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Frank Gruber

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 [], 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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