Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CS000291
DAVIS, J.
This appeal involves corporal punishment and a private, nonsectarian school’s request for certification from the California Department of Education (CDE) as a “nonpublic, nonsectarian school” (NPS). An NPS is defined as “a private, nonsectarian school that enrolls individuals with exceptional needs pursuant to an individualized education program [IEP] and is certified by the [CDE]. (Educ. Code, § 56034.) The Legislature has stated “that the role of [an NPS] . . . shall be maintained . . . as an alternative special education service available to a local educational agency and parents.” (§ 56366.)
Hereafter, undesignated section references are to the Education Code.
The California Education Code prohibits public school authorities from imposing corporal punishment (including painful behavioral interventions) on students (including students with exceptional needs). (§§ 49000, 49001, 56520, subd. (a)(3), 56523, subds. (a), (b)(1).) The Education Code allows, however, for a waiver of any of its provisions if necessary to implement an individual student’s IEP, so long as federal law is not violated. (§ 56101.)
Hereafter, corporal punishment and painful behavioral interventions will be referred to under the simple rubric of corporal punishment.
Among other NPS certification requirements, a private school must (1) comply with all applicable state laws and regulations, and (2) have and abide by a written policy for pupil discipline that is consistent with state law and regulations. (§§ 56366.1, subd. (a)(5), 56366.10, subd. (d), respectively). These applicable state laws and regulations include the public school ban on corporal punishment. (See § 56365, subds. (a), (b), (c).)
The private school that was denied NPS certification here by the CDE, the Judge Rotenberg Educational Center, Inc. (JRC), was found to employ corporal punishment as part of its educational philosophy and program. JRC argues on appeal that, by deploying the section 56101 waiver provision for each California student at JRC subjected to such punishment as part of the student’s IEP, JRC can comply with the applicable state laws and regulations on corporal punishment and thereby satisfy these two certification requirements in that respect.
Whether the section 56101 waiver provision may be used in this fashion to satisfy these two certification requirements presents interesting legal issues. As we shall explain, however, these issues will have to wait another day. We decide this case on a more prosaic basis: the record here does not show that JRC, as mandated by the NPS certification requirement of section 56366.10, subdivision (d), “has and abides by a written policy for pupil discipline which is consistent with state . . . law and regulations” when it comes to corporal punishment, even assuming that the section 56101 waiver provision can be deployed in this way. (Italics added.)
Accordingly, we affirm the judgment that denied JRC’s petition for writ of administrative mandate. (Code Civ. Proc., § 1094.5.)
Background
All individuals with exceptional needs have a right to participate in a “free appropriate public education.” (Educ. Code, § 56000; 20 U.S.C. § 1400(c)(3) [corresponding federal statute--Individuals with Disabilities Education Act--known as IDEA (see 20 U.S.C. § 1400(a))].)
Pursuant to federal and state law, the mechanism for ensuring that an individual with exceptional needs receives a free appropriate public education is the creation of an IEP for that individual. (20 U.S.C. § 1414(d); Educ. Code, § 56341.)
As noted, an NPS is a school that enrolls individuals with exceptional needs pursuant to an IEP and is certified by the CDE. (§ 56034.)
According to the CDE, an NPS must be certified by the CDE for a local educational agency to use special education (public) monies to fund a placement there, unless a waiver of certification is obtained. (See §§ 56836.20, subd. (b), 56366.2, subd. (b).)
Section 56366.1 sets forth the basic requirements for NPS certification. As pertinent here, the certification applicant must provide “[a]ffidavits and assurances necessary to comply with all applicable . . . state . . . laws and regulations.” (§ 56366.1, subd. (a)(5).) These state laws and regulations include the proscriptions against corporal punishment. (Educ. Code, §§ 49000, 49001, 56520, subd. (a)(3), 56523, subds. (a), (b)(1); Cal. Code Regs., tit. 5, § 3052, subds. (a)(5), (ℓ).)
Section 56366.10 sets forth additional requirements for NPS certification, including this one found in its subdivision (d): “The school has and abides by a written policy for pupil discipline which is consistent with state and federal law and regulations.”
Under section 56101, however, a local educational agency may request the State Board of Education to grant a waiver of “any” Education Code provision or related regulation “if the waiver is necessary or beneficial to the content and implementation of” a pupil’s IEP, so long as specified federal rights and laws on the subject are not abrogated. (§ 56101, subd. (a).)
JRC applied to the CDE to become certified as an NPS. JRC is a residential, special education school (private, nonsectarian) located in Massachusetts that provides services to individuals with severe behavioral problems. JRC uses an intensive behavioral modification treatment program based on Skinnerian Behavioral Psychology. If positive and nonintrusive behavioral procedures prove ineffective when used alone, JRC supplements those procedures by using physically-based “aversive[]” behavior modification techniques. One such technique is a remote-controlled electrical shock device, known as the Graduated Electronic Decelerator (GED), that was developed and is manufactured by JRC.
The CDE denied JRC’s application, explaining that to grant it “would be tantamount to allowing unrestricted use of aversive therapy [i.e., corporal punishment] upon California pupils” in violation of California’s prohibition of corporal punishment. For Education Code purposes, “‘corporal punishment’” is defined as “the willful infliction of, or willfully causing the infliction of, physical pain on a pupil.” (§ 49001, subd. (a) [excepted from this definition is reasonable and necessary force for specified defensive and control purposes].)
JRC unsuccessfully appealed the CDE’s denial of certification to an Administrative Law Judge (ALJ) of the Office of Administrative Hearings.
In factual findings not challenged by JRC on appeal, the ALJ found that “[the GED] delivers a painful electric shock to the student directly through the student’s skin. Remote operators can select the level and duration of the electrical shock. [¶] Physical side effects of the treatment have included blistering and browning of the skin and erythema [reddening of the skin from a physical cause]. The GED unit is worn 24 hours a day. As of August of 1992, the average (median) student had used the device for 10.3 months. Currently, approximately [28] percent of JRC’s students receive shock therapy as part of their treatment plans. [¶] . . . [¶] . . . JRC intends to seek a waiver under section 56101, subdivision (a), for any California student it deems in need of electric shock therapy. Additionally, JRC’s policy permits use of electric shock therapy only [if approval is obtained from the parents, from the JRC’s human rights and peer review committees, and from the Massachusetts Probate and Family Court in a procedure that substitutes the court’s determination for that of the incapable student’s, and such therapy is in the student’s (IEP) and there are no medical or psychiatric contraindications]. [¶] . . . JRC’s philosophy is that students thrive on behavioral incentives and disincentives. JRC strongly favors electrical shock treatment as a disincentive to unwanted behavior.”
From these factual findings, the ALJ concluded: “The fact that JRC intends to seek waivers, and has a system in place to authorize electric shock therapy, is uncontroverted evidence that JRC intends to use corporal punishment on certain California students. Therefore, it is axiomatic that JRC cannot provide the assurances . . . state law require[s], that students will be free from corpor[]al punishment at JRC. Likewise JRC cannot comply with the requirement that it have a written policy for pupil discipline which is consistent with California state . . . regulations.”
JRC does not contest on appeal the ALJ’s factual finding that JRC employs corporal punishment. In light of this concession, the following principle from Kate’ School v. Department of Health (1979) 94 Cal.App.3d 606, cited in the briefing, has no role to play here in determining whether JRC’s “aversive treatment” can even be considered “corporal punishment”: “the label placed upon an act or the alleged motivation of the person performing the act is not determinative of whether that act constitutes punishment. The prohibition of corporal punishment is the prohibition of all infliction of pain upon the body even where the motive is not evil and the act is done with the intention of treating.” (Kate’ School, supra, 94 Cal.App.3d at p. 617.)
JRC sought review of the ALJ’s decision by filing a petition for administrative mandamus with the Sacramento County Superior Court. (Code Civ. Proc., § 1094.5.) The superior court found that substantial evidence supported the ALJ’s factual findings and conclusion quoted just above. The superior court additionally noted that JRC cannot directly apply for a section 56101 waiver, but must go through the applicable local educational agency.
Discussion
As framed by JRC, the original issue on appeal was whether JRC--by relying on the section 56101 waiver provision for each California student subjected to corporal punishment as part of the student’s IEP--could comply with the applicable state laws and regulations on corporal punishment and thereby satisfy the NPS certification requirement of section 56366.1, subdivision (a)(5), that an NPS must comply with all applicable state laws and regulations.
In the course of considering this issue, an additional NPS certification requirement came to the fore: section 56366.10, subdivision (d)’s requirement that an NPS must “ha[ve] and abide[] by a written policy for pupil discipline which is consistent with state . . . law and regulations.” We requested and received supplemental letter briefing from JRC and CDE on the effect of section 56366.10, subdivision (d).
As noted, the CDE denied JRC’s application for NPS certification, because to grant it “would be tantamount to allowing unrestricted use of aversive therapy [i.e., corporal punishment] upon California pupils.” And the ALJ upheld the CDE’s denial, noting, in part, that JRC “cannot comply with the requirement that it have a written policy for pupil discipline which is consistent with California state . . . regulations.”
A review of the supplemental briefing and the record regarding the section 56366.10, subdivision (d), certification requirement shows that JRC does not have a written policy for pupil discipline that is consistent with California law and regulations on corporal punishment.
The pertinent written policy in the record is the JRC “Policy and Procedures Regarding Individualized Educational Programs [i.e., IEPs].” As the CDE argues, this written policy authorizes the use of corporal punishment in contravention of section 56366.10, subdivision (d). For example, the preadmission planning process for students contemplates that JRC personnel will “formulate the behavioral interventions and treatment procedures that JRC deems are reasonably likely to be necessary to treat the student if and when the student is admitted to JRC, including the potential for physical aversives [i.e., corporal punishment] as part of a substituted judgment behavior modification treatment plan [i.e., a Massachusetts court substituting its judgment for that of the incapable student], based on the student’s history.” The policy further states, as part of this preadmission process, that if “JRC determines that the student will reasonably likely require treatment with physical aversives based upon the student’s history, JRC will provide a copy of and will explain to the parent JRC’s Consent Forms for Court-Authorized Treatment Procedures.”
There is nothing in JRC’s written policy on IEPs that mentions California’s prohibitions on corporal punishment, or the NPS certification requirements of section 56366.1, subdivision (a)(5) or section 56366.10, subdivision (d), or the use of the section 56101 waiver provision to meet those certification requirements. There is nothing in this written policy, as far as we can tell, that mentions or implies anything about California students at all, although we note there is a special procedure specified for JRC students from New York.
This lack of a written policy consistent with California law for pupil discipline (corporal punishment) is not surprising given the ALJ’s unchallenged factual findings that show the integral role that electric shock treatment plays in JRC’s educational philosophy and program. As the ALJ indisputably found, “JRC’s philosophy is that students thrive on behavioral incentives and disincentives. JRC strongly favors [physically painful] electrical shock treatment as a disincentive to unwanted behavior.” Currently, approximately 28 percent “of JRC’s students receive shock therapy as part of their treatment plans.”
Furthermore, JRC cannot rely on the simple fact that its written policy is tied to IEPs (i.e., individualized education programs), as is the section 56101 waiver provision. The term “individualized education program” is not unique to California; it is a general term applied nationally pursuant to federal law. (See 20 U.S.C. § 1414(d).)
The best that JRC can muster along the lines of a section 56366.10, subdivision (d), written policy, on this record, is its bald assertion, in its supplemental briefing, that it “has such a policy” and that it has “provided documentation in the record that it will abide by such a policy.” JRC, however, does not provide a record citation to this policy in its briefing. And the documentation provided is simply the Assurance Statement from JRC that accompanied its NPS certification application. This statement merely parrots, in form language, the statutory language of section 56366.10, subdivision (d). In fact, there is an additional problem with the Assurance Statement in the record: the statement has not been signed by JRC, which is to be done under penalty of perjury.
We uphold the denial of JRC’s application for NPS certification because JRC has not shown that it has and abides by a written policy for pupil discipline that is consistent with California law and regulations on corporal punishment. (§ 56366.10, subd. (d).)
Our decision does not necessarily mean that JRC is unavailable as a special education school for California families and local educational agencies. There is a California student, Ben W., who has been permitted by California public school authorities to attend JRC and receive electrical shock treatment. This permission was granted using the section 56101 waiver provision. The State Board of Education approved a request from Ben W.’s local school district, on his behalf, to use section 56101 to waive both the NPS certification requirement of section 56366.1, subdivision (a), and the legal prohibitions against corporal punishment.
Disposition
The judgment is affirmed.
I concur: BUTZ, J.
I concur in the judgment and in the majority opinion with the exception of footnote 4. In my view, footnote 4 is unnecessary to the judgment, is dictum, and should be omitted from the opinion.
SIMS, Acting P. J.