DEL MAR — The family of a special needs child is breathing a sigh of relief after the San Dieguito Union High School District board finally approved a settlement agreement on Monday, ending a lengthy legal battle over the child’s school placement.
Under federal law, school districts must ensure a free and appropriate public education for all students, regardless of special needs, in the least restrictive environment possible. One way to achieve this is by placing a student at a nonpublic school (NPS) that can offer more specialized services.
For two and a half years, San Dieguito refused the Ogawa family’s request to place their teenage daughter at The Winston School in Del Mar, going against the advice of the rest of her Individualized Education Program (IEP) team and forcing the family to pay out-of-pocket for her tuition.
The settlement on Monday comes just weeks after the district sought to escalate litigation in the case, with the attorneys filing a reconsideration motion for an April 23 ruling from the U.S. Southern California District Court. This federal ruling upheld a previous state ruling in the family’s favor from August 2022 and ordered the district to reimburse the family for tuition and attorney’s fees.
Kelly Ogawa, the mother of the 15-year-old student now going into her sophomore year (referred to as K.O. to protect her privacy), said she believes public attention on her family’s situation is what helped the district to change course and settle the case.
“We are relieved and thankful to have reached a settlement, ending this long battle. We were hesitant to go public, but we believe sharing our story brought awareness and the justice our daughter deserves. It is unfortunate it took this long to achieve what is legally required. We can finally focus solely on our daughter and our family, a long-awaited relief,” Ogawa said.
The Coast News contacted all five SDUHSD trustees with questions about the case last week. Community members and other media outlets, such as The Del Mar Times, have also questioned district officials about their escalation of the litigation.
During a closed-session special meeting on Monday morning, the school board voted unanimously, with trustee Phan Anderson absent, to approve a settlement agreement with the family. A notice of settlement was also filed in federal court on June 21.
“The mutual agreement for special education services resolves the dispute with [the] student in exchange for a full release and waiver of claims against the district,” Board President Rimga Viskanta said Monday.
Kelly Ogawa said she could not share the specific terms of the settlement agreement due to a confidentiality clause but that they are pleased with the outcome.
“We hope the district recognizes the impact of its actions and ensures other families do not endure the same struggle,” Ogawa said.
‘They’re just burying us’
In early 2022, the Ogawa family sought a new NPS placement for K.O. because her current school, Excelsior Academy, was set to close. She had had an IEP — which maps out instruction and support plans for students qualifying for special education — since the age of three and had a well-established record of extreme anxiety that necessitated a “small, calm, quiet” learning environment, according to the legal filings.
Issues arose when Nathan Molina, the district representative working on the student’s IEP, proposed placement at the San Diego Center for Children (SDCC), which serves children with mental, emotional and behavioral disorders.
Everyone else on the IEP team, including her parents, expressed that this placement would be inappropriate and even harmful for K.O., as proximity to disruptive behaviors was shown to trigger anxiety and “inhibit her ability to make progress on her academic and social goals,” the federal ruling stated.
Her parents did agree to tour the school in early 2022, but this only confirmed their belief that it was not the right fit.
The Ogawas and the rest of the IEP team advocated for K.O. to be placed at The Winston School, a small special education school in Del Mar. Her family felt the school would “foster her continued growth and independence,” and noted that it was closer to their house and would be a cheaper NPS placement for the district than the San Diego Center for Children.
However, the district refused to offer Winston as an NPS placement for the student and continued to stand by its offer of SDCC.
“Molina effectively shut down the team’s discussion about identifying an appropriate nonpublic school for Student by failing to consider any nonpublic school other than SDCC,” a state Office of Administrative Hearings judge said in her 2022 ruling.
This led the Ogawas to privately place their daughter at Winston in February 2022 and notify the district that they would seek tuition reimbursement.
K.O. has been attending Winston for over two years and is “thriving” by all accounts, her mother said. The district’s refusal to budge made it difficult for her family to believe San Dieguito was acting out of care for the student’s well-being.
“If we would have sent our daughter to San Diego Center for Children, she would have been traumatized,” Kelly Ogawa said. “That’s causing harm to a child — they’re not supposed to be doing that.”
Around this time, the Ogawas filed a due process complaint with the state Office of Administrative Hearings, arguing that SDUHSD denied their daughter a free and appropriate education by “predetermining” an offer of placement at SDCC rather than working collaboratively with the IEP team.
SDUHSD officials denied that the offer was predetermined, stating that placement at SDCC was best to meet the student’s needs and insisting that the district was the sole decision maker about a child’s placement.
However, in August 2022, the OAH judge sided with the family in finding predetermination. The judge also stated in her ruling that she found the testimony of SDUHSD officials — including Molina and Director of School & Student Services Tiffany Hazelwood — not to be very credible.
The district was ordered to reimburse the Ogawas for tuition at Winston and costs of other related services. However, the district refused to comply, and after months of attempting to enter into a settlement agreement with the district — including offers to waive their reimbursement rights in exchange for NPS placement at Winston — the Ogawas decided to appeal the case to the federal level in the Southern District of California in September 2023.
That court reached the same conclusion in late April, ruling in favor of the family’s Winston placement and ordering the district to pay them both tuition costs and attorney’s fees.
Big spending
The Ogawas hoped the state ruling would end the battle but were devastated to see the district file an appeal shortly after. By then, they had paid tens of thousands of dollars for their daughter’s private placement at Winston, where tuition is just under $39,000, not including costs for additional services.
The family said their special education attorney, Matthew Storey, was thankfully working on contingency and very supportive. Storey could not be reached for comment in time for publication.
“We’ve been paying what the district should be paying for Winston, and we’ve been paying it out of pocket for our daughter. That’s a huge financial toll that’s the district’s responsibility,” Ogawa said in an interview prior to the settlement. “They’re just burying us … You’re trying to fight against this huge public institution, but you’re just one family.”
While the exact amount spent on the Ogawas case is not public, district records indicate that SDUHSD spent considerable sums to litigate this and other special education cases.
According to paid warrants between April 2023 and April 2024, the district paid around $494,000 in legal fees for special education cases and $428,0000 in special education mediation settlements.
Many of these payments went to special education law firm Orbach, Huff and Henderson, which handled the Ogawa case.
“They probably could have already paid for our daughter all the way through senior year with their attorney fees,” Ogawa said. “Money from paid warrants is all from the General Fund. It should be going to students, and instead it’s going to fighting families.”
Other families, including parent Janice Holowka, have also raised concerns about the district’s continued pushback against the Ogawas. She has spoken at several board meetings, asking trustees to cease what she believes is a gross misuse of taxpayer funds.
“The district’s attorneys have been leading you down the wrong path, as evidenced by the OAH case that the district lost in August 2022, which preceded the federal case that the district recently lost in April 2024,” Holowka said at the board’s May 16 meeting. “Anybody with special ed knowledge would not have continued to pursue this losing case and continue to torment this family in this manner.”
Viskanta was the only trustee to respond to questions about the case. She said she was not at liberty to comment on privileged litigation matters.
