- Lyn Jensen
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By Lyn Jensen, Carson Reporter
The rights of thousands of children with special needs in the Los Angeles Unified School District are at stake in a lawsuit that’s bounced between the U.S. District Court and the Ninth Circuit Court of Appeals for four years. LAUSD is the defendant in the class action suit filed in 2013 by several parents with special needs children.
At issue is whether the LAUSD is complying with a 1975 federal law and a 1995 consent decree.
“The LAUSD has routinely been violating the rights of the special needs children,” charges attorney Eric Jacobson via e-mail. Jacobson represents the parents who, on behalf of their children, allege the LAUSD has engaged in a district-wide pattern of improper activities in violation of the 1975 federal Individuals with Disabilities Education Act by forcing students with special needs into general education schools.
Often referred to as IDEA, the law says each student with special needs must be assessed as to the “least restrictive” placement on an individual basis. The parents argue that for their children, a special education center is the least restrictive environment.
The parties are primarily at odds over the interpretation of a portion of the consent decree that was renegotiated and modified in 2003.
The court filing alleges that, “The District has been engaged in a district-wide pattern of improper activities to comply with Renegotiated Outcome 7 which violate IDEA” and the modified consent decree.
The court could hold the district in contempt for violating the modified consent decree but so far, technicalities and appeals have resulted in no clear outcome.
The LAUSD has been closing special education schools and mainstreaming thousands of special needs students into general education for several years. The lawsuit alleges this is in violation of not only IDEA but also the Chanda Smith Modified Consent Decree. Chanda Smith was a special needs student in the LAUSD during the 1990s and the plaintiff in a federal case that resulted in a consent decree named after her.
Now, the issue is whether the LAUSD violates IDEA and the Chanda Smith Modified Consent Decree by placing students in general education without changing their individual assessments and without proper parental permission.
Jacobson was involved in mediation that led to the Modified Consent Decree in 2003. The LAUSD has still not met the requirements to get out from under it.
Jacobson said around 2002 the American Civil Liberties Union, which brought the Chanda Smith lawsuit, began arguing children with disabilities must be mainstreamed into the general student population. Some parents represented by Jacobson and another lawyer, Steve Masada, went to mediation with the district to settle the dispute in 2003.
“Starting in 2012 or so the ACLU and the LAUSD joined forces [to mainstream disabled students into general education],” Jacobson said. “What’s at stake is the right of the parents of the disabled to guide their education for their children.”
“The ACLU and some other civil rights groups consider special schools for children with disabilities as segregated,” Efron stated in an email. “Nothing could be further from the truth.”
She said for many years LAUSD housed some classes for non-disabled students at schools such as Frances Blend, for years the only school for the blind in the district. A few years ago the district moved the non-disabled students out — then argued special schools for the disabled were “segregated.”
“LAUSD has special schools for gifted kids, pregnant minors, performing arts [and] at-risk youth,” Efron explained. “Only those schools for disabled kids are [labeled] segregated.”
“Special schools are mandated by the federal government as part of a continuum of options [in the student assessments which IDEA mandates]. They are also mandated by the Chanda Smith Modified Consent Decree,” Efron argued.
She speaks as a former principal (now retired) at Frances Blend. It was closed in 2013 and the students placed in what LAUSD called an “integrated learning community” at Van Ness Elementary.
Efron said that around 2012, the Chanda Smith Modified Consent Decree “morphed into a move to close all special education classes.” She added that since the LAUSD began closing special education schools in 2013, blind students now receive only about 45 minutes of education in Braille per month.
In response, some parents, including Mina Lee and April Munoz, representing special needs children, filed a Motion to Intervene in federal court in 2013. The lawsuit charges the LAUSD moved “solely to meet the quota requirements” to comply with the Chanda Smith Modified Consent Decree.
“Every child with a visual impairment is being assigned to schools regardless of special needs,” Jacobson argued. “Kids are being forced to attend schools that do not have bathroom facilities that they can use. Blind children are being moved to schools that are dangerous.”
In 2014, Judge Ronald Lew denied the motion to intervene on grounds of timeliness and failure to exhaust administrative remedies. The decision was appealed. In February 2016, the appeals court overruled Lew’s decision and ordered intervention.
The case has since gone back and forth between Lew’s court and the court of appeals at least twice. In June 2016, the LAUSD petitioned the appeals court for a rehearing.
Subsequently, some parents pleaded with the LAUSD board at a June 14 meeting to withdraw the request. The majority — Steve Zimmer, Monica Garcia, Monica Ratliff and Ref Rodriguez — voted against withdrawal. The appeals court turned the LAUSD down.
In August 2016, Lew granted motion to intervene but only to the parents actually named, not the entire class, and denied an injunction on another technicality. The parents appealed again. Both sides filed appeals briefs early in 2017.
Jacobson said in a phone interview that the appeals court decision could come at any time. If the appeal is successful, the case will likely be sent back to Lew again.
He said that if the appeal is not successful, the parents must go back to the independent monitor charged with enforcing the modified consent decree who, he maintains, is representing “only parents who believe in full inclusion.”
The LAUSD declined to comment. Littler Mendelson, the law firm representing the district in this case, also declined to comment.