Credit: Jane Meredith Adams/EdSource Today
March 19, 2017
The California Department of Education said last week that it will comply with a federal court order to improve significantly its system for monitoring special education, after years of legal maneuvering to block the changes.
The department said it would end its legal challenges and follow a “corrective action plan” for special education monitoring issued in 2014 by the U.S. District Court of Northern California in San Francisco. Last week, the Ninth Circuit Court of Appeals issued a mandate upholding its December decision that the state must comply with the district court order to follow the corrective action plan. The department had sought a rehearing, after losing its appeal to overturn the order. Legal recourse would be an appeal to the high court, which the department said it had rejected.
“We are not considering an appeal to the U.S. Supreme Court,” Cynthia Butler, a spokeswoman for the California Department of Education said in an email Monday. “We are continuing to work on the corrective action plan imposed by the court monitor.”
Advocates for students who receive special education services welcomed the news. “The California Department of Education must now comply with the corrective action plan and reform its dysfunctional state-level monitoring system,” said William Koski, an attorney from Stanford Law School’s Youth Education Law Project. Koski is one of several public advocacy attorneys representing the plaintiffs in a 1996 class action lawsuit, Emma C. et al. v. Delaine Eastin et al., that led to the corrective action plan.
“The corrective action plan requires reforms to the design of CDE’s state-level monitoring system that will benefit all concerned about CDE’s responsibilities to monitor and enforce special education laws,” said Larisa Cummings, a staff attorney at the Disability Rights Education and Defense Fund who is representing the plaintiffs in the Emma C. lawsuit.
The changes in monitoring come as California is taking steps to address a root concern about special education services statewide: why many students with disabilities, about 85 percent of whom have no intellectual disability, are not receiving the supports that would allow them to achieve at the same high level as their peers, according to the Statewide Special Education Task Force final report in 2015. Achievement levels for students with disabilities in California are among the lowest in the nation, the report found. Changes in credentialing requirements for special education and general education teachers, urged by the task force, now are underway as part of a strategy to bring all students — those with or without disabilities — into a unified teaching and administrative system to improve outcomes.
The corrective action plan emerged from a long running 2003 consent decree that settled the Emma C. lawsuit and continues to govern special education services in East Palo Alto’s K-8 Ravenswood City School District. The lawsuit, brought by eight students in the Ravenswood district, alleged erratic or nonexistent special education services in the district, as well as poor oversight by the California Department of Education.
Under the terms of the consent decree, the California Department of Education agreed to monitor improvements in special education in Ravenswood in areas including staff training, student assessments, the creation of individualized education plans and the integration of students with disabilities into general classrooms.
And the department agreed to submit its monitoring system to a court monitor, appointed by Judge Thelton Henderson of the U.S. District Court, who would determine whether the system is “capable of ensuring continued compliance with the law” to serve children with disabilities in Ravenswood. Both the Ravenswood plaintiffs and the California Department of Education agreed in the consent decree to grant the court “broad authority” to review and improve the state monitoring system, the Ninth Circuit Court of Appeals noted.
While the consent decree concerns the corrective action plan only as it applies to the monitoring of the Ravenswood district, changes to the monitoring system would likely affect oversight of special education in other districts, said Karli Eisenberg, a deputy attorney general representing the California Department of Education. Eisenberg argued before the Ninth Circuit Court of Appeals in San Francisco in November that changes to its monitoring system should not apply to how the department monitors districts across the state.
“The parties to this action signed a consent decree outlining an agreed-upon remedy, the Ravenswood corrective action plan,” Eisenberg said to panel of three judges. “Over 10 years later, the district court has imposed an entirely new remedy, a statewide corrective action plan, affecting not just the 400 (special education) students in Ravenswood but the 600,000 students statewide receiving special education services.”
The judges – Chief Judge Sidney Thomas and Judges Michelle Friedland Alex Kozinski – quickly got to the heart of the state’s approach to monitoring special education.
Friedland asked Koski: “Am I understanding that basically it’s the state who said if you’re challenging Ravenswood’s monitoring, you’re really challenging the whole state because it’s a uniform system? Is it the state that said we just have one system so it is the whole state?”
Koski: “The state has offered only one system, so that’s exactly right.”
The plan requires the California Department of Education to create a monitoring system that uses more rigorous data collection, program evaluation and intervention to ensure that a district is in compliance with the federal Individuals with Disabilities Education Act. It calls for the state to explain precisely how it determines, among other measures, that a district is identifying children in need of services and providing students with disabilities who are suspended with behavioral supports that could allow them to remain in class.
The California Department of Education has been taking steps to comply with the corrective action plan since it was first ordered in 2014, after losing its motion in district court to stay the order while the department worked to overturn it. Maureen Burness, co-executive director of the Statewide Special Education Task Force said the Emma C. consent decree already has spurred changes in special education policy.
“I have been in several different meetings over the last few years where the ongoing status of that (Emma C.) case has been claimed as the reason for the increase in monitoring from the state department of education,” Burness said.
In the Ravenswood district, the termination of the consent decree depends on two factors: evidence that Ravenswood has met its improvement goals and proof that the state has a monitoring system that will keep Ravenswood improvements in compliance with federal law.
“We are on the verge of having Ravenswood come into full compliance with the Ravenswood self-improvement plan,” Koski said. But before that can happen, he said, “the state must have in place a system to ensure compliance with the law.”
He added, “The federal court has looked at the state-level special education monitoring system and found it lacking under the Individuals with Disabilities Education Act and under the consent decree.”
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