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PART 1  -  BACKGROUND

1.  A Little Background

You should know Drew has Aspergers Syndrome, on the Autism continuum.  Academically, he has some unusually strong abilities, but also some very serious deficits.  Drew’s subjective reasoning does not come naturally, in fact it is a difficult concept for Drew.  It can be taught to Drew, but not quickly, and not easily.  In addition, behaviors, especially during adolescences, can prove to be a major challenge.  For Drew they were, and to a significantly lesser degree, still are.  It takes a special teacher with special training to work with Asperger Syndrome kids, especially those who present the more difficult behaviors.  Additionally, Drew is not able to speak.  He hears fine, and can communicate quite well by finger spelling and some signing.  His lack of speech is a co-modality ( or a co-occurrence).   

We as parents discovered that although Drew could memorize material quickly, it was much more difficult for him to comprehend subjective material.   Drew could  do it, but it was not a natural part of his thinking process.  He needed to be taught subjectivity. 

The school system encouraged us to transfer Drew to a center school in his ninth grade year, given that his behaviors were getting more difficult to control.  The school system preferred that he be placed on a special diploma track because the center school did not have any students working on a regular diploma track.  We insisted that he work for a regular diploma at the same time he was working on the special needs side of his education.  Ten years from now we did not want to find we had overcome many of his Asperger Syndrome deficits, only to find we had allowed other deficits, created by the lack of a regular education, to take their place. 

As Drew was moving through the school system, Janie and I went to conferences to learn about Aspergers and about ESE education.  I participated in the district's ESE Advisory Committee, the Superintendent's committee on staff training needs, and the Chamber's WorldClass Education Board of Directors.  I became active in Noah's Ark of Central Florida, a non-profit working to provide for housing needs of the developmentally disabled.  I also became an advocate for other ESE families working to get the needed services for their children.  In 2002 the school superintendent and the school board was presented with a list of issues that I felt needed to be addressed to make a significant difference the quality of the ESE program in Polk County (see Polk ESE Issues on tab to left).  The issues were ignored.  In 2004 I recommended to two school board members that the ESE Director be replaced. 

2.  A Regular Diploma - Just Take The Time Needed

The answer seemed to be for Drew to take half his day working on academics and half his day working on the social deficits inherent to Aspergers Syndrome.  It would take Drew twice as long to get through high school, but in the end we hoped he would have a better chance to experience a good, productive life.  Because he is developmentally delayed, he needed the extra time to develop.  That is why legislation allows ESE students to stay in school until the year the ESE students turn 22.

Support services for the developmentally delayed also assume they will stay in school until then, too.  That is how the system is set up.

3.  More Courses - Little Time

Last year his teacher began instructing Drew in five academic courses, taking about 1/3 of the school day, and later perhaps a little more,  to do so.  We, as Drew’s parents, believed they were planning to just take two or three years to instruct Drew on the material within the five courses.  Drew had no homework.  In school, he had relatively few, if any, written tests.  His teacher did things orally because he said Drew just didn’t want to write, and I'm sure that was true.  The teacher reported he did not want to “force” him to write because of a fear his behaviors would resurface. 

Over the last two years in the classroom and at home, Drew’s behaviors greatly improved.  We foresaw when Drew would again be productive academically.  We believed Drew's teacher was the right person with the right demeanor at the right time in Drew's life.  Drew loved his teacher and his aide, and I believe they loved him.

We felt Drew's caring teacher and aide, some time on the other side of adolescence, and a new medication (Abilify),  had done a great job improving Drew's overall behavior, but the time had come to work on Drew's reluctance to write.  During the last school year we encouraged Drew’s teacher to seek assistance from Drew’s behavior analyst regarding Drew's reluctance to write.  We also encouraged Drew's teacher to get Drew over to the Bartow High School campus.  It is not unusual for students on the autistic spectrum to have a reluctance to socialize or communicate.   We believed a behavior analyst could suggest ways the teacher could encourage Drew to write, or perhaps involve a behavior therapist intensively in the education process.  We felt the teacher needed to be less accommodating on testing.  Drew was ready for the next level. 

We believed Drew's teacher needed assistance in the classroom on these issues.  Drew's teacher is relatively new to the ESE field, and with additional experience and training, we believe will be a great ESE teacher.  But this was where he needed additional training and, understandably, assistance from outside experts.  The behaviors of an autistic child often do not present easy solutions.

4.  Ready or Not - Drew is Graduating

With this background, it might be understandable that we were really quite upset when we were told in a February 23, 2004 IEP meeting that the Polk County School District was awarding a full high school credit for each of the “courses” Drew had taken, and he would be ready to graduate.  I presented to the IEP committee the average time spent in the 2002-2003 school year on academics, along with the average time spent in 2003-2004.  In April 2003, Drew averaged only 101 minutes of a 360 minute school day on academics.  In January, 2004, Drew averaged 150 minutes of a 360 minute school day on academics. 

ESE administrators in the IEP told me that the IEP committee had no control over if he graduates, that it was a state/district determination.  The Teaching specialist in the IEP said the IEP committee did not have any authority of resolve the matter, it was an administrative decision. 

Interestingly, we would be told later in the Due Process Hearing discussed below that the teacher decides whether the student has earned the credits, and the supervisor of that teacher is responsible to make sure the course is being taught properly.  Both of those individuals were participating in the IEP that we were told had no control over whether Drew would graduate.  Yeah.....sure....right.

Click here to get a copy of the transcript of the February 23rd IEP meeting.  We recorded the meeting digitally, and the clear and crisp audio file is available on CD.

5.  Drew's Not Writing - Just Remove the Goals

In that same IEP meeting, I was told we would not be including those goals in the new IEP that required Drew to write.  I was told Drew could write, he didn’t, it was a matter of compliance, and the four goals regarding writing were being removed.  I could not understand how an IEP committee could decide to remove writing goals from Drew’s IEP.  Drew is a student with a disability, Aspergers Syndrome, that makes him reluctant to communicate.  His second disability, the lack of speech, makes writing skills essential to his future.  How do you remove writing skills as goals when the student can not talk?

What I was really being told by the IEP committee that they were graduating Drew based on work he had not accomplished and removing IEP goals which were essential but unmet. 

It was at this point I became convinced we were no longer talking about what was best for Drew's education and future, just what has the most efficient way to have Drew exit the Polk County School System.  His removal from the school system would save money.  It would also be much more convenient to have Drew and his "activist" Dad out of the system.

I left the IEP meeting at that point.  I just had to leave.  After I left, the IEP committee wrote what I believe were preordained goals by the ESE administration, and sent me a copy.

Click here  for a copy of Drew's IEP on Oct. 6, 2003

Click here  for a copy of Drew's IEP on Feb. 23, 2004

6.  Our Letter to the School District - Need new IEP or Go to Mediation

Read the April 21^st response from Janie and me to Sherwin Holmes, Director of ESE. 

Click here to get a copy of our April 21st response to School District's positions expressed in the school district's IEP meeting.

I know it took a long time for us to respond.  It took me some time to calm down.  I couldn’t believe they wanted to take the writing goals out of the IEP.  Drew cannot talk.  And graduating Drew?  It wasn’t anywhere in the realm of reason for at least two more years.  And because the school officials’ behavior appeared flakey, I had Mark Kamleiter, a special needs attorney out of St. Petersburg, review our response before I sent it.  Janie and I needed help. 

We sent copies of the letter certified mail, return receipt requested, to Jim Thornhill, the Superintendent of Schools, to Elizabeth Miles, the Assistant Superintendent of Schools, and Jack English, the Chairman of the Polk County School Board.   We sent copies to the rest of the School Board regular mail.  I included in these packages the issues paper, the first document listed on this website.  They had received it before, but I presented it to them again. 

7.  School District's Response - New IEP, Or So We Thought

Then, in context with our IEP response letter, read the letter we received from Sherwin Holmes on Saturday, May 8^th.  I think you might agree that a parent would be lead to assume that the school district was not planning to forcibly graduate Drew.  The letter of May 8^th was the first acknowledgement by the Polk County School District that they had received our IEP response letter.  No one from the school system called us to discuss any of our concerns expressed in the letter. 

Click here to get a copy of the letter we received May 8^th from the Director of ESE Education.
 

Why would they set up an IEP meeting if they were planning to graduate Drew?  And why would they say in the Meeting Notice accompanying the letter that the reason for the meeting was "Transition services needs will be considered and diploma option reviewed?"  I believe I now know the answer. 

8.  Parents Should Be Able to Trust Their School System

It appears that Sherwin Holmes' May 8th letter was a tactic to deceive my wife and I.  It is an unethical practice that should not be repeated by the Polk County School District.  It now appears the school district intended to give us every reason to believe the district did not have graduation plans so we, as Drew’s parents, would not ask for a Due Process Hearing, something that must be done before the day of graduation.  They wanted to keep us from doing so.  It has now become clear that they decided to keep the planned graduation a surprise by deceit.  They did keep it a surprise.

9.  The Not So Funny Deception

On Saturday, May 8th, we received via certified mail a Meeting Notice, dated May 7^th, notifying us of an IEP meeting scheduled for May 21, 2004, the last day of school.

On Thursday, May 13^th, we were given at least one item when we picked up Drew from school.  It was something we did not initially understand.  It was a form that was apparently sent out to all graduating seniors of Bartow High School, a high school across the street from Drew’s portable.  Drew never attended any classes there.  The form listed the practice sessions for graduating seniors that were planed, beginning the next day, May 14^th.  The form was to be returned to Bartow Senior High School by an April date by all  graduating seniors wishing to participate in the graduation ceremony on May 20th, 2004.

Later that afternoon I received a call from Drew’s teacher.  He said Drew could not come to school the next day, May 14th,  because the teacher and Drew’s aide had been assigned duties at the practice graduation.  He said he had just been notified.  He apologized for the late notice.  That same afternoon, sometime after 4:28 p.m. (when the email was sent)  I received an email from Teri Bronson, Drew's Area ESE Coordinator, saying that we had been playing phone tag, but

 "I just wanted to remind you that there is no school tomorrow.  All seniors will be practicing for graduation at the stadium from 7:30 until noon.  Bruce and Sharon will be at the stadium if you want Drew to practice.  Please refer to the schedule that I sent home with Drew."

I don't remember if I saw this email on May 13th.   She has said she wanted to remind me.  I had known nothing about the practice and that Drew would not be going to school.  Neither did Drew's teacher or his aide.

On Friday, May 14^th, I called Drew’s teacher.  The teacher informed me he had just been notified that Drew’s last day of school had been the day before and that Drew was considered a graduating senior.  He said that senior’s had practice for graduation and had no other classroom responsibilities.    

 I then called and spoke to Sharon Alcorn, the ESE staffing specialist in charge of setting up the IEP meeting.  She confirmed what the teacher had just told me.  I asked her why she was trying to set up an IEP meeting for a student that would have already graduated.  She told me she was just following instructions.

10.  Call Our Attorney - Graduate Drew Before the IEP?

It was time to again contact Mark Kamleiter, our attorney, again.  I emailed Mark Thursday at midnight. 

Friday, May 14th, Mark was out of is office, but he did have his secretary fax a letter to Wes Bridges, the school board attorney,  saying that if the School Board intended to graduate Drew this school year, to let us know immediately so we could take steps to stop the progress.  I received a copy of the letter from Mark’s secretary before noon that day.

Click here to get a copy of the letter our special needs attorney sent the school board attorney.

Late Sunday afternoon our special needs attorney emailed me a Due Process Request form and a Motion for an Injunction (to keep the school District from graduating Drew) he had completed.  Our attorney transmitted these documents to Wes Bridges, the School Board attorney, on Monday Morning, May 17^th. 

Click here for a copy of the request for due process hearing.

Click here for the motion for an emergency injunction.

On Tuesday, May 18^th, we received a copy of a letter from Wes Bridges, the school board attorney, transmitting the Request for Due Process Hearing and transmitting the Motion for an Emergency Injunction to the Director of Administrative Hearings in Tallahassee.  In the letter, Mr. Bridges states that Drew had graduated May 13th, implying, at least to me, nothing we were doing was relevant.  This was the first written response to the graduation concerns I expressed in my  April 20^th letter to Sherwin Holmes.   The school board attorney also announced they would bring in a California attorney, Greg Scharff, to argue  the case.  They really wanted to exit Drew from the school system.

Click here to get a copy of the letter the school board attorney sent to the Administrative Hearings Office. 

Then on May 20^th, we received a document from the School Board attorney, RESPONDENT’S (that is the School Board) OPPOSITION TO MOTION FOR EMERGENCY INJUNCTION.   This was just a continuation of their strategy.  Make the parents think we are not going to graduate their son, let them know of the graduation after-the-fact, and then argue that the parents and their son Drew have no rights under IDEA because he has already graduated. 

Click Here to get a copy of the Respondent's opposition to Motion for Emergency Injunction

To prove that Drew had graduated, we also received an AFFIDAVIT OF BRUCE TONJES.  In that Affidavit , Mr. Tonjes, the Director, Secondary Education for the School Board of Polk County, says Drew has met all of his credits to graduate.  Of course, that is only ½ of the story. 

Click Here to get a copy of the Affidavit of Bruce Tonjes.

In his affidavit, Mr. Tonjes remained silent on our contention from Drew’s parents that the credits were not actually earned, but were awarded to Drew without regards to whether they had been earned or not.  We believe they were not earned.  That was a major issue Mr. Tonjes, the School Board Administration, and the School Board attorney still remained silent on until our Due Process hearing.  I was interested to see an affidavit from Mr. Tonjes that he has examined the actual work performed by Drew and that it is consistent with that work required by the School Board to earn the credits. 

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PART 2  -  THE  DUE  PROCESS  HEARING

11.  The Due Process Hearing

On August 17th, 18th, and the morning of August 19th, we had a Due Process Hearing.  Did you think we could get the entire matter resolved?  Not hardly.  This court hearing was just to determine if the school system had given Drew the credits he needed to graduate, NOT if Drew had earned the credits or learned the material he needed to graduate.  

Below is how I remember the hearing.  If any of the participants believe I got it wrong, just contact me and I will correct the material if I agree, or post you concerns immediately adjoining the subject text.  We plan to post he testimony as soon as the transcript is available.

The Director of the Secondary Education Department, Bruce Tonjes, testified.  He said in his affidavit that his duties include " insuring that students meet the Sunshine State Standards, FCAT responsibilities and other state requirements for graduation."  For Drew, he testified he checked the computer printout to see if Drew had the credits he needed to graduated, and then looked deeper.  Deeper was that Mr. Tonjes checked Drew's course numbers to make sure they were the courses he needed to graduate.  My attorney asked if he had seen my April 20th letter voicing concerns about whether Drew had earned his credits or met the Sunshine State Standards.  No, apparently he had not seen it.  That really was amazing.  The school administration asked Mr. Tonjes to write a letter confirming that Drew had earned all of his credits and chooses not to tell him of a ten page letter, sent certified mail to the school board, presenting evidence that the credits had not been earned.  Neither, apparently, was he provided a copy of the daily logs the teacher kept on how much time was spent each day on each academic subject.  Facts were not going to get in the way of the conclusion Mr. Tonjes was asked to report. 

But Mr. Tonjes told us Polk has a policy regarding students who take a course were they don't meet the Sunshine State Standards.  They find to the "benefit" of the student, giving all the students in the class that doesn't meet the standards the credit, and then, if required, they may discipline the teacher.  This is the testimony from the administrator who's duties include "insuring that students meet the Sunshine State Standards.  He said their policy "benefits" the student.  So it would appear, that in Polk County, if a student has not met the Sunshine State Standards for any number of classes, the school system will still pass the student.  As Drew's parents, we do not believe that policy "benefits" Drew. 

It looks like a Catch 22.  We, Drew's parents, have to show that Drew did not earn his credits to prove he did not graduate so we can go to a hearing to determine if Drew's exceptional student education needs were met.  But even if Drew's credits were not earned, they will be awarded to him anyway, and he will have graduated, regardless.  There shall be no hearing, and Drew is out of the school system unless his parents pay more money to go to Federal Court to hold the system accountable. 

We also had the school system's expert for FCAT's tell us that Drew passed his 10th grade FCAT on the first try, and that 36% of all Polk County 10th graders aren't able to do so.  The school system was suggesting that passing the FCAT proves Drew was learning the Sunshine State Standards. 

The school system also called an Assistant Principal of Bartow High School to testify.  We were able to determine that she knew very little about Drew, and less about his teacher or what Drew was being taught.

Sherwin Holmes testified.  His testimony was, as I remember it, unremarkable.  When the transcript is available, I will discuss his input.

I testified.  I was able to give a brief background sketch of Drew's education, his past challenges, and where I believed his current education fell far short of what should be required to graduate.  I was not able to discuss in any detail the IEP goals that had not been met, although I very much wanted to.  I did get to express my concern that Drew's recent education did not include improving his written communication skills, skills that would be essential for a non-verbal person.  Also, a major concern had been the amount of time each day that was actually spent on Drew's academic subjects, generally about 40 percent of the day.  The academic time was logged by Drew and his teacher.  Drew had no home work. 

During the hearing, the judge did let us proffer information that will be important in future litigation.  We would have liked to have proffered more, but the judge was only tolerant to a point. 

Dr. Tashawna Duncan ( http://psychforkids.com/ ) was our education expert, and she really is one.  She did a very good  job discussing what the Florida Sunshine State Standards are.  She also discussed her testing of Drew, her observations, her review of Drew's written work, and his current academic abilities.  Basically, she found that Drew has a long way to go before he knows the minimum material he should know before he graduates.  His critical thinking skills also fall far short of where they should be, but they can be developed with the right kind of instruction.  Both his writing skills demonstrated in achievement testing and his writing skills as provided in Drew's written work for the last two years of high school were on the second grade level.  When asked how Drew passed the written part of the FCAT, Dr. Duncan said that given how Drew tested and the writing samples she reviewed, she said she had no explanation for it.  She said she was more confident standing behind her testing and the writing samples from his class work.

Teri Bronson, the ESE Area Coordinator, testified.  She said that she, along with Mr. & Mrs. Sammons approval, hired Drew' s teacher.  She said that she had the same qualifications as an assistant principal, and that she was essentially Drew's assistant principal, being responsible to make sure Drew was receiving his education and, essentially, that the education Drew was receiving was appropriate.  She interacted with Drew's teacher perhaps as much as twice a week, often observing, and was satisfied the teacher was doing a great job.

Drew's teacher, who has been great to Drew, testified that Drew completed almost all of his work by signing answers to questions generally presented to him orally.  He said Drew just didn't want to write.  He assigned grades to Drew by subjectively considering Drew's performance each day in each particular subject.  He felt that Drew did have critical thinking skills.   He read all of the text books out loud to Drew, asking him oral questions as they went, with Drew responding by signing.  Virtually all of Drew's class work was done in this manner, including geometry, chemistry, English III, and English IV. 

There was considerable disagreement between where Drew's teacher believes Drew is academically and where Dr. Duncan believes Drew is.  There was also considerable disagreement between just how good Drew's critical thinking is.

After Drew's teacher testified, the school board officials and their attorney huddled together and then announced they had two rebuttal witnesses, but couldn't get in contact with them.  They asked that the hearing be continued for a third day.  Our attorney was able to make arrangements to find another hotel room for a third night.  The recent hurricane did not make the task easy.

The next morning, upon arriving, we were told the witnesses were unavailable and the hearing was over.  I discussed the timing of the transcripts, etc.  We thought we would have the transcripts by September 1, but they arrived September 10th via Email.  The hard copy arrived at my attorneys office shortly thereafter.

Click here to get a copy of the transcript of the Due Process Hearing. 

(1 Meg Word File)

The transcript is just over 400 pages long.  You now can draw your own conclusions from the transcripts.

On October 15th, 2004, our attorney and Greg Scharff, the attorney for the Polk County School Board, each had to turn in to the administrative judge a proposed final order. 

Click here to get a copy of the School Board's Proposed Final Order.

Click here to get a copy of the student's Proposed Final Order. 

(Word Files)
 

The judge reviewed the final orders, and issued his own final order, based on his findings, on November 10th, 2004.  His summary: Untimely request for due process hearing was filed after child met all requirements to receive regular diploma; ALJ has no authority to require provision of post-graduation services.

Click here to get a copy of the Administrative Judge's Final Order. 

(Word File)

After receiving the Final Order, I then waited to find out if Polk County's new school superintendent, Gail McKinzie, would take a new approach with the ESE Department and, hopefully, Drew's case.  November 15, 2004 was officially her first day as Polk County's first appointed superintendent.  After each of two meetings that she spoke at, I had introduced myself to her and asked her if she would be willing to meet with me.  She told me just to e-mail her.  Several e-mails were exchanged which are below.  Thus far she has chosen to follow the path of her predecessor.  She has not scheduled a meeting and not met Drew.  This represented a major disappointment for Janie and me.

Click here to get a copy of the 12 02 04 e-mail to and reply from Polk's Superintendent of Schools Gail McKinzie and subsequent reply from me. 

Click here to get a copy of the 12 10 04 e-mail to Superintendent McKinzie.

Click here to get a copy of the 02 07 05 e-mail to and reply from Superintendent McKinzie

With no response available from the superintendent, we found ourselves forced due to time deadlines to file a complaint is Federal Court to preserve Drew's right to an education. 

12.  A Deceptive Strategy At Work

The initial strategy of the School Board might have worked.  If the school system had given him the credits, then regardless of whether they were earned or not, then Drew would "graduate".  Drew then could not seek remedies under IDEA, the federal laws that promise he will receive the education he needs.  This hearing cost for Drew's parents was $15,000, plus, with nothing resolved.  But the hearing had to take place before the case could be moved to Federal Court.  The School District of Polk County was placing a $15,000 financial hurdle in front of Drew's parents before the facts of the case could be heard.

Was there case law saying the Administrative Judge could hear the case after graduation.  You bet.  But apparently the Administrative Judge decided the case law didn't apply.  How is that?  You would have to ask that particular judge.  I have been told the Administrative Judge has to go by Florida rules that are considered squirrelly at best, and they greatly limit just what an administrative judge can rule on.  This was not what the U.S. Congress wanted in the Due Process Hearing when they required it under the IDEA legislation.  I am told the state legislature is aware of the problem but shows no interest in fixing the problem any time soon. 

What effectively happens is that in Florida it means the administrative hearing is too often just an expensive hoop the parent has to jump though until they can arrive at a court that can really do something.  The parent is also at another disadvantage.  The Administrative Judge often limits what testimony you can give, and sometimes even proffer, but if all of your evidence is not either presented or proffered, the federal court judge will say you should have presented it in the Administrative Hearing and will not be able to present it in federal court.  Another Catch 22.  This is not information the average parent knows.  It is information the school system attorneys' know.  Although the parents do not have to have legal representation in the Administrative Hearing, and they don't know all of the rules, the school district can squash you in federal court.  

Basically, the administrative judge, though his rulings, appears to be saying that we, as parents, should have known that the school board could notify us of a May 21st IEP meeting to discuss the issues, only to graduate him on a secret graduation date seven days before graduation and before the scheduled IEP.  The secret graduation date?  May 13th, 2004.  That is the last day seniors have class.  The school board attorney knows about that date.  I bet most parents don't know that is the operative graduation date in Polk County. 

Did Drew's teacher know May 13th was Drew's going to be Drew's last day of school?  No.  I feel certain this is the case.  The administrators could not tell him because he would have told us.  He loved Drew too much.  Did Drew's parents know it was going to be Drew's last day of school?  No. 

The school attorney must have known the plan was to graduate Drew while making his parents believe a new IEP meeting would discuss Drew's continued schooling, or at least it sure looks that way.  The ESE Director had to have known, or at least it sure looks that way.  The same applies to the ESE Area Coordinator.  There had to be a little conspiracy to get this deception to work.  Plan a meeting to resolve the issues and then graduate the student before the meeting so no meeting need ever take place.  It was essential that the parents not find out about the graduation plans.  This strategy forces the parents into the legal arena they were trying to avoid, and it drives up their legal expenses another $15,000 plus.  It was a great strategy to make it cost-prohibitive for the parents to pursue the rights for their son to receive his education.  Was it ethical?  Was there a concern about the child they were charged with educating?

13.  Who Was The Architect Of The Deceptive Strategy?

If you believe it was a strategy and it was deceptive, was the architect Greg Scharff, the attorney from Palo Alto, California?  Was it the School Board hired him to keep Drew out of the school system?   Was it Wes Bridges, the school board attorney?  Or was it Sherwin Holmes, the ESE Director? 

Did the School Superintendent endorse the plan?  What about the Assistant Superintendent? 

Who else knew of this little conspiracy, that is, if your believe there was one?  Did the School Board know of the plan?  Would they endorse the plan if they knew about it? They knew, or should have known about the issues regarding Drew when they received copies of my April 21st letter.  They knew of the issues Drew's Dad had presented regarding ESE education in their district.  Did they approve spending thousands of dollars to import Greg Scharff when the parents were trying hard to avoid litigation and asking for mediation?

Do the school board officials believe the conduct of their administration regarding the exiting of Drew from their system was a legitimate response to the parents' letter requesting dialogue, not litigation?  If so, would most voters of Polk County consider this a corruption of the government process?

14.  We Don't Want to Litigate -  The School Board Does

My wife and I still believe this legal path it is unnecessary.  We would still like to sit down with school officials and hear an explanation of how the work that Drew has done thus far qualifies for the high school credits they attribute to him.  We believe the attorney’s fees the school board is necessitating is wasting precious resources.  Friends are working to get an accurate accounting on the fees Greg has been paid in Polk County and around the state. 

Here are some of the legal expenses I have been able to retrieve from the minutes of the recent Polk County School Board.  Keep in mind, these contracts often have language that includes the expensive words "plus expenses."  The expenses generally do not include the cost of the expert witnesses.  The expert witness expenses may be in the minutes, I just haven't had the time to research them.  From this years School Board minutes found on the school board's web pages:

School Board Minutes    January 13, 2004   Polk County

 http://www.pcsb.k12.fl.us/schoolboard/minutes/2004/011304BdMinutes.pdf

**EMERGENCY ITEM** 3. Motion by Mrs. Sellers and second by Mr. Nelson to enter agreement with Edwards & Scharff, Attorneys at Law, representing Polk County School Board in Due Process Hearing Scheduled for January 20-23, 2004 Total cost not to exceed $20,000.00, with payment through Federal IDEA Grant.

(Liz Miles/Sherwin Holmes)

Mrs. Reddout and Mrs. Fields asked for an explanation for items “3” and “4”.  Sherwin Holmes explained these are expert witnesses for an upcoming court case. They were chosen based on their experience and availability.  Notification of the court dates deemed it necessary to bring these as emergency items.

Motion carried unanimously.

School Board Minutes    February 24, 2004    Polk County     Page 7

http://www.pcsb.k12.fl.us/schoolboard/minutes/2004/022404BdMinutes.pdf

 H. Agreement with Edwards & Scharff, Attorneys At Law to represent the Polk County School Board in Due Process Hearings and staff training related to IDEA Section 504 and other related legal issues during the period February 25 through June 30, 2004, at a cost not to exceed $48,000.00, with payment through Federal IDEA Grant.

(Liz Miles/Sherwin Holmes)

School Board Minutes    June 8, 2004        Page 2

 http://www.pcsb.k12.fl.us/schoolboard/minutes/2004/060804BdMinutes.pdf

 Item N, Pg 6 AMEND ITEM TO READ:  Agreement with Edwards & Scharff, Attorneys At Law, representing Polk County School Board in Due Process Hearings and staff training related to IDWA, 504, and other related legal issues during the period July 1, 2004 through June 30, 2005, at a cost not to exceed $78,000, with payment through federal IDEA Grant funds. (as compared to $48,000 last year)

(Liz Miles/Sherwin Holmes)

School Board Minutes    June 8, 2004        Page 7

ITEM AMENDED

**SEE PAGE 2 OF MINUTES**

 N. Agreement with Edwards & Scharff, Attorneys At Law, representing Polk County School Board in Due Process Hearings and staff training related to IDEA, 504, and other related legal issues during the period July 1, 2004 through June 30, 2005, at a cost not to exceed $78,000.00, with payment through federal IDEA Grant funds as compared to $48.000.00 last year.

(Liz Miles/Sherwin Holmes)

Thus far, we haven't found $150,000 in spending on Greg Scharff's fees last year in Polk County, not even close.  In 2003 it looks like $6,000 was paid to GMS, a company of Greg's, for staff training.  In the first five months of 2004, it appears he was paid $36,633, and other "non-Scharff" ESE legal related expense totaled $17,208. (June 3, 2004 PCSB minutes of Work Session).   At that same work session, the Board discussed the new July 1, 2004 through June 30, 2005 agreement with Greg Scharff at a cost not to exceed $78,000, plus expenses.

On August 30th, I received some detailed records of fees the Polk County School Board has paid Greg Scharff.  I will be looking them over.  If you want to look the 47 pages over:

CLICK HERE to get a copy of the School

Board's legal fees thru June, 2004 (47 pages in a PDF file) 

CLICK HERE to get a copy of the School Boards legal fees thru September 30th, 2004 (about 20 pages in a PDF file)

CLICK HERE to get a copy our public records request of the School Board legal fees from September 30th to January 31, 2005 - and the E-mail reply from Ed Flood of Polk County School District
 

After receiving the September 30th fee statements, it looks like the Polk County School Board had spent over $40,000 to keep Drew out of school and from having to discuss the issues in my  April 21st letter.

CLICK HERE to get a copy of the Sammons legal fees paid to Mark Kamleiter thru December, 2004 (10 pages in a PDF file) 

We just want to educate Drew and the other ESE students in Polk County.  Polk County has a horrible record in ESE education.  The system must change.  The discrimination of students with disabilities must stop.  The school system must stop using IDEA funds to prevent students from receiving their services and to subvert the due process rights of ESE students. 

We hope that before the School Board authorizes additional extraordinary legal fees for Drew’s case, that they take a look at our letter of April 21^st and see if they believe their administration is justified in asking for extraordinary legal expenditures.  The School Board should know that the school administrators decided to take the costly legal path.  We, as Drew's parents,  had to chose between a legal path or Drew not receiving the education he needs.  We will expect reimbursement of our legal fees and expenses.  And they are mounting.

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PART 3  - FEDERAL COURT

 15.  Initial Motions

With no response available from the superintendent, we found ourselves forced due to time deadlines to file a complaint is Federal Court to preserve Drew's right to an education. 

Click here to get a copy of the Complaint we filed in Federal Court. 

Click Here get a copy of the Answer to the Complaint by Polk County Schools. 

Next we filed a motion for a "Stay Put" order, which would allow Drew to get back in school while this matter continues in the court.  The estimate for the Stay Put legal work is $3,000 to $5,000, with the understanding that the School Board could have their counsel submit a lot of motions to make it more expensive and to prevent a hearing of the facts. 

         Click Here to get a copy of the Motion for a Preliminary Injunction - Stay Put

          Click Here for our Request for Oral Argument

          Click Here for the Federal Court's "Notice of Hearing for Preliminary Injunction"

          Click Here for Polk County's Response to Motion for a Preliminary Injunction

          Click here for the Affidavit of Sherwin Holmes (Polk's ESE Director).

          Click here for Polk County School Board's Motion to Vacate Evidentiary Hearing or Limit Its Scope

          Click here for the Federal Court's Order on Motion to Vacate Notice of Hearing

          Click here for Polk County's Amended Response to Motion for Preliminary Injunction

We had the hearing for the Preliminary Injunction on February 25, 2005, and closing arguments on March 8, 2005.  The transcripts are in three files.  Interestingly, Sherwin Holmes, in his testimony (pg. 93 in FILE ONE) says Drew is ready to move on to things such as college or training for job opportunities.  He said Drew could thrive and succeed in college. 

This is so far removed from the information provided by Voc Rehab.  It is impossible for this parent to understand how Voc Rehab and Sherwin Holmes could be talking about the same student.  Drew's teacher said in the February 23, 2004 IEP meeting, as digitally recorded and transcribed, that Drew is not writing anything in his English IV class, he just answers oral questions with signing.  How can a student that is unable to speak and is unwilling to write "thrive and succeed in college?"

On page 33 of FILE ONE of the transcripts, Mark Kamleiter, our attorney for the Administrative Hearing, was asked "Did you have any reason to believe at this point in time that the District would just graduate Drew before the meeting that they said the were going to have?"  Mark replied"  Absolutely not.  I can't imagine any district - - I've practiced in probably over 20 - - 25 districts in the state.  I have never seen this kind of behavior."

Click for FILE TWO of the February 25 transcripts.

Click for FILE THREE of the legal argument transcripts offered March 8, 2005.

On April 15th, 2005 there was a case management conference before Judge Bucklew.   We wanted to obtain more evidence and have a trial before the next school year.  The school board wanted to prevent us from obtaining any additional evidence but did not want the trial to begin before January, 2006.  In the Case Management and Scheduling Order, Judge Bucklew ruled we could gather more evidence and scheduled the trial for November, the fastest the schedule would allow.  She indicated that if we are granted the preliminary injunction and Drew was put back in school, the trial may be rescheduled for later.

There have been many other documents filed since the last document above.  I will try to get them posted soon.

16.  June 20th, 2005 Update

U.S. Magistrate Judge issued on April 22, 2005 a Report and Recommendation to return Drew to school as soon as practical during the court proceedings. 

In the Report from the Magistrate:

The Polk County's School District's California attorney, Greg Scharff, filed a twenty page response objecting to the Report and Recommendation.  Then our family's federal appellate attorneys, Tim Weber and Andrew Lennox, filed a response to the Polk County School District's objections.

On June 2, 2005, Scharff deposed Janie (Drew's mom and my wife) for over 5 and a half hours, asking her things like "who was is first grade teacher and what type of class was it?"  As soon as the transcript is finalized, I will post it.  Over the next week, there were  more depositions of many of the 14 witnesses listed by the school board.  They were at the same time enlightening and disappointing.  One can see what the genesis of the problem was.  The matter is coming into focus.  We will post these depositions, too.  We are now coming to the conclusion that Polk County administrators neither have the ability or the interest in educating our autism spectrum child.

June 20th Court Order

adopting earlier Report and Recommendation

Click Here for the latest article from The Ledger.

For Deposition Transcript, Click on Name:   

Bruce Tonjes      Director of Secondary Education and after July 1st:  Associate Superintendent for School Based Operations

Terri Bronson     ESE Area Coordinator

Leslie Allore        ESE Facilitator for the Autism Program

Terri Crace          Transition Facilitator

Wilma Ferrer      Sr. Director of Assessment Accountability and Evaluation

Janie Sammons   Drew's Mom

Cheryl Borden-Jordon    Behavior Therapist under contract to Polk County School District

Last week Janie and I spent over 2 hours meeting with two expert witnesses the school board has hired to testify in this case.  They spent approximately 40 minutes with Drew.  One expert is a behavior therapist and the other expert is a speech therapist.  Both are from Nova Southeastern University in Fort Lauderdale.  Drew recently received dental care at Nova's dental program for the developmentally disabled for which we are deeply grateful.  They flew up to Bartow for the day, I'm sure at tax payers' expense.  We understand the Polk County School System will also be flying in an expert from the University of Southern California.  This is how the school system will soon have over $150,000 in their legal efforts to keep Drew out of school.  If they loose, they will have to reimburse my family for what will soon be $100,000 of legal expenses. 

This is not the first time the Polk County School District system has spent a lot of money on attorney's fees.  In 1994 Polk spent over $400,000 in a due process hearing to keep a Polk County student from receiving services his parents felt IDEA promised.  After incurring over $100,000, the family moved the student and his mother to Georgia to receive the needed services.  For Polk, it must have been considered $400,000 well spent.  Thank goodness a county in Georgia took seriously their obligation to teach a blind child. 

I will admit one deposition in particular was distressing to me.  Bruce Tonjes, soon to be promoted to one of the two "number two" positions in the school district, testified in June, 2005, if my memory has not failed me in the last week, that he still has not seen, or at least does not remember seeing, my ten page letter of April 20, 2004 giving reasons why we contested the graduation.  Interestingly, the school superintendent has assured me she has read my April 20th letter.  Why would she send an administrator to a deposition in a federal case that has not read the letter? 

Mr. Tonjes testified in the Due Process Hearing in August of 2004, as describe in Paragraph 11 below and in the transcript of the hearing, page 43, that he had been requested to write an affidavit confirming Drew's graduation without being made aware of a ten page letter Drew's parents had written [a letter questioning the validity of their son's graduation].  I remember thinking that if I had been him, I would have been furious at who ever had set me up to write an affidavit without all the facts at the school board's disposal.  But to go to a deposition over a year later, and still not having read the letter, or at least not having a recollection that he had ever read the letter, (page 9 of the deposition) appears to me to represent either some type of misguided legal or board strategy over which he has no control or represents a callous indifference on his part to the responsibilities of his position and the ESE student his district has the responsibility to educate.  Click Here for a copy of the deposition.  You can draw your own conclusions as to his comments.

After a sincere effort by the parents to communicate their concerns in their April 20th, 2004,  letter, the administrator responsible for making the decision on the validity of Drew's graduation still has not reviewed the letter specifying their concerns after one year and $175,000  of combined legal expenses, including depositions.  The only conclusions I can draw are not good.  Is it any wonder Polk County has arguably the worst performing Exceptional Student Education Department in the State of Florida out of 67 counties?  Is it any wonder that this lack of responsiveness of the Polk County School Board has lead to the necessity of the population it serves from forming more charter schools than any of the 67 counties in the state?

This afternoon, June 20th, 2005, United States District Judge Susan C. Bucklew issued an order that determined the Report and Recommendations should be adopted.  The court found that a the Defendant's [Polk County School Board] May 7th, 2004 meeting notice informing Plaintiffs [Drew's parents] that a new IEP meeting would be held on May 21,2004 would lead a reasonable person to believe that Defendant was not going to graduate A.S. [Drew] prior to the May 21, 2004 IEP meeting.  The court found that the Polk Count School Board's scheduling of an IEP was affirmative conduct by Defendant [Polk County School Board] going beyond mere negligence.  Judge Bucklew has ordered the Polk County School Board to return Drew, as soon as practicable, to his educational placement as it existed under the October 23, 2003 IEP during the pendency of these proceedings. 

This means Drew can go back to school, after missing a year, and receive his education while the school district continues it effort to remove him once again.  We can then address a remedy of compensatory education at the end of the case.

My thanks also go out to the Magistrate Judge Elizabeth Jenkins for being very attentive and taking our request to continue Drew's education to be a very important matter before the court.  You can tell that she knew it was important when reading the Report and Recommendation.  Significant research and thought went into the effort.  The care she used to present her findings is greatly appreciated.  My thanks also go to Judge Bucklew for her understanding and firmness regarding the matter.

This very favorable Report and Recommendation  and the Order is due in large part to a great legal team of Timothy Weber (twebe@brdwlaw.com) and Andrew Lennox (alenn@brdwlaw.com) of Battaglia, Ross, Dicus, & Wein, P.A., out of St. Petersburg, Florida.  

You have to have a great legal team.  School districts will out spend parents  2 to 1, and as much as 5 to 1 to make their point.  Other parents should not tread here.   See the Hamilton County School District articles to see what I am talking about. You need to find attorneys with a passion to get your child an education and produce a big bang for every buck you spend.

17.  July 10, 2005 Update

The Polk County School District did ask Federal Judge Susan Bucklew to reconsider her ruling in Document No. 71: Polk County School Board's Motion for Reconsideration Adopting Magistrate Judge's Report & Recomendation (Doc. No. 70) (5 pages) .  Greg Scharff, the school board's outside counsel, filed the motion June 28, 2005.

The next day, Judge Bucklew issued an Order regarding the motion, saying that: (1) Defendant's Motion for Reconsideration (Doc. No. 71) is DENIED as to Defendant's arguments regarding estoppel; the Court reserves its ruling as to which IEP is A.S.'s stay put placement.  (2)  Plantiffs are directed to file a response to this motion, addressing only the stay-put placement issue, by July 15, 2005.  On July 8, 2005 Tim Weber and Andrew Lennox filed Document No. 75: Plaintiffs' Response to Polk County School Board's Motion For Reconsideration Adopting Magistrate Judge's Report and Recommendation (Doc. No. 70) and Memorandum of Law (Doc. 75) (15 pages).   

We are now awaiting an order addressing the stay-put issue.

Also filed by Greg Scharff on June 30, 2005 was Document No. 73: Polk County School Board's Dispositive Motion for Judgment on the Record (Doc. 73) (21 pages).

Tim Weber and Andrew Lenox filed Document No. 74 on June 30, 2005 Plaintiff's Dispositive Motion for Summary Judgment and Supporting Memorandum of Law (Doc. 74) (17 pages).

The attorneys for both sides are now preparing responses to the dispositive motions.

18.  July 12, 2005 Update

The Polk County School District and Greg Scharff do not intend to permit Drew back in the school system. 

Yesterday, July 11, 2005 Mr. Scharff filed Document No. 76:

In this document Mr. Scharff argues that we raised a new issue in Document No.'s 74 and 75, and wants an opportunity to address them. 

Responding the same day, our attorneys filed Document No. 77:

On July 18th, 2005, United States District Judge Susan C. Bucklew issued an order , document number 78, that rejected Defendant’s [School Board's] arguments on the issue of A.S.’s stayput placement. As such, Defendant’s motion for reconsideration of this issue is denied, and Defendant is directed to return A.S., as soon as practicable, to his educational placement as it existed under the October 6, 2003 IEP during the pendency of these proceedings.

It was ORDERED AND ADJUDGED that:

(1) Defendant's motion for Reconsideration (Doc. No. 71) is DENIED; and

(2) Defendant's Motion for Leave to file Reply Brief (Doc. No. 76) is DENIED. 

Drew is to go back to school until after the trial and the court resolves the issues and has ruled. 

School Board appeals "Stay Put" to Circuit Court

But what could the School District do to make it even more expensive for the parents?  Appeal the federal judge's rulings on the "stay put" issues to the United States Court of Appeals for the Eleventh Circuit.  The School Board appealed the orders in Document Numbers 70, 72, and 78 the same day as the order, July 18th.  Document numbers 79 and 80 (July 19th) were prepared by Mr. Scharff for this purpose.

On July 25th, Greg Scharff notifies us Drew will start school August 3rd

On July 25, 2005, Greg Scharff wrote our attorney a letter saying:

The School District of Polk County pursuant to the Judges order will be implementing the stay-put order at the start of School on August 3, 2005.  The school district has not yet determined the precise location due to the shortage of portables.  However, rest assured that the district will be ready and able to implement the October IEP as ordered on that date.

July 27th we request meeting and information on teachers and location

On July 27th, Tim Weber, our attorney, wrote a letter asking for information regarding the qualifications of the teacher and aide the school district had selected to teach Drew and the location of the classroom.  Drew had been out of school for over 14 month, and the transition back to school would be very difficult for him.  We needed to be sure they had de-escalation training, restraint training, and the like.  We did not want to just drop Drew off on the first day of school not knowing if he and the staff would be safe.

Before every school year, given Drew's disabilities, Janie and I had met with the teacher and the aide.  We don't like to discuss Drew's diagnosis and symptoms in from of Drew over and over and over. Often we also were able to arrange for Drew to meet the teacher before the first day, or at least drove him to the classroom, so he would "know" what was going to happen and where.  For Aspergers students, this pre-school groundwork helps reduce the first day tensions that can literally overwhelm them.

The day before school, again request meeting with teacher prior to Drew starting school.   

On the morning of August 2, we still had not received any response to Tim's July 27th request.  Drew was to start school the next day.  He was very anxious as to where he would be going to school and who would be his teacher and his aide.  The morning of August 2nd, I emailed Teri Bronson, the ESE Area Coordinator, and copied the School Superintendent, asking for a meeting with Drew's teacher and aide, and the proposed location. 

It wasn't until 2:30 p.m., that our attorney received a letter from Greg Scharff giving us the names of the teacher and the aide and the school were Drew would be going.  He did not respond in any way as to the training they had.  At 3:29 p.m., I finally received an email from Teri Bronson, saying that the teachers had the experience needed, and to meet at her office at 8 a.m. in the morning and we would go to the classroom from there.  Clearly there was no intention to allow us to meet with the teacher and the aide in advance.

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Unfortunately,  I have not updated this portion of the website.  A thumbnail - the school board appealed the district court judges order to circuit court in Atlanta and won about 6 months later.  They kicked Drew out of school yet another time shortly thereafter.  The federal district court's effort to mitigate the damage done due to Drew's removal from school was not permitted by the circuit court.  As of April, 2008, Drew has not been allowed back in school.  Drew remains in our home, with a care provide working from 8 a.m. to 6:15 p.m., Monday through Friday.   ______________________________________________________________