carefully examined in light of the negative
impact such activity has on families, on district personnel, on the district’s
financial status, and on the district’s reputation in the community.
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