Court proposes ‘probationary period’ for special education oversight; SPLC objects

A federal judge presiding over a seven-year-old consent decree meant to improve special education services in New Orleans says it’s time to end court-mandated oversight of city charter schools. But attorneys with the Southern Poverty Law Center — which filed the lawsuit that led to the consent decree more than a decade ago — say the local school system is not ready.

A plan suggested by US District Court Judge Jay Zainey would in effect allow the defendants — the Orleans Parish School Board and the Louisiana Department of Education — to follow their own internal special education protocols without monitor oversight.

The independent monitors currently evaluate how well the district and state provide special education services through a series of metrics, including how many students are diagnosed with special education needs each year and how many service minutes are provided. Then the state provides a more in-depth overview of the lowest performing schools. The monitors also have access to the internal metrics of the district and state use to select those schools.

During the “probationary period” proposed by Zainey — which could lead to an exit from the consent decree — current monitoring would cease. However, the judge could allow monitors to evaluate whether the district and state are following self-monitoring and evaluation plans they submitted to the court last year.

SPLC attorney Lauren Winkler told The Lens that both the city and state’s monitoring plans are more reactive than proactive, failing to provide a strategy to prevent violations of federal special education law at local public schools.

“They are really kind of a recitation, from our perspective, of their policies that are already in place,” she said.

Winkler said an identified problem at a school has almost always been what has prompted on-the-ground action.

“Statewide, the onsite monitoring is almost exclusively due to the consent judgment from what we can tell.”

The group also objects to ending independent monitoring without having given the monitor a chance to evaluate the impact of COVID-related disruptions to special education services. The most recent report from the court-appointed independent monitor, submitted in January, is based on two-year-old data. Any change in monitoring should not go forward until data from the last two school years has been analyzed and submitted, they argue, especially in light of COVID-19’s impacts on learning overall and students with disabilities in particular.

“We really haven’t seen anything from the two years that students’ education has been really disrupted,” Winker said in an interview.

The Southern Poverty Law Center originally filed the class-action suit that led to the consent decree in 2010 on behalf of 10 families alleging that the city’s charter schools were admitting too few special-needs students and failing to provide proper services to the ones they did enroll While the suit initially targeted the Louisiana Department of Education, which at the time ran dozens of charter schools in New Orleans through the Recovery School District, the Orleans Parish School Board — which is now responsible for the overwhelming majority of city charter schools — later joined as a defendant.

The consent decree, proposed in late 2014 and approved in early 2015, laid out a series of metrics — measuring things like how many special education students are enrolled at each school and how much time special education students spend using required services — used to red- flag certain schools for more intensive monitoring.

There have previously been problems with the monitoring program. In 2017 and 2018, the state Department of Education mistakenly selected 10 schools that didn’t actually meet the criteria for monitoring, meaning other schools that should have been more closely scrutinized were passed over. And still, the department discovered problems at those schools.

Now, as the state and NOLA Public Schools seek to exit the consent decree, nine of the district’s roughly 80 schools are still under corrective action plans issued by the state for special education deficiencies. District officials say they continue to monitor them. Separately, the district has flagged two city schools for failing to provide adequate special education services.

LDOE spokesman Matt Johnson said the state does not comment on pending litigation.

Asked if the district had any comment on the proposition, NOLA Public Schools district spokesman Rich Rainey said the district continues to work with the state and SPLC.

“The OPSB has and continues to work cooperatively with State defendants and plaintiffs’ counsel to implement the Consent Judgment,” Rainey wrote. “This work includes actions to bring ultimate closure to the Consent Judgment.”

Early this month, Zainey denied Winkler’s request to formally submit an objection to the court’s recommendation for a probationary period. Winkler said the organization stands by the objection.

“SPLC objected to the suggested probationary period to suspend independent monitoring for Defendants,” she wrote in an email last week. “Independent monitoring should be up-to-date before determining next steps in this case.”

“SPLC is looking forward to the two most recent years (2020-2021 and 2021-2022) of independent monitoring reports in Orleans Parish schools.”

The Southern Poverty Law Center has a phone hotline and an email address where families can reach us to report issues they are experiencing in Orleans Parish schools that may be related to the case, commonly known as PB: pbvbrumley@splcenter.org and 504-533 -4121.

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