By Dani McClain of the Journal Sentinel
Posted: Dec. 1, 2008
When Kina King goes through the classwork her children bring home from school, she has a hard time telling which belongs to 5-year-old Danielle and which belongs to 16-year-old Jamie.
That’s because Jamie, a freshman at Wisconsin Career Academy in Milwaukee, reads at the level of a second-grader. Her writing, with its d’s and b’s reversed and halting attempts at self-expression, is at a third-grade level.
King said she repeatedly had asked Milwaukee Public Schools to evaluate whether Jamie had special needs since the girl was 5. But it wasn’t until Jamie failed first grade for the third time that the district determined that she suffers from cognitive delays and needs additional support.
The question of what MPS should do to compensate the students it has failed to place in special education in a timely manner is at the heart of the third phase in an ongoing class-action suit about how MPS serves special education students. Jamie Stokes is the lead plaintiff in that suit and testified during a weeklong trial that wrapped up in November.
“If they gave her the help she would have been better, not doing coloring books her sister in kindergarten is doing,” King said.
MPS ordered to change
MPS lost in previous rounds of the 7-year-old case and is under orders to make major changes, particularly in how it identifies children who need special education, a process known as “child find.” School Board members have said that they fear the case could substantially increase already-high special education costs and that the court decisions are one of the major forces shaping decisions in MPS.
The latest round in court was focused on what should be done for children who were in the school system from 2000 to 2005, the timeframe the suit addresses. MPS leaders fear that the “compensatory education” that could be ordered by a federal judge would cost additional millions.
Disability Rights Wisconsin, the organization whose attorneys represent the class, argues that MPS has done little to correct its flawed system since September 2007, when U.S. Magistrate Judge Aaron Goodstein found that the district had failed to meet the requirements of federal special education law related to identifying and evaluating students suspected to have disabilities. Because of that failure, students have either languished in regular education or received inadequate special education services, the Disability Rights Wisconsin attorneys have argued. The plaintiffs aren’t seeking money but instead a range of services – including tutoring from outside organizations, speech therapy and internships – they argue these youths need to become functioning adults.
The students and former students affected by the lawsuit should have received an individualized special education plan within 90 days of a parent’s or teacher’s suspecting a disability and making a referral. So if the child wasn’t put into special education until six months after that referral, he or she deserves six months of services to make up for that delay, the attorneys argue.
The district’s financial problems are irrelevant, the group says.
“There is no financial defense for complying with” the Individuals with Disabilities Education Act, said Jeff Spitzer-Resnick, a managing attorney at Disability Rights Wisconsin.
Group proposes remedy
Last month, the group argued that Goodstein should adopt a remedy that includes the following directives:
• All students who were suspended more than 10 days any school year from 2000 to 2005 should be referred to evaluation.
• A separate fund – one not subject to the School Board’s annual budget battles – should be established to fund compensatory education and services.
• An independent monitor should be hired to check the district’s progress on compensatory education. Alan Coulter, a professor at Louisiana State University, already has been chosen to oversee how MPS is implementing its plan to better identify and evaluate children with suspected disabilities. But the DRW attorneys argue an additional monitor is needed.
• MPS should offer compensatory education services – including tuition and support at a technical college or university, and job placement and training – to current students whose entry into special education was delayed as well as to young people who are no longer in the district, either because they aged out or moved.
Pat Yahle, the district’s director of special education, said MPS has focused on training staff how to identify special-needs students since she took over the department in 2002, the year after the lawsuit was initiated. Roughly 17,000 students in MPS receive special education services, which last year cost the district about $180 million.
The district argues that there’s no blanket fix to setting things right with these students, and that schools should continue to use the same system of convening a team of educators to evaluate a child with a suspected disability. “There’s no automatic trigger,” Yahle said on the stand when asked about referring students. “It’s an individual analysis of each child.”
District proposes remedy
The district’s proposed remedy includes the following:
• Kindergarten through fifth-grade students who were suspended 15 days or more and sixth- through 12th-grade students suspended 25 days or more in the period 2000 to 2005 should be referred to evaluation.
• The state Department of Public Instruction, which reached a separate settlement with Disability Rights Wisconsin in March, should pay for half of whatever remedy the judge settles on.
• MPS should be responsible for providing compensatory services only to those students who are still in the district.
• If the district disagrees with a student’s family about what compensatory services are appropriate, the issue should go to binding arbitration.
Neither side knows how much its proposed remedy would cost, but DPI filed a motion in court last month asking Goodstein to reject the district’s request for help in funding compensatory education. “DPI is funding virtually all of the costs involved in the implementation of that settlement,” said Bruce Olsen, an assistant state attorney general representing the agency.
The department has agreed to pay for several positions to train people in MPS, including Coulter’s position as the outside authority.
Another unknown is how many young people would be affected. Much of the expert testimony for both sides focused on a list of at about 9,000 students who, under Disability Rights Wisconsin’s plan, would be referred to evaluation because of their suspension histories.
Attorneys for the district argued that many of the students whose names appear on the list had been suspended for violations such as weapons or drug possession, and that there is no reason to assume that these students need special education services.
“Misconduct is not synonymous with a disability,” said Eric Hartwig, a witness for the district and administrator of the Marathon County Children with Disabilities Education Board in Wausau.
Link to behavior problems
But the correlation of special education needs with behavior problems and truancy is high, the attorneys representing the students argue.
Take Jamie’s attendance record. From the start of this school year until Oct. 7, Jamie had 14 all-day absences and attended her first period class only once.
Jamie hates attending school because of how far behind she feels, the girl said on the witness stand. The other kids make fun of her. Her teachers don’t give her the help she needs. She’s in her second year as a freshman at Wisconsin Career Academy, a charter school that the School Board has given authority to operate. Its teachers aren’t MPS employees.
“She’s got very low self-esteem,” King said of Jamie during the trial. “That leads to her having more behavior problems.”
What’s the remedy?
Attorneys for MPS argued that in order for the district to educate students, they need to be in the classroom unless some extreme circumstance prohibits that. Disability Rights Wisconsin’s attorneys argue that a wider range of services, including home tutoring or online classes, should be offered.
“They tried to blame the kids and blame the parents,” Spitzer-Resnick said of MPS’ attorneys. “I’m not about to say that these kids aren’t challenging. Of course they are. That’s why we have special education.
“You don’t get to wash your hands of them.”
Goodstein’s decision won’t come before February, and his deliberations could take months, attorneys said.