The Investigative Unit exposes strategies used by some districts to delay or deny public education to students with learning impairments; NBC Bay Area calculates how much the Bay Area’s biggest school districts pay outside lawyers to fight parents
By Vicky Nguyen, Mark Villarreal, David Paredes and Kevin Nious
Many parents of students with disabilities are finding that getting the free and appropriate education that their children are entitled to under federal law can come at a great emotional and financial cost. Vicky Nguyen reports.
Students vs Schools: Battle Over Special Education
Under the Individuals with Disabilities Act, or IDEA, public school districts nationwide are required to provide a free and appropriate public education to all students diagnosed with a disability. The mandate requires schools to identify students who may have learning impairments, and to develop a plan to educate them appropriately at no extra cost to parents.
But, as the NBC Bay Area Investigative Unit has learned, many parents of students with disabilities are finding that getting the free and appropriate education that their children are entitled to under federal law can come at a great emotional and financial cost.
“So many school districts ignore the law or don’t take it seriously,” mother Robin Hansen said. “My son Jarrod was very bright. He was an early reader. He could do things like add and subtract three digit numbers in his head,” Hansen said. “You think, wow, this kid is amazing but he’s just a little odd.”
Hansen said, by the time her son reached the 5th grade, she started to notice he was losing ground in school.
“He went from being the smartest kid in class to the clueless kid in class and there were behaviors that erupted…I took him to a private neuropsychologist and he was diagnosed with high-functioning autism,” Hansen said. “I wanted to pull him out and have him go to a special school, and the school district fought us tremendously, and they took us to court.”
Hansen said San Francisco Unified School District leaders determined the appropriate education for Jarrod was a special day class with students who were diagnosed with emotional disturbances.
“He was in a small class with a bunch of kids who couldn’t read or do math,” she said. “And he was like, ‘Why am I in this class?’ And then they let him out in the school yard and he was assaulted and within the first quarter I just pulled him out and so then we ended up in court.”
After months of legal wrangling, and thousands of dollars in fees for advocates and attorneys, a judge decided SFUSD was not providing the appropriate education for Jarrod and ordered that he be placed in a school to work with his autism.
Special Education Statistics
Jarrod’s story is not unique. According to the California Legislative Analyst’s Office (CLA) report, about one in every 10 public school students in California receives special education services. That’s about 686,000 students each year.
Records requested by NBC Bay Area from the Office of Administrative Hearings show that since 2010, more than 10,000 families have gone to court in disputes over special education services. That number is just a tiny fraction of the cases that actually get to that level.
“There’s disagreements between families and school districts, and less than 1 percent of families request a due process hearing, and only 3 percent of them actually go to the hearing,” parent advocate Ann McDonald-Cacho said, citing CLA statistics. “The numbers show that most families…don’t have the resources, they don’t know where to find a lawyer, they don’t know how they could possibly hire a lawyer in order to work out these disagreements,” McDonald-Cacho said.
McDonald-Cacho works at the Disability Rights and Education Defense Fund (DREDF), an organization founded to help families navigate the school system to get the education their children are entitled to.
“For parents, there’s an absolute feeling of betrayal the system is not working the way it’s supposed to work,” said Arlene Mayerson, DREDF co-founder and longtime disability rights attorney.
When asked what she believes is the biggest reason disabled children are not getting a free and appropriate public education under the law, Mayerson said, “Either the school district is denying services because they think it costs too much money or they’re denying services because they’re ignorant about what’s really appropriate.”
Delay and Deny
The problem has become so pervasive, the federal Department of Special Education issued a memo in 2011 warning school administrators that it is not acceptable to “delay and deny” services to students they are obligated to serve.
“It’s a common process,” Morgan Hill resident Jayne Rovianek said after fighting for years to get help in the classroom for her son Richard, who was diagnosed with depression and a bipolar condition. “You’re having to prove your child needs what the law says that your child needs,” Rovianek said.
It wasn’t until she filed a lawsuit and the district settled that Richard finally received help. But Rovianek raises a point many parents expressed – that the delays and denials of services cost their children valuable time in school that often puts them even further behind their classmates in their academic and social development.
These legal battles don’t just affect students with disabilities; all students are affected when districts have to pay legal fees that may otherwise be spent on providing students with the services they need.
The NBC Bay Area Investigative Unit requested records showing the amount of money spent on outside attorneys from 2010 to May 2013 for the three Bay Area districts with the most special education cases: Oakland Unified, San Jose Unified and San Francisco Unified.
The reports show Oakland Unified spent more than $850,000, San Jose Unified spent more than $551,000 and San Francisco spent more than $440,000 on outside counsel to deal with special education lawsuits.
Compare that to the roughly $22,300 a year it costs to educate a special needs student. The districts could have provided services to 83 students in that time period.
“I think most of the situations that end up in court are cases that could have been resolved earlier and much cheaper,” Mayerson said.
In addition to co-founding DREDF, Mayerson also helped rewrite the laws on special education and has spent more than three decades helping families and working to educate federal lawmakers on how to make sure students with disabilities are treated equally in public schools.
“The law works better than no law. But the law doesn’t work ideally because the law requires the parent to be a really astute advocate.”
Sunnyvale mom Nancy Agaiby is just beginning her journey, getting ready to enter a due process hearing with the Sunnyvale Unified School District. Her 6-year-old son Andrew was diagnosed with ADHD, but Agaiby said she has spent the past school year trying to reach an agreement with the district about an appropriate education plan for her son.
“They’re not fighting to save money, they’re fighting a 6-year-old,” Nancy told NBC Bay Area. “One of the staff (members) told me this is protocol, to get turned down over and over until finally they allow you in.”
Agaiby said, after initially refusing, the district eventually promised to provide counseling and one-on-one time for Andrew so he could stay in a mainstream classroom. But Agaiby said, on two classroom visits, she did not see her son receiving any of those services. Instead, she said the district pressured her to sign a plan to place Andrew, a kindergartener, in a class with older children who were diagnosed with autism.
She said, after doing a lot of research and speaking to parents in a support group, she turned to an attorney as a last resort. “I felt mad. Angry. It’s not ok to play games, especially when you know this child needs services,” Agaiby said.
Morgan Hill Unified Interim Superintendent Steve Betando says he understands that parents at his school district and others have become frustrated with the system. He acknowledged that some districts have intentionally denied services to special needs students in an attempt to potentially save money.
“I have seen that. I don’t believe that is ethical, it’s not professional,” Betando said.
Betando said he was not on staff during Jayne Rovianek’s case, but the district is under new leadership and is working hard to improve special education services. Just this year the district began offering $2,000 hiring bonuses to recruit qualified special education teachers. They have to commit to two years teaching at MHUSD and receive their bonus in the first paycheck.
Betando said that funding is a challenge all schools face. The federal government is supposed to pay for 40 percent of special educations services, but on average only chips in 17 percent, leaving districts to make up the difference.
Still, Betando agreed that tight budgets are no excuse to delay or deny services.
“Equity doesn’t mean everybody gets the same,” Betando said. “Equity means everybody gets what they deserve to help make them the most successful.”
Most of the Bay Area districts NBC Bay Area asked to speak with, including, San Jose Unified and San Francisco Unified, declined or ignored our requests.
Administrators for Sunnyvale School District also declined our request for an interview and opted to send a statement reading in part:
Sunnyvale School District conscientiously follows the provisions of IDEA for all students. Our district goals specifically address “improving student learning results with a focus on under achievement at all levels” as well as “increase and deepen community engagement.” We pride ourselves on working as team to provide a free and appropriate public education to all students.
In addition, NBC Bay Area also reached out to Pleasanton Unified School District, hoping to feature the district’s specialized program helping students with autism, after speaking with a parent who lauded the success her son has had since enrolling.
NBC Bay Area asked the district to profile the program as a model of how districts can work with students and help them succeed.
However, PUSD declined the request, telling NBC Bay Area as well as a parent in the district, that by publicizing the program, it could overly tax the services and resources at the district by attracting too many families who would want to move to the Pleasanton district and try to enroll in the program. Special education director Sharon Falk said she has had “parents from Asia” call her in the past asking to move their children into her district after hearing about successful special education classes.
In a subsequent email response, the district later changed its explanation for declining the NBC interview request, citing student privacy concerns.
“That’s sad. Ideally if there is a district that does have an excellent program like that, we’re all a general community and we need to share those programs. We’re constantly looking for new ways of doing things,” Betando said when NBC Bay Area recounted the response from PUSD about why it declined to go on camera.
As for Robin Hansen’s son Jarrod, he earned his high school diploma and graduated with his peers, a success shared by his family. Hansen now writes a regular blog on special education services to support parents and arm them with the education they need to ensure their children get the schooling they’re promised.
“When you have a child, you have to do everything in your power to raise that child. You want them to be independent when they grow up. Education is the answer to that,” Hansen said.
Meanwhile, a lawsuit filed by the Concerned Parents Association on behalf of parents throughout the state against the California Department of Education is currently heading to trial. The suit alleges that the CDE is allowing schools to shirk their duties in providing special education services. Advocates hope that this statewide lawsuit will prevent hundreds of future suits from ever being filed.