LOS ANGELES UNIFIED SCHOOL DISTRICT v. GARCIA

Respondent’s Answer Brief on the Merits

Cal.July 12, 2012

SUPREME COURT 9th Circuit No. 10-55879 S199639 7 JUL 12 2012 IN THE SUPREME COURT OF CALIFORNIA Frank A. McGuire Clerk En Banc —_—— Deputy LOS ANGELES UNIFIED SCHOOL DISTRICT, | Plaintiff and Appellant, V. MICHAEL GARCIA, AN INDIVIDUAL, Defendant and Appellee. ANSWERINGBRIEF OF DEFENDANT AND APPELLEE, MICHAEL GARCIA DISABILITY RIGHTS LEGAL MILBANK, TWEED, HADLEY & CENTER MCCLOY, LLP Paula D. Pearlman, #109038 Linda Dakin-Grimm, #119630 Michelle Uzeta, #164402 ' Daniel M.Perry, #264146 AnnaRivera, #239601 Delilah Vinzon, #222681 800 South Figueroa Street, Ste 1120 Hannah L. Cannom, #245635 Los Angeles, CA 90017 601 South Figueroa Street, 30th FI. Telephone: (213) 736-8366 Los Angeles, CA 90017 Telephone: (213) 892-4000 RECEIVED JU 09 2012 CLERK SUPRE'’'~ “QURT 9th Circuit No. 10-55879 S199639 IN THE SUPREME COURT OF CALIFORNIA En Bane LOS ANGELES UNIFIED SCHOOLDISTRICT, Plaintiff and Appellant, v. MICHAEL GARCIA, AN INDIVIDUAL, Defendant and Appellee. ANSWERINGBRIEF OF DEFENDANT AND APPELLEE, MICHAEL GARCIA DISABILITY RIGHTS LEGAL MILBANK, TWEED, HADLEY & CENTER MCCLOY, LLP Paula D. Pearlman, #109038 Linda Dakin-Grimm, #119630 Michelle Uzeta, #164402 ' Daniel M. Perry, #264146 AnnaRivera, #239601 Delilah Vinzon, #222681 800 South Figueroa Street, Ste 1120 HannahL. Cannom, #245635 Los Angeles, CA 90017 601 South Figueroa Street, 30th Fi. Telephone: (213) 736-8366 Los Angeles, CA 90017 Telephone: (213) 892-4000 TABLE OF CONTENTS INTRODUCTION..... oo. ceeesececcccseeceessessnecececeresseaaanaceecevessssaecesssesectseesecseeesaeeeseeeeeeenea 1 STATEMENT OF THE CASEQo... cece eecceeeeesesneceeeneesesssneneececceeceessneeusoneeeeeeeeeeseseesenas 3 SUMMARYOF ARGUMENT 1... ce eceeeseeeeneteseceneeenseeeacnenenseeeensaeeneensneneenseeretereaesees 5 STATEMENTOF FACTS(0... eee eecesesccceeeeecessneneesseceserensnaaeeeeceeeescececesssneaaeeceseeeseesaes 6 ARGUMENT...iceccccsecsseccccnsceeereescssateceececesseeecesaneeeeesesesssassaeescaeeeeeseeerseeeeaseneees 12 I. Section 56041 of the California Education Code Dictates the Provision of Special Education and Related Services to Individuals Detained in County Jails............. 12 A. Under the Plain Language of Section 56041, the District where a Detained Student’s Parents Reside Is Responsible for Providing Special Education and Related Services During Detention in County Jailsoeceeeeeeteeteeeeeetenes 12 B. Because Section 56041 Is Clear on Its Face, the Court Need Not Look Beyond the Plain Language to Determine Its Applicability Here...eeeeeeeees 15 C. The Legislature’s Choice to Enact Specific Statutes Allocating Responsibility in Other Situations Is of No Consequenceto the Issues Before this Court........... 17 D. LAUSD’s Narrow Application of Section 56041 Does Not Comport with the Statutory Schemeor Prior Administrative Decisions...............sccseseeseseeeeeeeeeens 20 E, Berkeley Is Inapplicable to the Present Case ...........ecescceesescecceteeseeseneeseeensesseens 24 1. Berkeley Is Factually Inapposite.......eecesseensceseecesseeesnceeceeerseeecenesseeeesaes 24 2. Moreover, Because Berkeley Relied on Section 56028 of the California Education Code, It Is Distinguishable from the Instant Case.....................0.. 26 F, The OAH’s Application of Section 56041 Is Consistent with the Remainder of the California Education Code.......ecceecsccccssestesseessecesceeeeseeccsseessssseeessesseceneess 27 TABLE OF CONTENTS (Cont'd) II. Application of Section 56041 of the California Education Code Would Not Lead to Absurd Results, Nor Would It Be Impractical to Implement....................cc000e29 WI. This Court Need Not Wait for the Legislature to Resolve this Issue, But Should Provide Certainty for Eligible Detained Student.00..... ieee seeeecscceceeeccceeseeeeeeeees 31 CONCLUSION0.cceecescessesseesrescssesseeesacecseaeeaeecnseessecesaeecsseeseaeceseseseseeessseesssaeeesnees 33 -ii- TABLE OF AUTHORITIES Page(s) CASES Am. Nat. Ins. Co. v. Low, 84 Cal. App. 4th 914 (2000) oo.ec cescesesessseesscareeessesecsceessenenseeneeseeecseseatseseetensteeeeaeeesens 19 Arlington Cent. Sch. Dist. v. Murphy, . 548 U.S. 291 (2006)ccc cccccccesccseessessseesenscseescacesecseseeseeseseaeseeceeecsessensecsesuseecssserscseeneaes 15, 32 Barr v. United States, 324 U.S. 83 (1945) oc ccecccsesseccescesessseeseescesesssseseessesessessessseessesseseesessensesseeeeseessseeeeseseeeecsesaes 18 BedRoc Ltd., LLC v. United States, 541 U.S. 176 (2004)cee ccceccessccssesesseseesseceescnsececsesssseesesecseseesecaecseeeesesaeeensesaeseeeesesseseeeenteas 15 Dyna-Med, Inc. v. Fair Employment & Housing Com., A3 Cal. 3d 1379 (1987) wccecccecccccsesssseeseeseesesesseseseesesesseecsessesseseesecseseescsaeessasesteetacenseaseass 19 Elsenheimerv. Elsenheimer, 124 Cal. App. 4th 1532 (2004) oo. ccceesseeteteceesesesenessaessenescessessesceecsesesenensteeeteseeeseneenss 19 Green v. Johnson, 513 F. Supp. 965 (D. Mass. 1981)...eeeecssecessecscseeeeseseneesaeeeesaeeseaeeeeeteaeessesenseeseats 30 Handberry v. Thompson, 446 F.3d 335 (2d Cir. 2006)......eeceeecccccsssecessneeceseeeessecesssnseessseseceseaasesseseceseesteeeessaas 30 In re Estate ofEarley, 173 Cal. App. 4th 369 (2009) 00.eeescesseecteteeesteeseeeesesacaeeussceseeseesenseseuseecessaeessenesaees 18 In re Hoddinott, “12 Cal.4th 992 (Cal. 1996) oo... ccesseesseeecseesecseesseeesseeeas esseeseeseeseeseeeessesseasseseesaeeneaases 21 J.S. v. Shoreline Sch. Dist., 220 F. Supp. 2d 1175 CW.D. Wash, 2002) oo. ceseseneesseseeereesstsseseeeenesssseneeeteacetseseaae 13 Katz v. Los Gatos-Saratoga Joint Union High Sch. Dist., 117 Cal. App. 4th 47 (2004) ooceecsecesseerseceessensesensnesesseenenseseenesesetseseacaessaeseseeeeaeaeneas 13 Khajavi v. Feather River Anesthesia Medical Group, 84 Cal. App. 4th 32 (2000)...ceeeeeeeeececseeeeeseseeenevetseeesesessesetseeeceseesceseeseseesessesesasesesesees 18 -111- - TABLE OF AUTHORITIES (Cont'd) Page(s) CASES Los Angeles Unified School District v. Michael Garcia, 069 F.3d 956 (Qth Cir, 2ODL) cecccccscccceccecesscceeseensecenssssssessescseescssesssessssseressesseesssseasesesenecaas 1,5 Moyer v. Workmen’s Comp. Appeals Bd., 10 Cal. 3d 222 (Cal. 1973) oo. eecssecceseeencceeeseecessnecsssseecsisessseesstsseesstesesssstsesssesesee LOD New Hampshire Motor Transport Ass’n v. Rowe, 448 F.3d 66 (1st Cir. 2006). ..ecccccccccccccecsseneesesesesensenecssesesessessesseseecesecssssesesecseeseeaeesassessesesees 18 Nken v. Holder, 129 S. Ct. 1749 (2009)ee eeeecececcescesescesesesccsenecsesecacecesesssecsecesesssessesesessseseesessesesataeeneatsnees 28 People v. One 1940 Ford V-8 Couple, 36 Cal.2d 471, 475 (Cal. 1950). ....cceeeecscecseeessscesseesscesseeecsnseserseseeesaseesssssseeeesateetensuss 22 Orange County Dept. ofEducation v. Student (OAH Case No. 2008120021) oo. ccccccccscsessesscseessesessesesseseesecsesecsecsesseseseeesscseesssceseseseeess 23 Student v. Berkeley Unified School District and Albany Unified School District, SEHO Case No. 2003-1989 ooo.ccceccesesessecssesessesesessesssesessesseseeevacsnescecssseeeeseseeseeseeeaspassim Student v. Cal. Dep’t. ofMental Health (OAH Case No. 2009050920)... eeesecsssscsceceeseceeseesseeesneeessseeenesesssseseessaessneceesseeseatenes 23 Student v. LAUSD, OAHCase No. 2007010772 (April 17, 2007) ....ceecccecsssesessssssessesesesesecsesessessesseasseseeeceess 23 Student v. Orange County Dept. of Educ., Irvine Unified Sch. Dist., and Calif. Dept. ofEduc. (OAH Case No. 2009090943) ooo. cecccccsssscesesecsssesecssesecsessacsecssccsccesssseceusreseesersecsecssnaeaceres 22 Student v. Orange County Dept. ofEducation and California Department of Education (OAH Case No. 2009020130) 0... ccccccecsesssssccseeseesessesesseeseesessessssesesseesssseacsesseceasensssveessens 23 Union Sch. Dist. v. Smith, 15 F.3d 1519 (Oth Cir, 1994) oocecessessesscsseeeseseensnessesensesesesesesesessaesceesesesaeseseeasseseens 13 United States v. Bates, 617 F.2d 585 (LOth Cir. 1980)oecceccsessececseeeeseseseeseeseseessesesesesesesesenecscscseeseseseeseasesans 19 -iv- TABLE OF AUTHORITIES (Cont'd) Page(s) CASES Van Scoy v. San Luis Coastal Unified School Dist., 353 F. Supp. 2d 1083 (C.D. Cal. 2005) oo. eeeeccseecssseseecetceeeseeeeseeeeceeeeecsesesseseeessssessens 32 STATUTES 20 U.S.C. § 14019) ooeeeeseseseseesesesceeesescscsessesesssesesesesnsassesesnensaeseenecsesseseseeneauesesceseseneseasess 12 20 U.S.C. § 1401(14) vssssesssneiaeeneeeteinsttinitnininntuniiintistnnsteinnstenieeee g 20 U.S.C. § 1401(26),(29) ee eeecccecscsecesscesececeescsescacsescsesestsnsecacanecsesuecesacaesesaeatansssneseseaneasanseeciss 7 20 U.S.C. § 1401034)oceeeesesceseeseseseensscseneseeeeencseaeeessseseenseesneeeseessesuceseceseneasaeeeananeaeseseasans 8 20 U.S.C. § 1412 eccecceseeesesssssseenseescsseescecneseseneseseensacsesesseeesesecueasaeacecaestsaseeasaseseneaeaesees 12,17 20 U.S.C. § LED21 2)(A)occ ecececcececeesesesesesescatecaeseeceesseaesesessseacacsusaesessnesesnssessaeseesenseesesesene as 30 20 U.S.C. § 14128) ee ceeceeeteseesesscecesssececscsesesececeanesecaesesesecucacecaccuseeesasaeansieassesesesacsessaceeeeeseees 13 20 U.S.C. § L4D2aD) veeccscessseeseessesessseseseseneascecssnenenesessueseseseceeaeeeucaeensseeseaseessesensatacensees 12 20 U.S.C. § 1412 (a) )(BYGI) occeencetsseeteeseeeetensaeseeeecsaeseaescecacaeasaeenssssensaesesssecseseeeeases 13 20 U.S.C. § 1412(a)(3) cceeeeccsecssssscceceseseeseseecsecsceescscseecensueacseseseseesesesvenssaesnsnessetseescseseasaneneasseeees 31 20 U.S.C. § L414))(A)oeeeeeeeeneneeesceeeesteeseneeeseeneeeaeens | sesseeesesesensaerecueasaeeneesneaeatataneseneessens 8 20 U.S.C. § 1414(A)(2)(A) sesssssssesssnssasnsenssssnoceassescetsiesntntvestentststsstnteeesetnetee 13 20 U.S.C. § L414(D)(2)(C)()DD oe eeeeeeceeeseeceseeeeeeseeeessesesesesceteaeseseessnesesesees. seceeseseseneetesteneseseaess 31 20 U.S.C. § L415(D)(6) eeecece cesesesesesseseseseeesecenseceacacecesusecaesenesasasseseneasanevssessseseecsseneneseaeeeies 3 20 U.S.C. § 1415() uw...esueseveveseneeeususussutucssscseasessensaeeucucsenenecessaeaesessasisansesisaeseseeseseaeseseeteeesaees 3 Cal. Code of Regulations Title 5 § 3085 oo... ccccccessseseseseesesecsesssessecsesseesseseesssesseecseseseseeas 24 Cal. Educ. Code § 2 o..ceccccccccccccccscsscssssssesccssecssssececsnscucesscsesesscseeessesssssesssessessvenessssseesesenesenatens 16 Cal. Educ. Code § 1900.0...seaseesaceccsatecsseceasesssesenseccssesaecceeseceaeessesucsceseuseseceuaeeses 28 (Cont’d) Page(s) STATUTES Cal. Educ. Code § 48200 .0...ccccccccccssescssscscsseccsecssseesesscssseaasessucenseuessseasseeaees 13, 22, 23, 28 Cal. Educ. Code § 48204(a)... cceesceeseresseeeneseseeeseceesseceetenensarateeseasesneetseeseaesetsssssssseesscstacase LO Cal. Educ. Code § 48645.2....ccccssssssssssssssnsssssesiesssesssunsssssssssnnnnsnsseesesiumssssesisteuassseeeeenuaseetes 9 Cal. Educ. Code § 56000(a) 0.0... ccecccessssesssscssecessssteesscssscsseccessssssesecursssssesecesecsaseseaseneoess 12 Cal. Educ. Code § 56026.........cccccccccccssscscsssvssccssessecstcsecseeccsscsessescesessecsssecsssstesseccaseasesseeesesesaes 12 | Cal. Educ. Code § 56028 .....ccccccccccccccssssccscccsscsecseccssssccssecesassssenssssseeseceeassssssuasesasssseeneenes 26, 27 Cal. Educ. Code §56028(8)(2) ...ccccccscsccsccssccsscsscssccescescesescesssseeseccssesesessenesesscessscssssasesssesseaseess 26 Cal. Educ. Code § 56041 o..cccicccccscecsssesseesseensenscseceesecessessesessesseseaseseeeeseeessseesaeeaeeaespassim Cal. Educ. Code § 56043(m).... i cccecccccsscccsscsesesessscssscscsecsvssacevscvavevesaeeaveceescstsavavavscaceesanenevees 30 Cal. Educ. Code § 56300... cceescsssessesesssscssssescsssnesescseacsrssssseseerenesensusenssaseraveneeraceeeneeyv3] Cal. Educ. Code § SO325(A) seseeeeseressssssssnssnesssnnssseeeeeeeeestseasasnanansssnnnnseseet daseaesaeevaceseseseeenecseereees 31 Cal. Educ. Code § 56344(D)(C) ...ccccccccccsscsscsscsscssessesscsessecsscscsecseecseeseesesessesenscesesesscesecasesvenees 30 Cal. Educ. Code § 56369 0... cccccccccesseccsssssesssesseessscsscssesseccsessssesssssessussssssusssseceasaeseesecaeeaesae 30 Cal. Educ. Code § 56501 occccceccccsesscccssccssecsscessssescssscscssssssecsssuecseesccssvessesusacsseesseeesetsuasenes 3 OTHER AUTHORITIES 34 CER. § 300.2 oo ccsecsscecesccestecseeeesecesessesenseseseacseeeevseenessscseneessseseaesseseaeeesesaeseeesenesneaes 13, 31 34 CLBLR. § 300.20 oo cccecccnssssecseseesesssetssenssscneseenecsessetenaeseesesesasacseeeesaeeeeeessnssaeeasseseseseseseseaes 26 34 CPLR. § 300.101ccceesseeesseseseceeseseenseseesesevsaeassessesneasaeceeseseeaeaeecssteeasseseseseseesseseeeass 12 34 CLLR. § 300.102occeeeceseeeesereneneeesseeneeeseseseasseneseeassesesaseneuasaeeeseenteeseeass 12, 17, 27, 31 34 CFR. § 300.102(a)(2)Gi) oeeee eeesseeeesseeseseeseseseseneneatesseseeseseesseaeaesiessaesseanensssessseseeaes 13 34 C.FLR. § 300.103eeeceseeessesecesesscseeseseseesecesenesseeeenessesesesesesieeeseeeseessssnsteneesaseneeaseseseeeeees 30 TABLE OF AUTHORITIES -Vi- TABLE OF AUTHORITIES (Cont'd) Page(s) OTHER AUTHORITIES 34 CLLR. § 300.149 ooeeccceeeesesessessescsesecessensnevesasscseseceessessecsesesacseacasseserevseeenseesasaeeeeesieaeens 12 34 C.PFLR. § 300.323 woe cecccccccscsssesceeeseseeesesceensenescecnsvavecsensesevsessequsseseseacaeecseneeessersasaceasacaesaeaeaeaes 30 Analysis of Comments and Changes to 2006 IDEA Part B Regulation, 71 Fed. . Reg. 46540, 46686 (Aug. 14, 2006)...ee eecscesessseseseseetscseneneeeeetseseesaesesseeeseeeeateseeeateeaees 17 Cal. R. Ct. 8.548 onccccecsseceeesessseeersaeseeneesaecenenecarsensesecacsavaeseesisaaseneeesasseceasaeeeseneseeeseneneeseees 5 Cal. R. Ct. 8.548(a) ccccceceseneseseeeseceeeesenevseeeesaesrsseceasstesscacaceesessessasaceceeseecesicaeaeeeessaeeeneeeneneeasees 5 Cal. R. Ct. 8.548(D)(2) oc eeccecsesesessesesesesescsssesessesnsnsesscsneceseseaeaeseasessececeensesseseeasetseeaeaeaesateneseeess 5 -Vil- ISSUE TO BE BRIEFED PURSUANTTO RULE8.520(b)(2) The United States Court of Appeals for the Ninth Circuit requested that the California Supreme Court answerthe following question: Does California Education Code § 56041 — which provides generally that for qualifying children ages eighteen to twenty-two, the school district where the child’s parent resides is responsible for providing special education services — apply to children who are incarcerated in county jails? L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956, 958 (9th Cir. 2011). INTRODUCTION This case involves the straight-forward application of the plain language ofa statute regarding the provision of special education and related services to a young adult student. Although Los Angeles Unified School District (“LAUSD”) asserts that California law is unclear because somehow the California legislature failed to implementa specific statute governing 18 to 22 year old students detainedin jail facilities, LAUSD turns statutory construction on its head in an attempt to argue that Section 56041 does not apply her. It is unquestionable that the Individuals with Disabilities Education Act (“IDEA”) provides that all young adult special education students between the ages of eighteen and twenty-two, including those students detained in countyjails, are entitled to receive special education and related services. It is unquestionable that the IDEA defers to states to allocate and divide responsibility for the provision of services to -|- eligible students. It is likewise unquestionable that in implementingthe- IDEAthrough the California Education Code, the California legislature intended to provide for servicesto all eligible students as mandated by IDEA. The only question, then, is which section of the California Education Code governs the provision of services to students in jail. Throughsection 56041 of the California Education Code,' California has placed responsibility for the provision of special education andrelated services to certain young adult students on the district where the student’s parent(s) reside(s). Section 56041 does not exclude detained students from this coverage. Despite the plain language of the statute, LAUSD arguesthat section 56041 does not apply and suggests that eligible detained students should not receive the special education and related services to which they are statutorily entitled until the Legislature more explicitly identifies a responsible agency. This cannot be the state of California law. But LAUSDpresents no reasonable and compelling argument as to whysection 56041 is unclear on its face. LAUSD instead points to statutes in Arizona and statements by the California Department of Education in an attemptto argue the inapplicability of section 56041, but such arguments have absolutely no bearing on the question at hand. Because section 56041 is ' Unless otherwise indicated, all references to code sectionsare to the California Education Code. unambiguousonits face, this Court should find that it does apply to eligible students detained in county jails. STATEMENT OF THE CASE On June 5, 2009, Mr. Garcia filed a request for due process hearing against LAUSDbefore the Office of Administrative Hearings (“OAH”), Special Education Division seeking an order requiring LAUSDto provide him with special education and related services during his detention in the Los Angeles County Jail (“LACJ’).’ 9th Cir. R. of Appeal (“ER”) at 0166, 0353. After a three-day hearing, which included opening statements, testimony and closing briefs, the OAHissuedits decision on November16, 2009. ER at 0166, 0183. Pursuant to section 56041, the OAH found LAUSDresponsible for the provision of special education andrelated services to Mr. Garcia while he wasin the LACJ, and ordered LAUSDto provide such services to Mr. Garcia no later than January 2010. ER at 0181-82 (Order Nos.2, 3). Following the OAH’s November 16, 2009 decision and order, LAUSDfiled an action in the United States District Court appealing the * The IDEA and California Education Code provide that a party has the right to an impartial due process hearing “with respect to any matter relating to the identification, evaluation, or educational placementof the child [or student], or the provision of a free appropriate public education to such child [or student].” 20 U.S.C. § 1415(b)(6); Cal. Educ. Code § 56501. A party typically completes the administrative hearing process before maintaining an action regarding the provision of special education and related services in state or federal court, absent certain exceptions. 20 U.S.C. § 1415(). OAH Order. ER at 0001. That action was assigned to the Honorable Valerie Baker Fairbank as a related case to Mr. Garcia’s class action seeking a system for special education in the LACJforall eligible students, Garcia v. LASD, which was then pending before Judge Baker Fairbank and is currently pending before the Honorable Margaret M. Morrow. Garcia v. LASD., No. 09-8943 VBF-CD) (C.D. Cal. Nov. 16, 2009), ECF No. 10; ER at 0439. On May4, 2010, having considered the testimony and evidence before the OAH,the OAH’s decision, and the parties’ full briefing on the matter, the District Court affirmed the OAH Order, holding that section 56041 of the California Education Code required LAUSDto provide Mr. Garcia with special education and related services while he wasin the LACJ. ER at 0001-02. The District Court specifically held that: “[u]nder the plain language of Cal. Educ. Code§ 56041, LAUSDis responsible for - the provision of special education services to Garcia. No party contests that Garcia is between the ages of eighteen and twenty-two years and that Garcia’s motherhasat all relevant times resided within the Los Angeles Unified School District.” ER at 0003. The District Court also affirmed the OAH’s holding that “Garcia’s right to special education services did not end upon his eighteenth birthday,” and upheld the remedy ordered by the OAH. ERat 0001-02. LAUSDappealed the District Court’s decision to the Ninth Circuit Court of Appeals. The Ninth Circuit certified the parties’ dispute to the California Supreme Court, stating the question as follows: Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answerthe following question: Does California Education Code § 56041—which provides generally that for qualifying children ages eighteen to twenty- two, the schooldistrict where the child’s parentresides is responsible for providing special education services—apply to children whoare incarcerated in countyjails? The California Supreme Court’s decision on this question of California law would determine the outcomeofthis appeal and no controlling precedentexists. See Cal. R. Ct. 8.548(a). Weagree to accept and follow the Court’s decision. See Cal. R. Ct. 8.548(b)(2). Wecertify this question because deciding it would require us to answer a novel question of California law that could impose substantial financial obligations on schooldistricts throughout the state. Moreover, because suits concerning special services required by the IDEA are subject to federal jurisdiction, the California courts are unlikely to have the opportunity to address this question of substantial importanceto local school districts unless the California Supreme Court grants a request for certification. L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956, 958 (9th Cir. 2011). SUMMARY OF ARGUMENT Section 56041 appliesto all eligible eighteen to twenty-two year old students in the state of California including those detained in countyjails. 1. The IDEAdefers to states to determine which schooldistricts and/or other entities may be responsible for providing students’ special education and related services. Multiple public agencies may be _5- responsible for a student’s special education and related services pursuant to the IDEA. 2. Section 56041 provides that for students eligible to receive special education and related services between the ages of eighteen and twenty-two, the school district where the student’s parent(s) reside(s) is responsible for the provision of the.student’s special education andrelated services. Accordingly, the Court need only examine the plain language of the statute to conclude that section 56041 applies to children incarcerated in countyjails. 3. Such plain reading of section 56041 will not lead to absurd results, nor is it impracticable to implement. Rather, a plain reading of section 56041 is consistent with the California Education Code, legislative intent, and past administrative practice and decisions. 4. The Court need not wait for the Legislature to resolve this issue but mayinterpret section 56041 accordingto its plain meaning. STATEMENT OF FACTS As a student with a diagnosed learning disability, Michael Garcia has been eligible for special education for mostof his life. ER at 0167-68 (OAH Factual Findings 1, 3); 9th Cir. Supp. R. of Appeal (“SER”) at 000015-17 (Testimony of Yamileth Fuentes, Aug. 13, 2009 OAH Hearing (“Fuentes Testimony”) at 153:22-155:7). Mr. Garcia first began receiving special education and related services in approximately the second grade. _6- ER at 0167 (Factual Finding 3); SER 000015-16 (Fuentes Testimony at 153:25-154:7). Mr. Garcia received special education andrelated services until his transfer to the LACJ on June 19, 2008, shortly after his eighteenth birthday. ER at 0168-69 (Factual Findings5, 10). Mr. Garcia grew up living with his mother andsiblings in Bell, California, within the boundaries of the LAUSD. ER at 0167 (Factual Finding 2); SER at 000010-11 (Fuentes Testimony at 148:22-149:24). Mr. Garcia’s mother, Yamileth Fuentes, has resided in the LAUSDsince 1985; five years prior to Mr. Garcia’s birth, and continues to reside there. ER at 0167 (Factual Finding 2); SER at 000011-13 (Fuentes Testimony at 149:8- 151:2). Mr. Garcia hasa long history of eligibility for special education as a student with a specific learning disability caused by his impaired auditory processing abilities and significant deficits in his expressive and receptive language skills. ER at 0167 (Factual Findings 1, 3); SER at 000016-17 (Fuentes Testimony at 154:14-155:7). A teacher first identified Mr. Garcia’s learning difficulties in elementary school and suggested that he be tested for special education. SERat 000015-16 (Fuentes Testimonyat 153:22-154:7). Mr. Garcia began receiving special education in 1998, > Appellee uses the terms special education, special education andrelated services, and special education services interchangeably. All terms refer to special education andrelated services as defined by the IDEA. 20 U.S.C. § 1401(26), (29). when he wasin the second grade. ER at 0167 (Factual Finding 3); SER 000015-16 (Fuentes Testimony at 153:25-154:7). Following his initial assessment, LAUSD provided Mr. Garcia with uninterrupted special education services during his time in the District. ER at 0036-37 (Testimony of Michael Garcia, Aug. 13, 2009 OAH Hearing (“Garcia Testimony”) at 40:5-42:21), 0167-0168. LAUSD developed annual and triennial Individualized Education Programs (“TEPs”)* for Mr. Garcia when he attended schoolin the District. ER at 0167-68 (Factual Finding 3). After completing eighth grade in LAUSD,Mr. Garcia enrolled in the Soledad Enrichment Action Charter School.° ER at 0168 (Factual Findings 3, 4). While at this school, Mr. Garcia continuedto receive special education to help him meet his educational goals. ER at 0168 (Factual Finding 4). * An Individualized Education Program or “IEP”is “a written statement for each child with a disability...that includes...a statement of the child’s present levels of academic achievementand functional performance[;]...a statement of measurable annual goals, including academic and functional goals[;]” a statement of how the child will meet these annual goals; a statementdetailing the accommodations and modifications.the child will receive; a statementsetting forth the transition services, as defined in 20 U.S.C. § 1401(34), the child will receive; and a statement detailing the special education and related services the child will receive. 20 U.S.C. § 1414(d)(1)(A); 20 U.S.C. § 1401(14). ° This schoolis a Los Angeles County Office of Education administered charter schoolandis referred to as SEA Southgate. ER at 0168 (Factual Finding 4). On February 8, 2006, at the age of fifteen, Mr. Garcia wasarrested. ER at 0168 (Factual Finding 5). As a juvenile, he was detained at the Sylmar Juvenile Hall in Sylmar, California. ER at 0168 (Factual Finding 5). At the school operated on the grounds of Sylmar Juvenile Hall, Mr. Garcia once again received special education and related services.° ER at 0035-36 (Garcia Testimony at 41:4-6, 42:22-45:7). On August 24, 2007, Mr. Garcia’s JEP team conducted his annual IEP meeting at Sylmar Juvenile Hall School. ER at 0168 (Factual Finding 6), ER at 0214-29. Both Mr. Garcia and his mother attended this IEP meeting. ER at 0229. At that meeting, the IEP team determined that Mr. Garcia wasstill entitled to special education andrelated services, finding him “eligible for special education and related services underthe eligibility categories of specific learning disability and speech and language impairment.” ER at 0168 (Factual Finding 6). However, on June 19, 2008, shortly after his eighteenth birthday, Mr. Garcia was transferred from the Sylmar Juvenile Hall to the LACJ, an adult ° The Sylmar Juvenile Hall schoolis called the Barry J. Nidorf School. ER at 0035 (Garcia Testimony at 40:16-21). Students whoare in what are referred to as juvenile court schools,i.e., those schools operated by juvenile halls and camps, are served byCounty Offices of Education. Cal. Educ. Code § 48645.2. In this case, Mr. Garcia was provided special education services by the Los Angeles County Office of Education during his time in the Juvenile Hall. ER at 0168 (Factual Finding 6); ER 0214-29 (Mr. Garcia’s IEP developed by the Los Angeles County Office of Education while he was attending school at Sylmar Juvenile Hall). -9_ correctionalfacility. ER at 0169 (Factual Finding 10). Uponhis detention — at the LACJ, when LAUSD’s obligation to provide services resumed, Mr. Garcia received no special education or related services. ER at 0169 (Factual Finding 10); see also ER at 0043 (Garcia Testimony at 76:1-18). Mr. Garcia requested educational services by submitting an LACJ inmate complaint form. ER at 0043 (Garcia Testimonyat 76:1-18); SER at 000005 (Garcia Testimony at 79:8-15). Further, counsel for Mr. Garcia requested special education andrelated services from LAUSDonhis behalf on February 12, 2009. ER at 0170 (Factual Finding 15). Nevertheless, Mr. Garcia did not receive the special education and related services to which he was (and is) undoubtedly entitled. ER at 0169 (Factual Finding 10), 0170 (Factual Finding 16), 0172-73 (Legal Conclusion 6). Indeed, the OAHfound that Mr. Garcia received no special education services between the time he turned eighteen and the time of its November 16, 2009 decision. ER at 0167 (Factual Finding 1), 0169 (Factual Finding 10), 0177 (Legal Conclusion 26). Dueto this lack of services, Mr. Garcia regressed academically and his academic skill levels declined. ER at 0169 (Factual Finding 13), 0257- 58. During Mr. Garcia’s due process hearing before the OAH,Dr. Carlos A. Flores, a clinical neuropsychologist, testified that Mr. Garcia has a learning disability and that in order to benefit from and access his education -10- he requires special education, speech and language therapy, and counseling. ER at 0171 (Factual Findings 23-26). | On November 16, 2009, the OAH found Mr. Garcia waseligible for special education services while detained at the LACJ. ER at 0172-73 (Legal Conclusion 6). The OAH also found that LAUSD had denied Mr. Garcia a free appropriate public education (““FAPE”), in violation of California and federal law, by failing to provide him with any special education or related services upon his transfer to the LACJ. ER at 0177-79 (Legal Conclusions 26-28, 35-36). Finally, the OAH held that LAUSD had a legal obligation to provide Mr. Garcia with a FAPE during his incarceration in the LACJ andorderedit to provide special education and related services to Mr. Garcia without delay. ER at 0181 (Order No.2). Only in January 2010, pursuant to the OAH Order, did Mr. Garcia begin receiving some special education services from LAUSDduringhis detention at the LACJ. ER at 0181-82 (Order Nos. 2, 3). -11- ARGUMENT I. Section 56041 of the California Education CodeDictates the Provision of Special Education and Related Services to Individuals Detained in County Jails A. Underthe Plain Languageof Section 56041, the District Where a Detained Student’s Parent Resides Is Responsible for Providing Special Education and Related Services During the Student’s Detention in a CountyJail The IDEA conditions the provision of federal funds on a state’s agreementto comply with numerousspecific procedures and requirements. 20 U.S.C. § 1412. Foremost among these is the requirementthat a state develop policies and procedures to ensure that eligible students between the ages of three and twenty-one receive a FAPE. 7 20US.C. § 1412(A)(1); 34 C.F.R. § 300.149. A FAPEis “special education andrelated services that: (A) have been providedat public expense, under public supervision and direction, and without charge; (B) meet the standards of the State ~ educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program.” 20 U.S.C. § 1401(9). The IDEA expressly provides that students in adult correctional facilities, such as jails, have a right to receive a FAPE if the students were found eligible for special education and related services prior 7 A studentis entitled to continue receiving special education services until he or she receives a diplomaor reacheshis or her twenty-second birthday. 20 U.S.C. § 1412(a)(1); 34 C.F.R. §§ 300.101, 300.102; Cal. Educ. Code §§ 56000(a), 56026. -12- to their incarceration. 20 U.S.C. § 1412 (a)(1)(B)(ii); 34 C.F.R.§ 300.102(a)(2)(ii); see also 34 C.F.R. § 300.2 (the IDEA applies to adult correctional facilities). The IDEAdefers to states to establish a statutory schemeallocating and dividing responsibility for the provision of special education and related services. 20 U.S.C. § 1412(a). Questions as to the education agencies responsiblefor the provision of services to any particular student are determined understate law. J.S. v. Shoreline Sch. Dist., 220 F. Supp. 2d 1175, 1191 (W.D. Wash. 2002) (citing Union Sch. Dist. v. Smith, 15 F3d 1519, 1525-27 (9th Cir. 1994)). California statutes address this issue by dividing students into two separate groups: those between the ages of six and eighteen, and those overthe age of eighteen. For students between the ages of six and eighteen, sections 48200 and 48204 of the California Education Code allocate and divide responsibility for the provision of education services (including special educationand related services). Pursuanttothese provisions, as well as certain provisions of the IDEA,schooldistricts are generally responsible for providing a FAPEto those students with disabilities whose parent or parents reside within the district’s jurisdictional boundaries. 20 U.S.C. § 1414(d)(2)(A); Cal. Educ. Code §§ 48200, 48204; see also Katz v. Los Gatos-Saratoga Joint Union High Sch. Dist., 117 Cal. App. 4th 47, 57-58 (2004). -13- Section 56041 of the California Education Code providesa parallel schemefor students between the ages of eighteen and twenty-two. Specifically, section 56041 provides: Except for those pupils meeting residency requirements for school attendance specified in subdivision (a) of Section 48204, and notwithstanding any other provision of law,if it is determined bythe individualized education program team that special education services are required beyond the pupil’s 18th birthday, the district of residence responsible for providing special education and related services to pupils between the ages of 18 to 22 years, inclusive, shall be . assigned, as follows: (a) Fornonconserved pupils, the last district of residence in effect prior to the pupil’s attaining the age ofmajority shall become and remain as the responsible local educational agency, as long as and until the parent or parents relocate to a new district of residence. At that time, the new district of residence shall become the responsible local educational agency. (b) For conserved pupils, the district of residence of the conservator shall attach and remain the responsible local educational agency, as long as and until the conservator relocates or a new one is appointed. At that time, the new district of,residence shall attach and becomethe responsible local educational agency. (emphasis added) In sum, and as a generalrule, the district in which the parent(s) of an 18 to 22 year old student reside(s) is the district responsible for providing special education and related services to that student. Cal. Educ. Code § 56041. In the present case, the OAH andthe District Court properly applied the plain language of section 56041 to the facts of the instant matter and held that LAUSD-—asthedistrict of residence of Mr. Garcia’s mother—was responsible for providing special education and related services to Mr. -14- Garcia during his incarceration in the Los Angeles County Jails. Despite LAUSD’s tortured arguments to the contrary, such an interpretation is eminently reasonable. B. Because Section 56041 Is Clear on Its Face, the Court Need Not Look Beyond the Plain Language to Determine Its Applicability Here eeeThe Supreme Court has “‘stated time and again that courts must presumethat a legislature says in a statute what it means and means in a statute what it says there.’ Whenthe statutory ‘languageis plain, the sole function of the courts—at least where the disposition required by the text is 399not absurd—is to enforce it according to its terms.’” Arlington Cent. Sch. Dist. v. Murphy, 548 U.S.291, 296 (2006) (citation omitted); BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) Moyer v. Workmen’s Comp. Appeals Bd., 10 Cal. 3d 222, 229-230 (Cal. 1973). The District Court agreedin the instant action, stating “the statute [section 56041] is clear enough on its face that the Court [need] not reach the legislative history.” ER at 0003. LAUSDnotably does not contendthat the language of section 56041 is somehow ambiguoussuch that the Court should consider the legislative history. Rather, all of LAUSD’s arguments center on the false assertion that because section 56041 does not expressly reference county jails, it is somehow “highly unlikely” that the legislature intended for section 56041 to apply to eligible students in county jails. But such an argument ignores -15- the fact that section 56041 allocates and divides default responsibility for the provision of special education and related services to students between the ages of eighteen and twenty-two whoareeligible for such services, with explicit, limited exceptions that LAUSD doesnot even contend applyhere. Although section 56041 does not expressly reference county jails, it need not specifically enumerate the extent of its application. Rather,it specifically references section 48204(a) of the California Education Code for its exceptions, and students detained in countyjails are not listed in those exceptions. Thus, this Court can rely solely on the plain language of the section 56041 to find that section 56041 applies to eligible students detained in countyjails. Indeed, as the District Court correctly held, “[t]he plain language of Cal. Educ. § 56041 encapsulates incarcerated students.” ER at 0012-13. | Furthermore, the LAUSD’s narrow construction of section 56041 is improper. Indeed, pursuantto section 2, all of the California Education Code’s “provisions and all proceedings under[the Code] are to be liberally construed, with a view to effect its objects and to promotejustice.” Cal. Educ. Code § 2. LAUSD’s narrowreading of section 56041 is therefore in direct contravention of section 2. The California legislature has specifically expressed that the California Education Code,including section 56041, should be given a broad effect, and LAUSD’s narrow reading ofthe statute should be rejected. -16- C. The Legislature’s Choice to Enact Specific Statutes Allocating Responsibility in Other Situations Is of No Consequenceto the Issues Before this Court The California Legislature’s decision not to include a specific statute related to the provision of special education andrelated services in county jails does not support a finding that section 56041 does not apply to eligible detained students. First, the IDEA does not require states to enact statutes that expressly reference and dictate how special education and related services will be providedto eligible students in county jails. Rather, as LAUSD admits, the IDEA only requires states to enact policies and procedures to ensure that students in jails are provided with a FAPE;the policies and procedures a state may ultimately enact are discretionary so long as students are provided with a FAPE. 34 C.F.R. § 300.102; 20 U.S.C. § 1412; see also Analysis of Comments and Changes to 2006 IDEA Part B Regulation, 71 Fed. Reg. 46540, 46686 (Aug. 14, 2006) (“Whether the special education andrelated services are provided directly by the State or through an LEAis a decision thatis best left to States and LEAs to determine.’’); Pet. Br. at 29-30. Thus, the fact that other states, such as Arizona, havestatutes that expressly reference jails means nothing more than that the Arizona Legislature madea different allocation of IDEA responsibilities than the California Legislature. Further, the California Legislature’s decision to framethe clear language of section 56041 in general terms does not suggest a conscious -17- choice to exclude jails from the scope of the statute. Rather, it indicates only that the Legislature was acting “‘to address a specific problem but ultimately settl[ed] on a broader remedy. ... [T]hat a statute can be applied in situations not expressly anticipated by [the Legislature] does not demonstrate ambiguity. It demonstrates breadth.” In re Estate of Earley, 173 Cal. App. 4th 369, 376 (2009) (quoting N.H.Motor Transp. Ass’nv. Rowe, 448 F.3d 66 (1st Cir. 2006)) (quotation omitted); Khajavi v. Feather River Anesthesia Med. Grp., 84 Cal. App. 4th 32, 51 (2000) (“[T]he specific impetus for a bill does not limit its scope when its text speaksto its subjects more broadly . . . . Indeed, when the Legislature has made a deliberate choice by selecting broad and unambiguousstatutory language, ‘jt is unimportant that the particular application may not have been 999 contemplated.’” (citation omitted)). The Supreme Court of the United States has echoed this sentiment. See Barr v. United States, 324 U.S. 83, 91 (1945) (“If Congress has made a choice of language whichfairly brings a given situation within statute, it is unimportantthat the particular application may not have been | contemplated by the legislators.”). An interpretation of the Education Code that eliminates the LAUSD’s responsibility for funding renders the underlying principles of section 56041 superfluous and ineffective. In the wordsof the Tenth Circuit: “We will not hobble our interpretation of statutes with the requirement that every circumstance meantto be covered -18- mustbe specifically mentioned.” United States v. Bates, 617 F.2d 585, 587 n.7 (10th Cir. 1980). Moreover, as LAUSDsuggests, and as this Court has confirmed, statutory provisions related to the same subject matter should be “harmonized, both internally and with each other, to the extent possible.” Pet. Br. at 47; Dyna-Med, Inc. v. Fair Emp’t & Hous. Comm’n., 43 Cal. 3d 1379, 1387 (1987). However, only wherethere is an irreconcilable conflict between such provisions does the more specific provision dictate the scope of the more general provision. Elsenheimer v. Elsenheimer, 124 Cal. App. 4th 1532, 1540 (2004); Am. Nat. Ins. Co. v. Low, 84 Cal. App. 4th 914, 925 (2000). There is no such conflict here. In fact, the OAH’s reading of section 56041 fully comports with the more specific statutes dealing with education services in jails cited by LAUSD. The fact that the California legislature has designated County Offices of Education as responsible for providing general education services to incarcerated individuals is not inconsistent with the OAH’s interpretation of section 56041. Just as sections 1900 through 1909.5, 41840 through 41841.8, and 46191 establish education and other services to incarcerated students, section 56041 identifies the entity responsible for providing such special education services. Becausethis interpretation of section 56041 is fully compatible with the more specific provisions of the Education Code, and because -19- Garcia’s situation falls squarely within the Legislature’s intended scope of the statute, LAUSD’s specificity argumentfails. Finally, LAUSD’s reliance on the California Department of Education’s counsel’s self-serving statements aboutliability for the provision of special education and related services in the LACJ is misplaced. See Pet. Br. at 2-3. One attorney’s belief that the legislature omitted students in jail from the coverage ofits statutes is neither persuasive norindicative of legislative intent. Further, those statements were made in a case in whichthe California Department of Education is a defendant and hasa stake in the outcome. Whether section 56041 applied to make LAUSD a responsible entity for Mr. Garcia’s special education and related services during his detention in the LACis a legal question for the Court to decide, regardless of the California Department of Education’s position taken in litigation. D. LAUSD’s Narrow Application of Section 56041 Does Not Comport with the Statutory Schemeor Prior Administrative Decisions To the extent the Court considers the legislative history of section 56041, application of section 56041 in the instant case would actually further the legislative goal underlying the statute. As the District Court correctly held: [E]ven if the Court does review the legislative history of Cal. Educ. [§] 56041, it does not alter the analysis. The concern expressed in the portion ofthe legislative history of Cal. Educ. -20- § 56041 relied on by LAUSD,broadly speaking, is a concern regarding overwhelming local educational agencies (“LEA”) with responsibility because of the fortuity of having a certain type of school within their borders. See Declaration of Lisa Hampton,p. 432. The application of Cal. Educ. § 56041 according to its plain terms may serve this purpose in the instant case becauseit provides that the LEA in whicha jail resides is not automatically responsible for the special education of all students located therein. ER at 0004. LAUSDseeksto have the Court hold that section 56041 only applies when a schooldistrict places a student underthe age of eighteen in another schooldistrict to receive services and the student turns eighteen while living or attending school in the new schooldistrict. Pet. Br. at 35. Sucha narrow application, however, is not supported by the plain language of the statute or administrative decisions interpreting and applying thestatute. First, the plain language of the statute does not providethat it only governs situations in which a student has been placed by onedistrict in a program in anotherdistrict prior to reaching age eighteen. Rather, as the OAHandthe District Court correctly concluded, the statute applies to the division and allocation of responsibility among school districts and agencies for the provision of special education and related servicesto all students between the ages of eighteen and twenty-two. While LAUSD may wish to escapeliability by asserting that the statute governs only certain situations, “a court is not authorizedto insert qualifying provisions not included and may not rewrite the statute to conform to an assumedintention which does not appear from its language.” In re Hoddinott, 12 Cal. 4th 992, -2?1- 1002 (Cal. 1996) (internal citations omitted); People v. One 1940 Ford V-8 Couple, 36 Cal. 2d 471, 475 (Cal. 1950). Second, LAUSD’s claim that administrative decisions support its narrow interpretation of section 56041 is false. LAUSDrelies on a single administrative decision issued by the Special Education Hearing Office (“SEHO”)® in 2003—Studentv. Berkeley Unified Sch. Dist., SEHO Case No. 2003-1989 (“Berkeley”)—to support its narrow interpretation. Pet. Br. at 36-41. Not only is Berkeley readily distinguishable from the instant matter, as both the OAH andthe District Court correctly concluded, but LAUSDalso fails to inform the Court of the four administrative decisions issued after Berkeley (in addition to the OAH Orderin Mr. Garcia’s case), all of which have reached contrary conclusions. In each of those decisions, the OAH applied section 56041 to students between the ages of eighteen and twenty-two, even though those students had not been placed by one schooldistrict into another schooldistrict prior to reaching age eighteen. See In re Student v. Orange County Dept. ofEduc.,) (decision issued November30, 2009) (holding in part that before Student turned eighteen years of age, the basic residencyrule in section 48200 was applicable in determining the district responsible for Student’s FAPE,and that following his eighteenth birthday, the residency rule in section 56041(a) became ®* The SEHO was the OAH’s predecessor and conducted due process hearings brought under the IDEA and/or California Education Code. -22- applicable for making this determination); Parent ex rel. Student v. Cal. Dep’t. ofMental Health (OAH Case No. 2009050920) (decision issued October 26, 2009) (holding, in part, that section 56041 places responsibility for students between 18-22 on the district of residence consistent with sections 48200 and 48204, distinguishing only between conserved and non- conserved adult students); Orange Cnty. Dep’t. ofEduc. v. Student (OAH Case No. 2008120021) and Student v. Orange County Dep’t. ofEduc. (OAH Case No. 2009020130) (May 22, 2009) (consolidated ruling finds, in part, that section 56041 provides a broad, catch-all provision for determining whichdistrict is responsible for providing services to students between ages eighteen and twenty-two); Student v. L.A. Unified Scho. Dist., OAH Case No. 2007010772 (April 17, 2007) (holding in partthat, pursuantto section 56041, LAUSD wasthe district responsible for providing services to an adult student with an JEP who movedwith his parents from Alhambra to LAUSDat age twenty-one).” These administrative decisions support the finding that section 56041 applies to eligible students detained in county jails. Accordingly, section 56041 mustbe read to allocate the responsibility for the provision of special education andrelated services to all eligible students between the ages of eighteen and twenty-two. ” Copies of these decisions are included in Appellee’s Addendum to Answering Br. (“Appellee’s Addendum’’) at 1-64. 23. E. Berkeley \s napplicable to the Present Case 1. Berkeley \s Factually Inapposite Contrary to LAUSD’s assertions, Berkeleyis distinguishable from the instant matter. In Berkeley, a 20 year old adult student with autism voluntarily moved of his own accord from his parents’ home in Albany, California, to Berkeley, California, and then tried to enroll in the Berkeley Unified School District. At hearing, the Berkeley Unified SchoolDistrict raised section 56041 as a defense and argued that the Albany Unified School District remained responsible for his education because his parents continued to live in Albany. In that narrow situation, the SEHO held that the student, by leaving his family home voluntarily, had become his own “parent” for purposes of determining his district of residency. See ER at 0427-31. Evenif this case were binding precedent, whichitis not,’” the OAH and the District Court correctly held that this case is inapplicable and unpersuasive because of stark factual differences. Here, “[uJnlike the pupil in the Berkeley case, [Mr. Garcia] has not chosen to moveinto the Los Angeles County Jail. His residence of choiceatall times in this matter has been his mother’s residence in Bell, California, within the jurisdiction of '® Section 3085of Title 5 of the California Code of Regulations provides that “orders and decisions rendered in special education due process hearing proceedings maybecited as persuasive but not binding authority by parties and hearing officers in subsequent proceedings.” 24- the District... . [Mr. Garcia] lived in Bell, California, at all times before his incarceration and would move backthere if released from jail.’ ER at 0175. Indeed, the rationale under Berkeley should apply hereto establish that LAUSDshould be held responsible for Mr. Garcia’s special education and related services. In Berkeley, the SEHOheld that “Section 56041 is a provision to maintain funding responsibilities for the adult student’s education with the California school district within which the parents reside.” ER at 0429. Though notobligated to do so, the District Court acknowledged the holding of Berkeley and the legislative history of section 56041 in its order and correctly held that the “application of Cal. Educ. § 56041 according to its plain terms may serve[the legislative] purpose in the instant case becauseit provides that the [local education agency] in which a jail resides is not automatically responsible for the special educationofall students located therein.” ER at 0004. Here, the general rule of section 56041 has been and should be applied to allocate the responsibility for the provision of special education and related services to eligible students detained in county jails to the schooldistrict where the student’s parent(s) reside(s). This allocation of responsibility would not prevent that district from funding and contracting with another education agencyto directly provide these services. -25- 2. Moreover, Because Ferke/ey Relied on Section 56028 of the California Education Code,It Is Distinguishable from the Instant Case The 2003 decision in Berkeley was premised on the application of section 56028 of the California Education Code which defines the term “parent.” In 2003, section 56028 providedthat: (a) “Parent,” includes anyof the following: (1) A person having legal custody of a child. (2) Any adult pupilfor whom no guardian or conservator has been appointed. (3) A person acting in the place of a parent (such as a grandparent or stepparent with whom the child lives). “Parent” also includes a parent surrogate. (b) “Parent” does not include thestate or any political subdivision of government. (4) A foster parentif the natural parents’ authority to make educational decisions on the child’s behalf has been specifically limited by court order in accordance with subsection (b) of Section 300.20 of Title 34 of the Code of Federal Regulations. Cal. Educ. Code § 56028 (emphasis added). In Berkeley, the SEHO expressly held that: “‘[i}n short, STUDENTis an adult pupil for whom no guardian or conservator has been appointed. He therefore meets the definition of ‘parent’ under section 56028(a). Because STUDENTis a ‘parent,’ responsibility for STUDENT’s FAPE moved when he moved.” ER at 0430. This holding directly refers to the language in the 2003 version of section 56028(a)(2) of the California Education Code. -26- Asthe District Court correctly held, the Berkeley decision is of no momentbecausethis language in the 2003 version of section 56028 of the California Education Code, on which SEHOrelied,is not currently in effect nor wasit in effect during Mr. Garcia’s detention in the LACJ. ER at 0003. Specifically, in Berkeley, the SEHOrelied on the 2003 language of section 56028 that a parent may include an “adult pupil for whom no guardian or conservator has been appointed.” Appellee’s Addendum at 235-236 (2003 version of section 56028). That language is not included in the amended versions of sections 56028 in effect either now or during Mr. Garcia’s detention in the LACJ. Appellee’s Addendum at 225-230 (2008-2010 versions of section 56028). Moreover, the District Court correctly noted that the 2003 version of section 56028 was only in effect from January 1, 2003 to September28, 2004. ER at 0003. Because the current version of section 56028 does not contain the language relied on by the SEHOin Berkeley,it is properly distinguished. F. The OAH’s Application of Section 56041 Is Consistent with the Remainderof the California Education Code Other California statutes regarding general education in correctional facilities are irrelevant to how California implements the IDEA and allocates responsibility for the provision of special education and related services. 34 C.F.R. §§ 300.2, 300.102. The statutes that LAUSD -27- references regarding the establishment of general education programs in county jails and California prisons provide no guidance on the provision of special education in thosefacilities. See Pet. Br. at 47-48; Cal. Educ. Code § 1900 (“The county superintendent of schools, with the approval of the county board of education and the board of supervisors, shall have powerto establish and maintain classes or schools for prisoners in any county jail . . for the purpose of providinginstruction in civic, vocational, literacy, health, homemaking, technical, and general education”). Neither section 1900 nor any of the other sections of the California Education Code referenced by LAUSDregarding general education in jails and prisons specifically addresses the responsibility for special education and related services. Accordingly, the Court mustlookto the portionsof the California Education Code that implement the IDEA andspecifically delineate responsibility for special education andrelated services (i.e., Cal. Educ. Code §§ 48200, 48204, 56041) to determine the entities responsible for providing special education to students in jail. See Nken v. Holder, 556 US. 418, 430 (2009) (“[W]here Congress includesparticular language in one section of a statute but omits it in another section of the same Act,it is generally presumed that Congress acts intentionally and purposely in the _ disparate inclusion or exclusion.”) (citations omitted). Moreover, thereis no inherent contradiction in the application of these two sectionsof the code, in that the general education programs offered by a jail and the -28- special education programs offered by local education agencies can, and indeed should, work in concert with each other. As noted above,a local education agency may even contract with other agencies, such as the general education provider in jail, to facilitate the provision of special education services. Asdiscussed in Section I.A. supra, section 56041 allocates responsibility for the provision of special education and related services to all eligible students between the ages of eighteen and twenty-two (including those in county jails) and is the appropriate statute to apply in the instant matter. II. Application of Section 56041 of the California Education Code Would Not Lead to Absurd Results, Nor Would It Be Impractical to Implement In claiming that application of section 56041 would be impractical to ‘implement, LAUSDignoresthe federal and state framework already in place to address any of the perceived difficulties about which LAUSD complains. First, contrary to LAUSD’s claim,application of section 56041 does not require LAUSDor any other school district to provide direct special education instruction to students in remote countyjails. Nothing in the IDEAor California law would prohibit LAUSDor any other schooldistrict of residence from contracting with another district or agencyto directly provide special education and related services and a FAPEtoeligible -29- students in a jail. In fact, the California Education Code expressly encourages and authorizes such contracting. See Cal. Educ. Code § 56369 (“A local education agency may contract with another public agency to provide special educationor related services to an individual with exceptional needs.”). LAUSD’s own example of a student detained in a San Diego jail, whose parents reside in Sacramento, precisely demonstrates the point. See Pet. Br. at 42. Such a student could receive special education and related services from a school district or agency in San Diego that would be reimbursed for the cost of providing such services by the responsible Sacramento schooldistrict." Moreover, the IDEA and California law expressly require that students be provided a FAPE without delay, and courts have confirmed that multiple agencies may be responsible for ensuring that students receive a FAPEwhile in jail. 20 U.S.C. § 1412(12)(A); 34 C-F.R. $§ 300.103, 300.323; Cal. Educ. Code §§ 56043(m), 56344(b)(c); Handberry v. Thompson, 446 F.3d 335, 347-348 (2d Cir. 2006) (multiple agencies responsible for provision of special education to students in jail); Green v. '! Similarly, the LAUSD’s statements about staffing and security concerns for the jail and the Los Angeles Sheriff’s Department are misplaced. Nothing in California law or the IDEA requires that any school district directly provide these services. Indeed, school districts or county offices of education can contract with one another to ensure the provision of services to eligible students. -30- Johnson, 513 F. Supp. 965, 967, 977-78 (D. Mass. 1981) (same). LAUSD’s claim that the provision of services to students in countyjails is unworkableis thus entirely unsupported by the law. Finally, LAUSD’s complaints about the “impracticability” of tracking students are without merit. The IDEA and California law already require all school districts and other public agenciesto track students. Indeed, the IDEA and California law require thatall eligiblestudents be located and identified (even where they change placements or school districts)'* so that the schooldistricts provide these students with the FAPE to which theyare entitled. 20 U.S.C. § 1412(a)(3): Cal. Educ. Code §§ 56300, 56301; 34 C.F.R. §§ 300.2, 300.102 (DEA applies to adult correctionalfacilities and students in jail may beeligible for special education and related services). If. This Court Need Not Wait for the Legislature to Resolve This Issue, But Should Provide Certainty for Eligible Detained Students LAUSDasserts that the “Legislature has plenary authority to resolve the issue by enacting legislation, assigning responsibility for the provision of special education students in countyjails.” Pet. Br. at 48. Whileit is true that the Legislature mayresolve the issue at hand, the authority cited by LAUSDdoes not support LAUSD’s argumentthat the Legislature is the "2 See 20 U.S.C. § 1414(D)(2)(c)(i)(); Cal. Educ. Code § 56325(a). 31- only entity that may do so. Indeed, the Court may resolve the issue in the absence of movementby the Legislature. Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. at 296(stating that the courts shall “‘presumethat a legislature says in a statute what it means and meansin a statute whatit says there.’ When the statutory ‘languageis plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is 399to enforce it according to its terms.’”). Such a resolution by the Court would in no way deprive the Legislature of its plenary authority over education. Further, even thoughit can resolve this issue, there is no certainty that the Legislature will ever do so. In light of this uncertainty, it would be unwise to wait for the Legislature to act—especially given the need for clarity for currently incarcerated students whosuffer irreparable harm for — each day they go without special education services. See Van Scoy exrel. Van Scoy v. San Luis Coastal Unified School Dist., 353 F. Supp. 2d 1083, 1087 (C.D. Cal. 2005). Therefore, the Court should not hesitate to resolve the issue presented. Hf | HI I Hi -32- CONCLUSION For these reasons, this Court should hold that section 56041 properly assigns responsibility for the provision of special education services to 18 to 22 year old students detained in countyjails to the school district where the student’s parentresides. Dated: July 6, 2012 Respectfully submitted, By : MILBANK TWEED HADLEY & MCCLOY, LLP --and-- DISABILITY RIGHTS LEGAL CENTER Attorneysfor Appellee Michael Garcia -33- CERTIFICATE OF WORD COUNT (California Rules of Court, Rule 8.520(c)(1)) I certify that pursuant to California Rule of Court, Rule 8.520(c)(1), the attached answering brief is proportionately spaced, has a typeface of 13 points or more and contains 7,123, as counted by Microsoft Word, the computer program used to prepare thisbrief. Dated: July 6, 2012 Respectfully submitted, By:KRweKoQ) Hannah L. Cannom MILBANK TWEED HADLEY & MCCLOY, LLP Attorneyfor Appellee, Michael Garcia -34- PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employedin the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 601 South Figueroa Street, 30th Floor, Los Angeles, California 90017. On July 6, 2012, I served the foregoing documentdescribed as APPELLEE’S ANSWERINGBRIEFontheinterestedparties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: Barrett K. Green Clerk of the United States Court Daniel L. Gonzalez of Appeals for the Ninth Circuit Littler Mendelson 95 Seventh Street 2049 Century Park East 5th Fl San Francisco, CA 94104 Los Angeles, CA 90067 Attorneys for Petitioner Los Angeles Unified School District Clerk of the United States District Ismael A. Castro Court for the Central District of CAAG—Office of the Attorney California Generalof California 312 N. Spring Street 1300 I Street, Suite 1101 Los Angeles, CA 90012 P.O. Box 944255 Sacramento, CA 94244-2550 Diane H. Pappas Associate General Counsel Donald A. Erwin Mampre R. Pomakian Office of the General Counsel Los Angeles Unified School District 333 S. Beaudry Avenue, 20th Floor Los Angeles, CA 90017 Attorneys for Petitioner Los Angeles Unified School District i H Hf i i -35- BY OVERNIGHT MAIL:I caused each such envelope to be placed in a box or other facility regularly maintained by the overnight express service carrier, or delivered to an authorized courier or driver authorized by the overnight express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid for. I declare that [am employedin the office of a memberofthe bar of this court at whose direction the service was made. -36-