setting precedent

Inside one Colorado family’s long legal journey to affirm their son’s right to a meaningful education

PHOTO: Creative Commons / supermac1961

Jennifer was sitting on a plane at Denver International Airport last March when she got an email on her phone that made her want to scream with joy.

It was official. She and her husband Joe had won their long-running case against the Douglas County School District with a unanimous decision from the highest court in the land.

The landmark ruling — coming less than three months after Jennifer and Joe watched oral arguments in the U.S. Supreme Court’s chambers in Washington, DC — raised the standard schools must meet in educating students with disabilities.

It had been a decade since the couple’s frustrations first welled up over their older son Endrew’s stalled progress in elementary school and six years since they’d filed suit against their suburban Denver district in a case known as Endrew F. v. Douglas County School District.

Jennifer and Joe recently sat down with Chalkbeat to discuss the case, their first lengthy interview with a news organization. They asked that their last name not be used to preserve their family’s privacy, in keeping with their wishes throughout the court case.

Over the years, there had been reams of paperwork, multiple losses in the lower courts and lots of waiting. But on that Wednesday morning as Jennifer and her younger son were departing for a spring break trip to Texas, a brief email from the family’s lawyer changed everything.

“I kind of started to hyperventilate on the plane,” Jennifer recalled. “My first thought is, ‘Is this for real?’”

As other passengers boarded, reality set in and Jennifer called her husband to share the news. Joe was in the midst of dropping off Endrew, who was 17 at the time, at Firefly Autism House in Denver — the private school he’d attended since Jennifer and Joe had pulled him out of public school at the end of fourth grade.

“I got zero work done that day,” Joe recalled. “I just immediately read the decision twice. I started looking at, ‘What’s the news saying? What’s this mean?’”

What the 16-page decision meant was that the Supreme Court had raised the bar. It had thrown out a lower court standard requiring slightly more than minimal educational progress for special needs students.

The ruling held enormous significance for millions of students with disabilities across the country. The high court, speaking on the issue for the first time in more than 30 years, sent an unequivocal message to schools about the effort they needed to make in educating students with disabilities.

Chief Justice John Roberts, who authored the Supreme Court’s unanimous opinion, left no doubt about the court’s position on the inadequacy of the old standard.

“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” he wrote.

Languishing at school

Jennifer and Joe never set out to sue their school district.

“We didn’t want to pull him out of the school,” Joe said. “We didn’t want to take them to court. We didn’t want to do any of this. But we were pushed into a corner and had to — to get what he was entitled to by law and what he needed.”

As Endrew, who goes by Drew, got to third and then fourth grade, problems at school compounded. He would scream, climb over furniture and other children and sometimes run off school property, according to court documents. He had extreme fears of commonplace things — flies, spills and public restrooms.

For a few years early in Drew’s elementary school career, Jennifer and Joe had paid a private therapist to come into the school and consult with his teachers. But they said the district eventually halted the practice.

Asked why that practice was discontinued, district officials declined to answer. William Trachman, a lawyer for the district, wrote in an email that the district normally does “not discuss the details surrounding pending cases.”

As Drew hit third and fourth grade, anxiety pervaded their lives. The youngster was stressed and defensive. Jennifer would brace herself for the regular phone calls she received from school staff asking her to come in and calm Drew down — and twice to take him home. On the occasions he managed to run away from school, she feared for his safety.

Still, Drew’s Individualized Education Plan or IEP — a plan required for special education students under federal law — didn’t change. It contained the same basic goals and objectives as in previous years.

“… we didn’t get anything different than what he had been offered before in terms of services,” Jennifer said.

“He was being babysat,” Joe said.

The couple, who own a company that sells industrial equipment, tried to blame other factors for Drew’s troubles. They wondered if switching schools after second grade did it. Or the transition from one teacher to two. Perhaps the move to a year-round school schedule — six weeks on and three weeks off — snarled Drew’s sense of continuity.

Eventually, they decided it wasn’t any of those things. He simply wasn’t getting the kind of support he needed.

In May of Drew’s fourth-grade year, Joe and Jennifer withdrew him from public school and enrolled him at Firefly, a 25-minute drive from their Highlands Ranch home. Tuition was about $65,000 a year, which they paid in full. (Starting a couple years ago, their health insurance began covering about half the tuition.)

Jennifer and Joe noticed a dramatic difference in Drew within a month of the school switch.

“We had a different kid,” Joe said. “He’s happy … He’s not afraid of everything at school.”

Try, try again

About six months after Drew moved to Firefly, his parents approached the Douglas County School District about the prospect of re-enrolling him locally, with a new education plan informed by Firefly’s data and program.

“He had this huge growth and we came back and went, ‘Hey, let’s take what they learned. Let’s apply it over here and put Drew back (in public school).’ And their attitude was, ‘No, we’re going to do the same old thing. Here’s the exact same information again.’”

Trachman, the district’s lawyer, refuted that claim, saying in an email the district did craft a new plan for Drew and that the federal district court acknowledged that.

“The court has already noted that the two IEPs were, in fact, different,” he wrote. “For that reason, we can say that any contrary allegation is incorrect.”

Drew stayed at Firefly and in 2011, Jennifer and Joe filed a lawsuit asking to be reimbursed for the cost of Drew’s private school education. An administrative law judge rejected their request, siding with the school district. The same thing happened in federal district court and then the Tenth Circuit Court of Appeals.

After the appeals court loss, Jennifer and Joe set their sights on the U.S. Supreme Court.

Tuition reimbursement was not the main issue anymore. It was about clarifying what it meant to provide a “free and appropriate education” under the 1975 Individuals with Disabilities Education Act.

“The minute it went to the Supreme Court our fight really changed,” said Joe. “It was no longer about getting something for Drew. It was helping define the law … because the law was not clear.”

While the Tenth Circuit court had ruled that “merely more than de minimus” progress — just more than the minimum — was enough for students with disabilities, other appeals courts around the county interpreted the law differently.

For Jennifer, seeking a hearing from the nation’s highest court was a no-brainer.

“It was such an opportunity to hopefully make a difference for six-and-a-half-million kids on IEPs,” she said.

In a brief arguing that the Supreme Court shouldn’t accept the case, lawyers for the Douglas County School District wrote that establishing a new standard could lead to more lawsuits.

They wrote that Jennifer and Joe’s petition to the high court was “at most, a complaint from the borderline of a complex and fact-intensive area of law. … Changing a border will not eliminate borderline cases. If the new border cannot be articulated with greater clarity than the old border, borderline cases will increase.”

The court accepted the case on Sept. 29, 2016, the day after Drew’s 17th birthday.

“We were ecstatic,” Joe said.

The decision

When the Supreme Court’s decision came out March 22, advocates for students with disabilities were thrilled.

Jennifer and Joe’s lawyer, Jack Robinson, called it a “game-changer.”

The ruling soundly rejected the old standard, saying it allowed instruction that aimed so low it was tantamount to sitting idly until students were old enough to drop out.

“The IDEA demands more,” read the opinion, referring to the 1975 law. “It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

It didn’t go quite as far as Jennifer and Joe had hoped, but it was far above the Tenth Circuit standard.

After the ruling came out, Erin Kane, the interim superintendent of the Douglas County School District, sent a letter to district parents. Jennifer and Joe received it, too, since their younger son is still in school there.

“We, in DCSD, welcome the ruling as we do not believe in applying a ‘more than de minimis’ standard to our students — we are dedicated to setting high standards for every one of our students,” she wrote.

Kane also noted “that the Supreme Court Justices did not say that DCSD lost the case. They have simply sent the Endrew F. case back to the lower courts where it will be reconsidered with this new standard in mind.”

When he read the letter, Joe erupted in anger.

“I cannot believe you’re saying these things,” he recalled thinking. “This makes no sense.”

Both parties are still waiting for the final ruling from the lower court.

Ripple effects

His parents describe Drew, who recently turned 18, as a homebody. He’d rather stay in and eat peanut butter and jelly in comfy clothes than dress up for a meal out. He loves cats and his favorite video game is Mario Kart.

In what his parents describe as the kind of quirk that often accompanies autism, he thrills in counting down the days till Pixar releases its movies — titles like Cars 3 and Toy Story 4 — on DVD.

As far as the case that bears his name, Drew doesn’t know a lot about it.

“He’s not to the point where he could ever understand the significance or the process or anything,” said Joe.

The Supreme Court’s decision, and even the pending decision from the lower court, won’t affect Drew’s education. His parents expect he’ll stay at Firefly until he’s 21 because they are happy with the school.

Still, Jennifer and Joe said they feel heartened by the potential ripple effects of the Supreme Court decision.

In fact, even before the ruling last spring, they saw changes they attribute to their case. One day when Jennifer dropped Drew off at Firefly, she saw a Douglas County school bus pull up for the first time. It was a bittersweet sight.

“It made me mad because it felt like a slap in the face,” Jennifer said. “But it also made me feel good for those parents.”

District officials didn’t answer directly when asked by Chalkbeat whether any Douglas County students attend Firefly, but said, “… the school district occasionally places students in private schools to comply with federal law.”

Officials at Firefly, however, confirmed that Douglas County School District is one of several districts that contract with the private school.

Jennifer and Joe believe the Supreme Court’s new standard has sent a strong message to schools and will empower parents of children with disabilities.

“It put the schools on notice,” Joe said. “You have to provide something that means something. … You don’t provide a child a meaningless education. It doesn’t matter whether they are special needs or not.”

While Jennifer and Joe acknowledge that some schools are already providing a good education to students with disabilities, they believe many could do better. Jennifer said they’ve known families who have moved out of state because they can’t get the right services for their kids.

“Most people cannot continue to fight it, and honestly, I think that’s what most school districts are hoping for,” she said.

Jennifer and Joe said they kept going because they had the money, the stubborn streak and they wanted to do the right thing for Drew and other kids like him.

“We lost a lot of little battles, but we won the war,” Joe said.

Jennifer laughs remembering how things unfolded on the airplane the day she got the news. Her younger son, who was 11 at the time, asked if she was crying.

“Yes, we just won,” she told him.

“I think you’re overreacting,” he said.

“No,” she said, “I think this is exactly how I’m supposed to react.’”

Future of Schools

How this Indiana district realized counselors weren’t spending enough time counseling

PHOTO: Denver Post file

About a year ago, the counselors in the Beech Grove school district made a discovery: They were spending less than half of their time on counseling.

Instead of meeting with students one-on-one or in small groups, they were spending most of their days on routine tasks, such as overseeing lunch, proctoring exams, and filling in for secretaries.

When they realized how much time those other tasks were taking away from counseling work, it was “an eye-opener for everyone,” said Paige Anderson, the district college and career coordinator.

The counselors began tracking their time as part of a planning grant from the Lilly Endowment, a prominent Indianapolis-based philanthropy. In 2016, the foundation launched Comprehensive Counseling Initiative for Indiana K-12 Students, a $49 million effort to improve counseling in Indiana. Experts say meaningful counseling can help schools support students as they navigate problems both at home and in the classroom. (The Lilly Endowment also supports Chalkbeat. Learn more about our funding here.)

What Beech Grove staff members learned during their planning process is already changing their approach to counseling, said Trudi Wolfe, a counselor at Central Elementary School, who was instrumental in applying for the Lilly grants. Now, administrators are taking on more tasks like proctoring tests. And one intermediate school hired a new counselor.

“The schools will take counselors and meet the needs of the school,” Wolfe said. “Part of the process is helping administrators understand, school counselors need to be doing school counseling.”

Last month, the endowment announced its second round of implementation grants, which awarded about $12.2 million to 39 schools and districts. Beech Grove will receive $259,727 to redesign its counseling program to focus on the social and emotional needs of students, with the largest chunk of that money going to staff training.

The aim is to develop a strategy for handling the trauma that students face at home, said Wolfe. Over the past 10 years, the number of students in the district who are poor enough to get subsidized meals has risen by about 25 percentage points to 72 percent of students.

Beech Grove has also been affected by the opioid crisis, said Wolfe. “We have kids living with parents who are dependent on drugs, and they are not meeting the needs of their children.”

Those growing challenges mean that it is essential for counselors to have a plan for helping students instead of just meeting the needs of each day, Wolfe said.

Counseling is an investment that can have long-term benefits. After Colorado began an initiative to hire more school counselors, participating schools had higher graduation rates, increased enrollment in career-and-technical programs, and more students taking college-level courses. A 2016 report found that by keeping students from dropping out, the Colorado program saved taxpayers more than $319 million.

But in Indiana schools, counselors often have large caseloads. In 2014-2015, Indiana had an average of 543 students per counselor, above the national average and significantly higher than the American School Counselor Association recommendation of no more than 250 students per counselor.

Hiring more counselors alone is not enough to create stronger school counseling programs, said Tim Poynton, an associate professor at the University of Massachusetts Boston who studies counseling. They also have to spend their time on meaningful counseling work.

“You need more school counselors. That’s necessary, but it’s also not sufficient,” said Poynton. “If you hire more school counselors, and you have them doing lunch duty and things that basically you don’t need a master’s degree in school counseling to do, then you’re not going to see those important metrics move.”

When schools were applying for the Lilly Endowment grants, many reported that counselors were focused on urgent social and emotional challenges and struggled to help students plan for the future, according to the endowment.

Those challenges can have ripple effects, making it harder for school staff to tackle long-term goals such as ensuring that students sign up and meet the requirements for the state’s scholarship program, 21st Century Scholars.

If counseling is done well, most students will be prepared to go to college, even if they do not seem interested when they are in high school, Poynton said. But when counselors are dealing with urgent problems, they have significantly less time to devote to college preparation, he said.

“In urban schools, school counselors are often focused on getting students to school and meeting their immediate needs,” Poynton said. “In the higher-performing suburban schools, where the students and families don’t have those same kind of issues or concerns, the emphasis is almost entirely on the college-going process.”

In a statement from the endowment, Vice President for Education Sara B. Cobb said the response to the Lilly grants shows increased awareness of the crucial need for counseling programs.

“We are impressed with how school leaders have engaged a wide variety of community partners to assess the academic, college, career and social and emotional needs of their students, and respond to them,” Cobb said.

The Lilly grants are going to a broad array of schools, and they are using the money in different ways. At Damar Charter Academy, which educates students with special needs, few students earn traditional diplomas or have good options for higher education. That’s why school staff plan to use the $100,000 counseling grant they received to build relationships with employers and create training programs for skills such as small engine repair, automotive maintenance, landscaping, and culinary arts, said Julie Gurulé, director of student services.

“If we can commit to getting them the skills they need while they are with us,” she said, “they will be able to go out and gain meaningful employment, and … lead the kind of lives that we all want to.”

These are the districts and schools in Marion County that received counseling grants. (Find the full list here.)

  • Beech Grove City Schools $259,727
  • Damar Charter School $100,000
  • Metropolitan School District of Decatur Township $671,300
  • Purdue Polytechnic Indianapolis High School $100,000

Delayed decision

Officials promised to update a Giuliani-era agreement between the NYPD and city schools almost a year ago. So where is it?

PHOTO: Alex Zimmerman
A school safety agent at Staten Island's New Dorp High School.

Last October, city officials said they were on the cusp of announcing changes in the way the New York Police Department interacts with schools — an overhaul that began more than three years ago and sparked months of negotiations with advocacy groups.

But nearly 10 months later, the city has not announced any revisions to the “memorandum of understanding” that governs police involvement with school security, leaving in place a nearly two-decade-old agreement that has not been altered since Rudy Giuliani was mayor and “zero tolerance” discipline policies were in vogue.

Now, police and education officials say revisions won’t be made public until this fall. That timeline has infuriated advocates who said they made progress with senior city officials but have recently been kept in the dark and fear their recommendations are being ignored.

“Here we are three years later without any explanation from the administration,” said Kesi Foster, an organizer with Make the Road New York and the Urban Youth Collaborative who serves on a mayoral task force charged with revising the agreement. “It’s extremely frustrating and disheartening.”

As Mayor Bill de Blasio has worked to overhaul school discipline policies, which have reduced suspensions and student arrests, advocates say the outdated MOU has become a roadblock.

The 1998 agreement officially gives the city’s police department authority over school safety agents, a force that rivals Houston’s entire police department in size. The agreement was controversial at the time, with some city officials saying the presence of police officials made student misbehavior more likely to end in arrests.

Mark Cannizzaro, head of the city’s principals union who was a school administrator in the 1990s, said it was not unheard of for principals to consider calling the police for incidents as minor as shoving. “There was, at one point, a zero tolerance approach that didn’t make sense,” he said.

The current memorandum is a reflection of that era, advocates say, and is one of the reasons students of color are disproportionately likely to wind up in the criminal justice system instead of the principal’s office. It was supposed to be updated every four years, but has still never been revised.

De Blasio seemed to agree that the memorandum needed to be reformed, and convened a group of advocates and senior city officials who recommended changes. Among the group’s recommendations, released in 2016, were giving school leaders the lead role in addressing student misbehavior, making it more difficult for school safety agents to place students in handcuffs, and ensuring students are informed of their rights before they’re questioned.

Johanna Miller, the advocacy director of the New York Civil Liberties Union, said senior officials — including Mark Rampersant, the education department’s director of security, and Brian Conroy, the chief of the police department’s school safety division — participated in the task force and seemed receptive to changes. The group agreed there should be limits to the type of offenses that could trigger police involvement, multiple participants said, excluding offenses such as smoking cigarettes, cutting class, and certain instances of insubordination.

But when the city presented the group with a draft agreement, many of their recommendations had vanished, according to people who were present during the meetings, some of whom requested anonymity because the city required that participants sign nondisclosure agreements.

“They basically eliminated all of the major changes that we made,” Miller said, adding that the group requested another opportunity to change the agreement more than a year ago. “And that was the last we heard of it.”

City officials would not comment on why the process has been delayed or why key recommendations never made it into the draft agreement. Some task force members said they believed education and police department lawyers, who had not participated in the group’s discussions, played a role in stripping the draft agreement of the most important changes.

An education department spokeswoman acknowledged in an email that “agency lawyers have been involved in order to ensure the MOU is aligned with existing local, state, and federal laws and in the best interest of students and families,” but did not comment further on why certain changes were not included.

Asked why task force members were required to sign nondisclosure agreements, the official said the decision was made “To protect the confidentiality of any shared student data and remain within (The Family Educational Rights and Privacy Act) compliance.”

The task force still meets quarterly, although several of its members say they have not received updates and did not know the city planned to release an updated memorandum this fall.

“The DOE and NYPD have been working in close partnership to finalize updates to the MOU and ensure that the changes are done correctly in the best interest of students and families,” education department spokeswoman Miranda Barbot wrote in an email.

Cannizzaro, the principals union chief, said he has not been informed about potential changes to the agreement, adding that school leaders should have discretion in how misconduct is handled and noted the police play an important role in school safety. “We certainly appreciate their presence — we need their presence,” he said.

Some members of the task force wondered whether the selection of a new schools chief has delayed the process, and at their most recent meeting in May, schools Chancellor Richard Carranza stopped by. “He said something to the extent of, he knew it was an issue and was going to put eyes on it,” said Nancy Ginsburg, a lawyer at the Legal Aid Society and a member of the task force.

Ginsburg said she appreciates that changes take time, but also stressed that the current memorandum can make it difficult to hold officials accountable since the agreement is so vague.

“It’s impossible to hold the agencies to anything if there are no rules,” she said.