- The Fresno Bee
Saturday, Jun. 16, 2012 | 10:39 PM
Last week, Krista Uribe walked out of Duncan Polytechnical High School one last time and, like her graduating peers, said goodbye to high school.
But it's still not over for her family and Fresno Unified, who remain locked in a legal battle over whether Krista should have attended Duncan for the past 31/2 years.
The Uribes say Krista, who is intellectually disabled, was happy and making progress at Duncan. The family and school district had signed a document agreeing to keep her there. But the district has said that after almost six years at Duncan, Krista's time to transition out was overdue.
Twice, Fresno Unified removed her from the high-performing magnet school. Twice, a state administrative judge ruled she should stay there.
The district disputed the decision, landing FUSD and the Uribes in administrative court. A judge's ruling, expected in August, will help determine whether the district violated federal education rules and Krista's rights.
In all, Fresno Unified has spent at least nine days in administrative court arguing against Krista's enrollment in Duncan. Documents show up to 20 teachers, staff and administrators have been called to testify -- many of the same teachers who have described Krista as a mild-mannered, courteous student who has never had a discipline problem.
The Uribes are not the first special education family to engage in a drawn-out battle with the district. But to special education advocates and attorneys familiar with it, Krista's case is one of the more perplexing. They say it illustrates the determination of a district to win at all costs.
Prudence Hutton, a Valley attorney who specializes in special education law, said the Uribe case is an example of Fresno Unified's "scorched earth" tactic with special education families. Hutton said the district has a pattern of trying to win by whatever means necessary, even if it means sacrificing the student's well-being.
In the past year, the district has hired at least one private investigator for the Uribe case and directed staff to ban 20-year-old Krista from school activities, including lunch with other Duncan students, according to documents and interviews with special education advocates and attorneys familiar with the case.
District officials declined to answer questions about the Uribe case, citing rules about ongoing litigation and student confidentiality. Sang-Jin Nam, the attorney hired by Fresno Unified to represent it in the case, also declined to comment.
Legal fight
Krista started at Duncan in January 2007. The district wanted her to go to Roosevelt High, and felt Duncan's academically rigorous program was an inappropriate choice, according to testimony from 2009, the first time the Uribes and Fresno Unified met in administrative court.
Krista's IQ was 50-60 -- the range for mild to moderate mental disabilities. She reads at a first- and second-grade level, although she has taken general education courses with the help of aides.
But Krista's mother, Alice de Alba-Uribe, disagreed and applied to Duncan, and Krista was accepted in the school district's lottery system.
The district and de Alba-Uribe agreed on an individualized education program to set goals for Krista's learning. Federal law requires that districts and families of special ed students jointly develop an IEP, which is reviewed by a team of parents and educators at least once a year. It can be altered only when both agree; if the parents disagree, the school district is supposed to work with them to find a solution, or the parents can ask for the state to intervene.
By many accounts, Krista progressed academically and socially at Duncan. She was a willing student with a good attitude and was "successful" in most classes, according to court testimony. Well-behaved and cooperative, Krista's teachers said she generally was "a pleasure" to have in class.
Court records state: "District concedes that student's behavior was never the issue."
So when district officials told de Alba-Uribe to transfer her daughter to Hoover High by December 2008, Krista's junior year, "we were shocked," de Alba-Uribe said.
A judge with the Office of Administrative Hearings, the state agency that decides special education disputes, ruled in early 2009 that Krista could stay at Duncan. She was making progress, didn't cause trouble and was expected to continue to do well, according to the ruling.
But Fresno Unified would disenroll Krista twice more this school year. Each time, Krista was out of school for weeks. The first time, de Alba-Uribe got a lawyer to help get Krista back in school. After the second disenrollment, in January, she called on a state judge to intervene; the judge ordered that Krista stay at Duncan.
The district challenged: "Please do not bring Krista to school," wrote Susan Kalpakoff, special education manager, in a January email. "District is filing papers with the state to dispute."
That dispute led to the administrative court hearing in April.
De Alba-Uribe said she paid several visits to the central office to meet with Superintendent Michael Hanson; each time, staff turned her away.
Sandra Hammond, executive director of Education Perspectives for the Central Valley, an education advocacy organization assisting de Alba-Uribe, sent a letter to Hanson in January asking him to intervene and put an end to the legal battle. Hammond said she has not received an answer.
"When it comes down to it, you're going to be spending thousands and thousands of dollars to fight this one parent," Hammond said. "There's no discipline issue here whatsoever. There's nobody in danger."
The state Department of Education was billed at a rate of $230 per hour to pay for administrative judges to hear the case.
District officials declined to answer questions about legal expenses for disputes with families of special-education students.
The past few years have taken a financial toll on the Uribe family. De Alba-Uribe, a single mother of four, has taken time off from her job as a claims processor for district meetings and hearings, and the income loss hit the family hard.
Private investigators hired by school district
In Krista's October 2011 IEP, the document that was to guide steps for her transition out of high school, the district decided Krista would leave Duncan last December and move on to an off-campus, adult transition program for disabled students.
De Alba-Uribe disagreed, so Krista was to stay at Duncan until both sides came up with a solution.
"The parents, they're the ones with the veto authority," said Joe Bowling, executive director at the regional board for the State Council on Developmental Disabilities, an independent state agency that helps connect disabled individuals and their families with support services.
"Any time there is any change to the IEP, there needs to be a meeting, and the team needs to get together and discuss those issues," Bowling said. "The school can't just randomly make changes."
Dawn Joest, an advocate with the Council on Developmental Disabilities, attended two Fresno Unified meetings with de Alba-Uribe in 2011.
"They just had their mind set up that they just did not want her to go to Duncan," she said.
Felicia Puente of the Central Valley Regional Center, a state-funded service center for people with disabilities, also attended meetings with de Alba-Uribe.
In a Feb. 6letter to the Office of Administrative Hearings, Puente wrote that "Alice was not always permitted to actively participate" in decisions about her daughter's education and "Fresno Unified has not always been open to communicating with Alice or providing her with information she has requested."
FUSD denies this in court documents, saying the administration has communicated with de Alba-Uribe and she actively participated in her daughter's education.
In late 2011, de Alba-Uribe says, Fresno Unified hired a private investigator who called her at home, identifying himself as Benjamin Tamez.
According to court documents, the investigation was prompted by complaints de Alba-Uribe had made about Krista's aide.
Tamez, a private investigator and former Parlier school board member, was on the witness list for the April hearing, which was closed to the public.
Fresno Unified risk management director Andrew De La Torre stated in an email that the mother's concerns about the aide were dismissed when de Alba-Uribe refused to cooperate with the investigator.
De Alba-Uribe told FUSD she never refused -- but she never had a fair chance to speak with the investigator. She requested a copy of the investigator's report, but the district declined, citing confidential personnel matters.
Phone calls placed to Tamez's listed residence in Parlier were not returned. The district declined to talk about the private investigator, but an attorney for the district said: "The district uses at times investigators to do research on individual cases, whether it's special ed or general ed."
De Alba-Uribe said a second investigator was following her, too, and in February reported a suspicious vehicle to the Fresno County Sheriff's Office. A sheriff's deputy traced the license plate of a vehicle and found it was registered to Oliver, Thomas, Caeton, Pierce & Patty, an investigations firm in north Fresno, according to a Sheriff's Office spokesman.
The firm confirmed with The Bee that FUSD does hire its private investigators; it declined to respond to questions about the Uribe case.
In recent months, the district barred Krista from some school functions and extracurricular activities and said she was not allowed to eat lunch at Duncan. Emails sent by Nam, the Fresno Unified attorney, said Krista was excluded because she is a part-time student enrolled in Duncan's career-training program and her IEP doesn't allow for extracurricular activities.
A district spokeswoman said part-time students are allowed to participate in all school activities.
An attorney de Alba-Uribe briefly employed in fall 2011 contested the district's treatment of Krista, saying it was her right to participate in field trips and club meetings, like all students. The Bay Area attorney, Dria Fearn, and the Uribes parted ways shortly after -- de Alba-Uribe owes her about $6,600, according to bankruptcy court documents filed by de Alba-Uribe.
Krista finished Duncan on Friday with a certificate of attendance, an alternative for students who can't complete graduation requirements.
"It bothers me that people say that I don't belong there," she said. "They shouldn't treat me different because I'm disabled."
Still, she smiled when she spoke about Duncan; she had good friends there and enjoyed her classes.
"It's good to me," she said.
Krista is quiet, at times even withdrawn, according to her teachers. She also is bright-eyed and eager to please, and talks lovingly about her favorite books, her friends and her pet guinea pigs and bunny. In some ways, she's like any other girl her age: she loves the "Twilight" series, and spends her weekends shopping and doing her nails.
"In some areas, she's right where she's supposed to be," de Alba-Uribe said.
Many in special ed
In a total population of 74,000, Fresno Unified serves 7,300 special education students each year.
Sue Pellegrino, FUSD special education local plan area director, described in general what the district is required to do for special education students: provide services from their first day of school up to age 22. She said the district regularly creates and adjusts programs to better serve students' unique needs.
Krista's age and the length of her stay at Duncan -- 51/2 years -- were part of the district's argument to move her to another program. She already was attending half-time an adult transition program at Fresno City College.
De Alba-Uribe said she didn't want Krista to linger at Duncan, but the district's transition programs didn't offer a suitable alternative.
Some advocates at the Central Valley Regional Center say that at 18, most special education students will enroll in a transition program, run by the district or county. Fresno Unified has transition programs at the Instructional Media Center, Cesar Chavez Adult Education Center and Fresno City College.
Not all students move on at 18. The district has 558 special education students who are 18 or older.
Still, "A student is going to have more personal success transitioning off the high school campus and into an adult program," said Jami Hamel De La Cerda, founder and chief executive officer of the Diamond Learning Center, an education program offered through the CVRC. "When you have a child with a disability, every milestone you miss is heartbreaking."
Denise Allshouse, founder of the Down Syndrome Association of Central California, agrees that it's important for special education students to move on.
"They get a lot out of those adult transition programs," she said.
As the mother of four disabled children in Fresno Unified schools, Allshouse has had her share of battles with the district, but generally has been satisfied with the accommodations for her children's needs, particularly in tight budget times.
"They have to comply with the law, but they aren't provided the funding to meet it," she said. "They do the best they can."
District officials said they work to resolve any family disputes out of court, at the lowest possible level.
That may have been true in the past, said Bowling, but the current administration can be hostile to parents. Before Hanson's administration, Fresno Unified cases were some of the easiest to resolve, he said.
"Not so much these days," said Bowling, the local Board for Developmental Disabilities executive who mediates eight to 12 FUSD cases a month. "There's less collaboration ... I'd attribute that to the administration."
Bowling said the special education staff is among the best in the state, but the downtown administrators "do not appear to me to be as parent friendly and parent sensitive as they were in the past."
Since August 2007, four cases have been resolved by an administrative law judge, according to the OAH. Including the Uribe case, another two decisions are forthcoming. And according to reports posted on the OAH website, there have been more than 30 student-filed due process complaints against Fresno Unified since July 2007.
Fresno Bee reporter Pablo Lopez is entrenched in a battle with the district over the expulsion of his special-needs son, which has escalated from the district to the county board of education and now into two separate-but-related legal battles, according to a May story reported by California Watch.
Lopez says the district improperly expelled his son by violating procedural rights and failing to fully consider his disability; along the way, Lopez alleged, Superintendent Hanson tried to make a secret deal with him to make the dispute disappear.
Fresno special education advocate Tony Pings fought Fresno Unified in a high-profile case several years ago involving his autistic son, Adam, who is now 23.
Pings won his case. But he said most parents don't fight as hard or as long as he -- or de Alba-Uribe -- did for fear of retaliation.
"Most parents want to placate the district to get the best situation for their child," Pings said. "And that's understandable, but that's a horrible system."
