A settlement was finally reached at the last moment, resolving the ongoing legal battle between the San Dieguito Union High School District and one family’s plea for reasonable from the district for the family’s special education child.
At a special meeting of SDUHSD’s Board of Trustees on June 24, 2024, with trustee Phan Anderson absent, the board reported that it had approved by a 4-0 vote “a mutual and no-fault compromise student agreement to resolve outstanding allegations.
“The mutual agreement for special education services resolves the dispute in exchange for a full release and waiver of claims against the district.”
My May 15 delmartimes.net column provided the background of this case which involves a special education student who had been attending a non-public school since age 3 and aged into the San Dieguito district as a seventh-grader.
Only one member of the student’s Individualized Education Plan team, SDUHSD’s Nathan Molina, recommended a school that all other IEP team felt would be highly inappropriate and detrimental to the student’s well-being.
Because San Dieguito refused to change its recommended school placement, the family found another, more suitable school – The Winston School in Del Mar – which was less expensive than Molina’s choice, closer to the family’s home and was well-suited to address the student’s needs.
Still the district continued to fight the change, so the family enlisted the assistance of special education attorney Matthew Storey.
After losing two lawsuits – at California’s Office of istrative Hearings in August 2022 and at the federal level at the U.S. District Court of Southern California on April 23, 2024 – the San Dieguito school board, unbelievably, voted unanimously to continue to fight.
On May 20, the district filed a motion with the federal court asking the same judge who decided the prior case to reconsider her decision, as I wrote in my second column on this case, posted on delmartimes.net on June 4.
Storey said the district’s request for reconsideration was based on claims that the federal judge, Marilyn Huff, misinterpreted the law, didn’t have the authority to make her decision, and didn’t consider new facts.
SDUHSD’s trustees also voted unanimously to appeal the federal court’s decision to the Ninth Circuit Court of Appeals.
This “really ramps up litigation,” Storey said at the time.
What changed
On June 20, Judge Huff, who was being asked by SDUHSD to reconsider her decision, ordered both parties to appear before her on June 24 to explain why San Dieguito’s motion should be granted, according to Storey.
The district was in favor of pursuing this litigation until the last minute, and the tone changed after that order from the judge, he said.
Between June 20 and June 24, a settlement agreement from the district was presented to Storey and the family, which was accepted and approved by the school board on June 24.
Because the agreement includes a confidentiality clause, details are vague. All Storey would say, after I asked if he was to receive attorneys’ fees, was that he’s “happy with the results.”
“The parents are taken care of and are also very happy with the results,” he added.
The parents and Storey are understandably cautious about what they can reveal about the of the settlement, bound by the confidentiality clause. But, given the responses, it’s likely that the district gave them essentially all they were after from the start, which was to assign the child to The Winston School, reimburse prior out-of-pocket tuition and expenses for related services, and pay Storey’s fees.
Maybe more than that, maybe less. But if Storey and the parents are pleased, then that’s what matters.
Except how can the district pay the family for years of hardship and heartache? That cost is immeasurable.
“Shame on them for doing this to a family and for doing this with [the public’s] money,” Storey said previously.
“We are so thankful and relieved that this is over for us,” said the child’s mother, Kelly Ogawa.
She said they tried everything to avoid litigation, that this process has been “absolutely exhausting” and demonstrates how families can get crushed by the system.
Public money squandered
Representing the school district in this case has been Sarah Sutherland, partner in the firm of Orbach Huff & Henderson.
According to the district’s website, total legal fees paid to Orbach Huff & Henderson in the 2021-2022 academic year were $277,973.94. In the 2022-2023 academic year, the firm was paid $344,212.20.
The 2023-2024 academic year ends June 30, but the paid warrants reports listed in the district’s board meeting agendas through May 30, 2024 added up to $262,710.59 paid to the firm.
That incomplete three-year total to date, with figures missing between May 31 and June 30 of this year, approaches $885,000.
These totals do not include the amount the district is obligated to pay in the settlement agreement.
The only area of service listed for Orbach Huff & Henderson is Special Education, so it’s possible that the firm handled other cases for the district besides this one during that period of time.
Because the district is so far unwilling to reveal that information, I submitted a California Public Records Act request for a copy of the settlement agreement and copies of all invoices paid to Orbach Huff & Henderson pertaining to the following Ogawa case numbers:
— OAH case # 2022020209
— District Court for Southern District of California, case # 22-cv-01703-H-BGS
— Court of Appeals for the Ninth Circuit, case # 24-3286
What I received from SDUHSD superintendent Anne Staffieri’s office was not encouraging or surprising:
“The District objects to your request to the extent that it seeks records, the contents of which are exempt or prohibited to the extent that the necessity for preserving the confidentiality of the records outweighs the necessity for disclosure of the records.
“Further, the District objects to your request to the extent it seeks records directly pertaining to any particular students and/or containing identifiable student information, … and … would allow a reasonable person in the school community … to identify the student with reasonable certainty.
“The District will also not produce attorney billing invoices reflecting work product, which are exempt from public disclosure pursuant to the attorney-client privilege …”
And on it goes, citing legal cases for ammunition.
Frivolous lawsuit
Annie Cappetta, Legal Fellow at California’s First Amendment Coalition, said in an email, “The California Public Records Act generally requires state and local agencies to disclose any public record on request to any member of the public unless the record falls within a specific statutory exemption from disclosure.”
One such exemption, she said, covers records that fall under attorney-client privilege which generally extends to invoices showing how much a government agency has spent on its outside lawyers “during pending litigation.”
“During pending litigation” is a key phrase.
The district used this reasoning to deny my earlier requests, saying litigation was ongoing so the information could not be divulged. But now that litigation has concluded, that justification doesn’t hold up.
According to a 2016 California Supreme Court ruling, when a legal matter remains pending and active, the privilege protects the confidentiality of invoices and encomes everything in an invoice which can be closely related to attorney-client communications, Cappetta said.
“The same is not necessarily true for a closed case,” she said. “Certain portions of the invoices might be redacted as privileged.”
Although this request relates to invoices for a closed case, Cappetta said it appears San Dieguito contends that it will withhold the invoices because the case has not been “long concluded.”
Citing the 2016 California Supreme Court case, she noted that the inquiry as to privilege of invoices in closed cases does not turn on the length of time the case has been closed.
Paul Pfingst, partner and special counsel at the San Diego law firm of Higgs Fletcher Mack, said that money paid to attorneys by public agencies using public funds is revealed regularly, and attorney-client privilege does not permit withholding the information “based on some sort of misuse of the term.”
Furthermore, the school district can waive attorney-client privilege if it so chooses, he said, adding, “But it’s likely that the district wants to avoid voter anger by revealing how much public money was spent on these frivolous lawsuits.”
Regarding the settlement agreement, Pfingst argued that, even with the inclusion of a non-disclosure confidentiality clause, the amount of money the school district has agreed to pay out, both to the prevailing party and to the attorney for fees incurred for representing the family, should be provided.
Pfingst served for eight years as San Diego County District Attorney and is considered one of San Diego’s top attorneys in both civil and criminal matters.
Public humiliation
To reduce further public humiliation, the district appears to be hiding behind some questionable interpretation of attorney-client privilege.
The people have a right to know how much public money was squandered on this indefensible and pointless litigation, and the lack of transparency is inexcusable.
So, redact any information deemed confidential or that may reveal names or identifiers, if the district is so concerned about this (even though the public already knows the name of the family involved, but never mind that). And send over the invoices related to the Ogawa cases so the public can know how much was spent on these lawsuits.
SDUHSD is a grades 7-12 school district in north coastal San Diego County serving more than 13,000 students – apparently not all of them well, if this episode is any indication of how the district treats its special education students.
Opinion columnist and education writer Marsha Sutton can be reached at [email protected].
Marsha Sutton is a columnist and presents her opinion. If you disagree or agree with her opinion, we’d like to hear from you. Email your comment to [email protected].
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