U. S. Appeals Court Orders Transfer of Disabled Boy : Education: Ojai district must send him to a private school in L. A. and pay all costs, including living expenses, ruling says. Officials are up in arms.

Elizabeth Jackson knew the odds were against her adopted son: He was deaf, blind and physically disabled.

But the Ojai woman thought that after seven years in a Ventura school for the severely disabled, he had made no progress at all.

Bion Jackson, then 11, still had not been toilet-trained, was not close to taking his first step and could not communicate either verbally or in sign language.

“I think that if Helen Keller had been raised in this same school district, she’d be in an institution,” Jackson said.

So in 1990, she asked the Ojai Unified School District to transfer her son to a private school in Los Angeles that specializes in students with multiple severe disabilities. Under federal law, she told school officials, the boy was entitled to as much. They denied her request.

She took her case to the state Department of Education--a decision that touched off a three-year legal battle that finally paid off last week when a federal appeals court ruled in her favor.

Local school officials must comply with the requested school transfer and pay the costs of schooling Bion, a three-judge panel of the U. S. 9th Circuit Court of Appeals ruled.

The panel also ruled that educators must pay Bion’s grandparents in Los Angeles to care for him when he is not in school, a decision that has upset both state and local education officials.

Agreeing with a mediator who had heard testimony in the case earlier, the appeals court panel found that Bion, now 14, would not be able to live with his immediate family because his new school--Foundation for the Junior Blind in Los Angeles--is 85 miles away from his Ojai home.

The boy’s grandparents in Los Angeles agreed to allow him to live with them, but not without compensation, which the court ruled is a reasonable demand given Bion’s severe disabilities.

Educators said this is the first case they can recall in which a federal court has ordered a school district to pay a child’s relatives for this kind of care.

Barry Zolotar, deputy general counsel for the state education department, said he fears the ruling in the Jackson case, if not reconsidered, could open the door for other families in Ventura County and across the nation to ask for compensation in similar situations.

“We would be concerned if the results in this case could be used across-the-board for any student,” Zolotar said.

Everyone involved agrees that Bion’s case has been complex, one that will not yield any clear-cut winners in the end.

“The whole thing has really been a painful episode in our family,” said Bion’s father, Richard Jackson, 54. “It’s really difficult trying to keep the family together and fight the school board.”

The struggle began at the end of the 1989-90 school year.

Each year before that, Bion’s adoptive parents and Ojai school officials had come up with an Individual Education Plan, as mandated by federal law, with goals and objectives for his projected development in the upcoming year.

But the situation changed in April, 1989, when school officials informed Jackson that her son’s school, Boswell School in Ventura, was being restructured. In its place, they said, Bion would be reassigned to Ventura County’s Douglas Penfield School for Ortho Handicapped, one of four schools in the city of Ventura for the severely disabled.

That May, when she met with school officials to develop another educational plan for her son, Bion’s mother asked that he be placed somewhere other than Penfield, at the district’s expense.

She told officials that she had been unhappy with his development at Boswell and did not believe that Penfield would be any better since no school in the county system had a full-time deaf/blind specialist on site.

Without an attorney, but with an advocate from the Greater Los Angeles Council for the Deaf, Jackson asked the state Department of Education for a hearing on the matter.

Jackson and the advocate, Coleen Ashly, pored through school documents in an attempt to find evidence that proved what they believed: that Bion was not benefiting from his education in Ventura County.

Penfield was not designed for students with Bion’s disabilities, they concluded. It lacks handrails and other necessities that would be required to teach Bion to walk, for instance, according to Ashly.

“So he crawled the whole day,” she said.

Wayne Saddler, principal at Penfield, said: “It’s not an issue of handrails. It’s an issue of learning.”

That September, Jackson and the school board each took their stories to Raymond C. Brown, a mediator for the California Special Education Hearing Office selected to resolve the dispute.

Brown requested an assessment of Bion’s abilities by the California School for the Blind, which specializes in evaluating children such as Bion.

The mediator determined that Bion was not being properly taught in accordance with the federal Individual Disabilities Education Act, which requires disabled students to be given the same opportunities as normally functioning students.

In his final report, Brown concluded:

“After seven years in the public school system in Ventura County, Bion still does not have a language, is not toilet-trained, cannot feed himself, cannot walk and has developed very few self-help skills.”

The mediator gave school officials 45 days to identify a state-certified private school that could benefit Bion. School officials, after consulting experts in the state on the matter, recommended the same school for Bion as did the boy’s parents: the Foundation for the Junior Blind in Los Angeles.

While all seemed settled in the matter, the case was still a long way from being finished.

First, the Foundation for the Junior Blind did not have any vacancies for the kind of round-the-clock, residential placement that Bion required.

That prompted Bion’s mother to suggest her son live with his grandparents in Los Angeles at the expense of the Ojai Unified School District and the Ventura County superintendent of schools office. That arrangement, she proposed, would be a temporary one until a vacancy opened at the Foundation for the Junior Blind.

Brown agreed with her plan and ordered that it be carried out. The cost would have been about $1,400 a month, including $300 a month for rent, $35 a day for care-taking fees and $5 a day for food.

But both the Ojai and Ventura County school systems balked, appealing the decision to a federal court judge in Los Angeles on grounds that the mediator hadn’t really proved that Bion’s educational needs weren’t being met in Ventura County.

U. S. District Court Judge Manuel L. Real, chief judge for the Central District of California, agreed with the schools and overturned the mediator’s ruling earlier this year. But the Jacksons appealed, arguing that Real’s decision was improper.

Not only did the appellate court overturn Real in its ruling last week, it ordered school officials to cover the Jacksons’ legal fees in this case. The district court is to determine those fees, but David R. Ellison, who represented the Jacksons, said the bill comes out to about $55,000.

Ellison, who had accepted the case pro bono as a favor to the Jacksons, says he wants to be paid for his work now that the appeals court has ordered it. He argued that the school district had no business taking the matter as far as it did.

“They probably figured the Jacksons would dry up and blow away,” he said of school administrators.

Ojai Supt. Andrew Smidt said the school district, which is asking the 9th Circuit to reconsider its ruling, has fought the case--and continues to fight it--because educators believe that Bion can benefit from an education at Penfield School.

“There is not a need for private school placement in this case,” Smidt said. “In my mind, the question is not what services are needed, but where are they to be provided.”

Saddler, principal at Penfield, said seven other deaf and blind children attend the school and appear to be benefiting from their education. Saddler also said Penfield has a vision specialist who works “very well” with those students.

“The philosophy of our program is to make the students independent,” said Saddler, who was not familiar with the specifics of Bion’s case.

Born Feb. 2, 1979, in the Oakland area, Bion had rubella syndrome. His mother, a 15-year-old girl, had the measles shortly after he was conceived.

Bion spent the first two years of his life in the hospital and the third one in a respite facility before being adopted by the Jacksons in 1982. He had some vision, but gradually lost it because of glaucoma, Elizabeth Jackson said.

She said Bion, who was no bigger than a baby when she brought him home at the age of 3, slowly grew in size. With his straight, black hair, he quickly melded with the rest of the Jackson family, which now includes six natural children and six adoptees.

“His biggest problem is he is not a big eater, so we have to force him to eat,” Jackson said. “He loves playing with ropes. He has a swing. He can climb on it. He can turn and swivel.

“He could be a half-inch from the floor, and he would know it,” she said. “He has intelligence. . . .”

But if he will ever again get to demonstrate that intelligence to specialists for the deaf and blind is not certain.

Jackson said this marks the fourth straight year that Bion has not gone to school--ever since she first asked that he not be sent to Penfield.

She said child social services workers have threatened to remove Bion from her custody for keeping him away from classes, but that she was told that would not happen as long as the battle over his school placement is being litigated.

“The kid probably will never get to school, which is sad,” his mother said. “But I hope it (the case) will help some other child. It’s a nightmare.”

She said school officials have told her that they were going to fight the case “all the way to the (U. S.) Supreme Court.”

And that would be the only place to take it if the appeals court refuses to reconsider its order.

“We’ll take it step by step,” Smidt said.