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Photograph by Felipe Buitrago

Not Pictured: Trouble: Michelle Oliverez with a photo of her son Brandon, the center of her dispute with two local districts.

Blackboard Rumble

How the question of whether one San Jose student was eligible for special ed turned into a battle royal

By Raj Jayadev

WHILE conflicts between concerned parents and school administrators regarding a child's academic development are not unusual—and might even be considered part of the checks and balances of our public education system—few amount to the 911-calling, restraining-order-issuing, criminal-court-case dramatics that have defined Michelle Oliverez's battles over her son Brandon's schooling.

Oliverez went to court last month to face criminal charges stemming from an incident with the San Jose Unified School District eight months ago, and was being remanded for a truancy violation for her children which resulted from a dispute with the nearby Burbank School District.

Charges like "disruptive presence at school," "false report of emergency," "disturbing the peace" and "resisting arrest" are enough to make you wonder "how did it come to this?" And indeed, the arguments on both sides of Oliverez's case raise unsettling questions about our education system: who gets to decide how a child is schooled? Who gets to determine if he or she has special needs? And is the process used to determine that a fair one?

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The issues with Brandon's school began at SJUSD's Horace Mann Elementary, where, for the first time, he was showing a new interest and engagement with learning. Having had difficulties keeping up with his peers, Brandon was placed in special day classes, a program of usually around 12 students per instructor and made for children with learning disabilities.

"Brandon was actually excited when he got back from school," his mother says. "He'd talk about his teacher, and he wanted to read on his own."

But Brandon was placed back in mainstream classes in October of 2004, and his enthusiasm vanished as unexpectedly as it began.

"The change in him was huge," says Oliverez. "He didn't want to get out of bed anymore, didn't want to go to school, and was depressed all the time."

Oliverez talked to the school about placing him back in special education, but the district denied the request. That's when Oliverez and SJUSD administrators began an eight-month legal brawl that would eventually bring Oliverez in front of a Santa Clara County judge.

In February of this year, after an intense one-woman pressure campaign involving meetings with school administrators, letter writing and sit-downs with district officials, Oliverez was told that the school would not consider placing Brandon back in special day classes without testing him. Oliverez told administrators she wanted to see her son's academic files before making a decision about testing, but they refused to give her those files, and tested Brandon without his mother's consent.

Oliverez than filed five complaints with the California Board of Education against the San Jose Unified School District. The board eventually found the district out of compliance for assessing a student without a parent's written consent, as well as failing to provide student records.

While Oliverez and SJUSD were going round after round, Brandon seemed to be shrinking back into himself, Oliverez says.

"I'd call him 'roo,'" she says, "'cause he'd be like a baby kangaroo in his mother's pocket."

Going Nuclear

In April, Oliverez wrote to San Jose Unified School District Special Education director Flora England, stating she didn't want her son involved in any testing, and that she was conducting an independent assessment that she would hand over when completed. The letter, polite yet definitive, also diplomatically stated, "I know we all believe that with the proper education, all students can learn and that all students can succeed."

Oliverez says she was dropping off the letters to the cubicles of several officials when a SJUSD officer, who is also an San Jose Police Department officer, started following her.

"He told me I had to leave, and I told him that I am here on business, so if you think I'm breaking the law, then do your job," Oliverez says. She says she saw the incident as an act of civil disobedience for a just cause—her son's education. School administrators and law enforcement saw it as unacceptable behavior.

Oliverez was arrested and spent a day in jail, and was charged with "disruptive presence at a school," "resisting arrest," "false report of emergency" and "disturbing the peace." The district attorney offered deals if she pleaded guilty, but Oliverez refused to take them, maintaining she hadn't done anything wrong.

New School, Same Struggle

The Oliverez family moved to west San Jose in August. Oliverez registered her son with the Luther Burbank School, a one-school district. Brandon was enrolled in special day classes, and walked to school, as it was only a few blocks from their new home.

But on Sept. 9,, four days into the school year, Brandon was pulled from his fifth grade classroom at the Luther Burbank school. Michelle Oliverez was told she had not provided proper proof of residency—at least three different documents showing a valid address within the district.

"I was outraged. I was sure that everything was OK," she says. "Brandon was getting settled into classes, and the next thing I know, my son can't go to school."

Richard Rodriguez, the district superintendent, says Oliverez was "belligerent, irate and out of control" when she came to get Brandon. He says he is now the only one allowed to speak with her, because she has been rude to his staff. Oliverez says the administration was curt with her.

Shortly after Oliverez took Brandon home, Santa Clara sheriff's deputies came to the door. They informed her that because of a call they received from Rodriguez, she was no longer allowed to go to the school without a deputy present.

Rodriguez says he was shocked at how quickly the situation with Oliverez escalated.

"I've been in this business for 37 years," he says, "and I've never been involved in a case like this."

In the last week of October, Oliverez submitted additional documents regarding her residency, and Rodriguez accepted the papers as valid representations of residency in the district. After six weeks of Brandon out of school, Michelle can now re-enroll her son in the Luther Burbank School.

'Believe in Me'

But as Michelle Oliverez's was fighting to get her son back into school, she still was in court facing the four charges she picked up in the course of her tanglings with San Jose Unified School District. After being told by the judge that the potential time she is facing if convicted could lead to her children being taken from her, she has remained steadfast in proclaiming her innocence.

"If I have to take a bullet for my son's education, or for all the other mothers who fight for their children's education, than I'll take that bullet," she said after her first day in court.

Oliverez has since been through two trials. The first trial was deemed a mistrial due to a hung jury, and the second trial found her innocent of all charges except for the "false report of emergency," a charge which stems from a call she made before her arrest in April saying she felt threatened by the SJUSD officer. The judge gave her time-served, three weeks, for the sentence. Oliverez had been remanded since the beginnings of the court proceedings 22 days prior, when she stood up in court to demand that her attorney be fired. The judge responded by locking her up.

While Oliverez was sitting in the Elmwood Women's Correctional Facility, Child Protective Services had taken Brandon and Miles from their great-grandmother's house, where they were staying. Her great grandmother had called CPS because she could no longer care for the children. But instead of returning Brandon and Miles to their mother when she was released, they charged her with a "failure to protect" order, meaning a trial will decide whether Oliverez can still be the caretaker of her two kids.

The hearing to set the date for the trial is Dec. 2, and many of the reasons behind taking the children away from their mother come from the incidents she has had with the schools. Listed as supporting facts for the "failure to protect" charge are the arrest for the four charges from the San Jose Unified School District incident, and her being incarcerated, which occurred during her trial for the charges. Also noted as a justification for taking the kids is Brandon's absence from school, even though Oliverez has ample paperwork showing her efforts to get Brandon back into school.

She was allowed to see Brandon and Miles, who are staying at a foster home, in a supervised visit on Nov. 22. She was instructed to not have "adult conversations" with Brandon or Miles, however, so she could not explain what was happening to their family or the upcoming trial that would determine the fate of their family.

"I feel like I am in a war," says Oliverez, through tears. "It is a disaster when you don't know where your children are. ... When I saw Brandon, he would just cling to me and cry. He doesn't understand what's going on. All I could say is to believe in me."

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From the November 30-December 6, 2005 issue of Metro, Silicon Valley's Weekly Newspaper.

Copyright © 2005 Metro Publishing Inc. Metroactive is affiliated with the Boulevards Network.

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