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Ruling Renews Debate About Special Education : Schools: Capistrano district lost court appeal over student put into a private program. Among issues is whether behavioral problems are factored into placement decisions.

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TIMES STAFF WRITER

After he flunked every course from gym to math in his first year of high school, Jeremy Wartenberg--and his parents--squared off with the Capistrano Unified School District over how much one-on-one attention the special-education student should receive.

The Wartenbergs maintained that Jeremy’s troubles stemmed from attention deficit disorder, a learning disability for which he has taken medicine since infancy.

School officials insisted Jeremy’s case was mainly one of bad behavior: He would peddle cigarettes on campus, swear at his Capistrano High School teacher, and threaten his classmates, yelling “I want to kill you,” according to officials’ testimony contained in court records.

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When district officials reduced Jeremy’s one-on-one tutoring, the teen-ager’s parents enrolled him at a private Irvine academy for children with learning disabilities and asked the Capistrano Unified School District to pick up the $20,000-a-year tab for Jeremy’s schooling in 1990 and 1991. The school district did, but brought a lawsuit against the family in federal court in Santa Ana.

In a July 5 decision, the U.S. Ninth Circuit Court of Appeals ruled that the school district must pay for Jeremy’s tuition, transportation and attorney’s fees.

The decision, the first such dispute in the school district’s 30-year history to reach federal court, appears to resolve the troubling question of whether children with both a learning disability and behavioral problem can receive special-education services.

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Joyce Eckrem, a lawyer with the California Department of Education, said the court’s opinion would make school districts more cautious in their placement decisions. “The court is saying that the intensity of the disability, whether it is mild or severe, doesn’t determine a child’s placement [in a private school],” said Eckrem, noting that it was the first time a Ninth District panel addressed the question. “What really matters is the individual needs of the child.”

But officials at Capistrano and other Orange County school districts say the court decision could be disastrous.

“This decision has significance for the entire nation,” said Ronald D. Wenkart, the chief lawyer for the Orange County Department of Education, who filed an appellate court brief supporting the school district.

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“If this [court decision] is saying that every socially maladjusted child is eligible for special education and residential placement, it will bankrupt all the school districts in the United States.”

Not to be overlooked in the dispute is a legal bill totaling $360,000, an amount that could have funded the education of 100 public school students for a year.

Wartenberg, now 21 and the father of an 18-month old girl, has since graduated from high school and is working at an uncle’s warehouse in Michigan. His parents, Wayne and Charlene Wartenberg, declined to reveal where he is living.

The Ninth Circuit decision might not be the last word on the issue. Trustees of the Capistrano Unified School District will meet next week to decide if they should hire a constitutional law expert to take the case to the U.S. Supreme Court.

Cases such as the Wartenbergs’ seldom reach federal court and are even rarer at the Ninth Circuit court level. A notable exception involved Jimmy Peters, a 6-year-old Huntington Beach kindergartner whom the Ocean View School district tried last year to oust from class because of his violent outbursts.

In that case, a federal district court judge ruled that the school district failed to prove that Jimmy, who suffers from a communication disorder of disputed severity, was a serious danger to himself or his classmates. The judge sent him back to class, where protesting parents waited with placards.

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Jimmy has been receiving one-on-one schooling at home since the federal judge’s decision. Ocean View Supt. James R. Tarwater said last week that the district will return to court soon to force Jimmy’s father to allow his son to undergo a routine assessment to determine placement.

Jimmy’s case resembled Jeremy Wartenberg’s in that both disputes involved the students’ individualized education program. Under federal law, school districts must come up with such a program and provide “a free appropriate public education” for learning disabled students.

In the Wartenberg case, school district officials went to considerable lengths to support allegations that Jeremy was “an antisocial person.” Outside school, Jeremy “lied, shoplifted, set fires and kicked his pregnant mother in the stomach,” threatening to kill his unborn baby brother, court documents show. “For a period of five months, Jeremy’s mother and his little brother moved out of the family residence purely out of fear of Jeremy,” the district alleged.

Capistrano officials also contended that their plan, which included three periods each day of one-on-one tutoring, was sufficient to teach him.

Jeremy’s mother, Charlene Wartenberg, acknowledged that her son had “some serious problems, but school officials blew them out of proportion.”

“Things have happened in Jeremy’s lifetime, but they were not lumped together like that,” she said. “It bothers me that the district brought in all this personal information about my son, and they’ve caused some long-term problems for [him]. They were totally unprepared and not interested to work with a child like this. We knew if he was going to survive in this world, education was very important, so we fought.”

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The Wartenbergs exercised their right to have an administrative hearing officer review the school district’s program, and enrolled their son at the Mardan Center of Education Therapy in Irvine, a state-certified private school.

Capistrano officials normally pay tuition and transportation fees for a few students who qualify for the specialized treatment offered by Mardan, but they insisted that Jeremy had only a “mild learning disability” and that his conduct disorder was really the main problem. Children with conduct disorders are not covered under the law, the district contended.

Doreen Lohnes, the district’s director of special education, said school administrators objected to Jeremy being placed at Mardan because they believed they “didn’t need to provide extensive services for problems that came from bad behavior.”

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“We have to reserve special-education services for individuals [who need them],” Lohnes said, defending the school district’s decision to pursue legal action. “If we set a precedent to pay for every teen-ager who chooses not to follow school rules, the coffers would not be there for children who need them.”

The issue involving who qualifies for special education has divided educators and parents of disabled children across the nation. In Orange County, about 10% of the 410,000 children in public schools receive special-education services, which can range from $2,000 for speech therapy to $100,000 a year to send an emotionally troubled student to an out-of-state psychiatric institution.

Some Orange County school administrators traveled to Washington last month to lobby Congress to make key changes to the Individuals With Disabilities Education Act. They hope to make it more difficult for parents to claim tuition reimbursement and attorney fees from school districts, and easier to transfer or expel disabled students who cause problems not related to their handicap.

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This week, California’s Supt. of Public Instruction Delaine Eastin will submit her recommendations to a congressional committee responsible for the IDEA’s reauthorization, according to Paul Hinkle, a special-education consultant to the state agency. Hinkle said Eastin’s memo to the committee will address funding, tuition reimbursement and attorney fees, but he declined to elaborate.

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Advocates for children with disabilities say the educators’ lobbying efforts are misguided.

Maureen Graves, a Costa Mesa lawyer and mother of twin boys with autism, said some school districts are too stingy in evaluating disabled children.

“If you want a system where children with disabilities fend for themselves and die young, then the present assault on special education makes sense,” said Graves, who represents school districts and parents of disabled children. “But I don’t think we want to do that, so we should invest money in children’s education.”

In the Wartenberg case, an impartial hearing officer found that Jeremy Wartenberg’s failure at school “was caused by specific learning disabilities, not mere social maladjustment, and that his learning disorder was not primarily the result of emotional disturbance.”

U.S. District Judge Alicemarie H. Stotler, who heard the district’s appeal of the hearing officer’s decision, and the Ninth Circuit panel agreed. The fact that Jeremy’s grades improved dramatically at Mardan also justified the Wartenbergs’ decision to place him there, they said.

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But in a dissenting opinion, Judge Warren J. Ferguson of the Ninth Circuit wrote: “The evidence is clear that Jeremy’s behavioral problems resulted from his conduct disorder and not his attention deficit disorder.”

“When he wanted to control his behavior, he succeeded in school; when he chose not to control his behavior, he failed,” added Ferguson, a Fullerton resident.

But Jeremy’s father dismissed the dissent.

“We’re thrilled that we’ve won,” said Wayne Wartenberg, a battalion chief with the Long Beach Fire Department. “We knew that we did have a kid with problems, but we wanted our son to have the best possible education and we knew our rights.”

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