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.’”

awards season

For the first time in two decades, New York’s Teacher of the Year hails from New York City — and West Africa

PHOTO: New York State Education Department
Bronx International High School teacher Alhassan Susso, center, is New York State's 2019 Teacher of the Year.

An immigrant from West Africa who teaches social studies to immigrant students in the Bronx is New York State’s newest Teacher of the Year.

Alhassan Susso, who works at International Community High School in Mott Haven, received the award Tuesday, becoming the first New York City teacher to do so since 1998.

As the state’s Teacher of the Year, Susso will travel the state to work with local educators — and will represent New York in the national competition at a time when federal authorities are aggressively seeking to limit immigration.

A decorated teacher with significant vision impairment since childhood, Susso came to New York from Gambia at 16 and had a rocky experience at his upstate high school, which he chronicled in an autobiography he published in 2016. Assuming that he would struggle academically because he was an immigrant, even though English is the official language of Gambia, his teachers assigned him to a remedial reading class. There, he found a compassionate teacher who was attentive to the diverse needs of her students, who came from all over the world.

Now, Susso is playing that role at his school. International Community High School, part of the Internationals Network for new immigrants, has a special program for students who did not receive a formal education before coming to the United States.

“Alhassan Susso exemplifies the dedication and passion of our 79,000 New York City teachers,” city Schools Chancellor Richard Carranza said in a statement. “Using the obstacles he’s overcome and lessons he’s learned in his own life, Alhassan has changed the trajectory of students’ lives and helped them pursue their dreams.”

New York City teachers make up nearly 40 percent of the state’s teaching force but have won the Teacher of the Year honor only six times since 1965, the last in 1998. This year’s winner had a strong chance of ending the two-decade shutout: Two of the three finalists teach in the Bronx. In addition to Susso, Frederick Douglass Academy III chemistry teacher William Green was up for the award.

regents roundup

Regents support a new way of evaluating charter schools and soften penalties for schools with high opt-out rates

PHOTO: Monica Disare
Chancellor Betty Rosa, center, at a recent Board of Regents meeting.

New York’s top education policymakers tentatively approved new rules Monday on two hot-button issues: the penalties for districts and schools where many students opt out of state tests — and how nearly 100 charter schools across the state will be evaluated.

Here’s what you need to know about the new policies that the state’s Board of Regents set in motion.

Potential penalties for high opt-out rates were softened

After criticism from activists and parents within the opt-out movement and pushback from the state teachers union, the Regents walked back some of the consequences schools and districts can face when students refuse to take state exams.

Among the most significant changes, which state officials first floated last week, is that districts with high opt-out rates will not be required to use a portion of their federal funding to increase their testing rates.

“I do not ever want to be the person who takes money away from children,” State Education Commissioner MaryEllen Elia said.

The regulations are part of the state’s plan under the federal Every Student Succeeds Act and stem from a federal mandate that 95 percent of students take the state’s annual reading and math exams.

The Regents tweaked other rules requiring schools to create improvement plans if they fall below the 95 percent threshold. Schools with average or higher test scores will not have to come up with those plans.

Still, some parents who support the opt-out movement and who attended Monday’s meeting said the changes don’t go far enough and that schools with lower test scores should also be exempt from coming up with plans to boost participation rates.

“There’s still so much left to be addressed,” said Kemala Karmen, a New York City public school parent who attended the meeting.

The new regulations will likely not have a major effect in New York City, where opt-out rates have remained relatively low. Although New York State has been the epicenter of the test-boycott movement — with roughly one in five students refusing to take the tests, according to the most recent data — less than 4 percent of the city’s students declined to take them.

The Regents unanimously approved the changes, although their vote is technically preliminary. The tweaks will still be subject to a 30-day public comment period and will likely be brought to a final vote in December.

New criteria for evaluating charter schools

The Regents also narrowly approved a new framework for evaluating the roughly 100 charter schools that the board oversees across the state, 63 of which are in New York City.

The new framework is meant to bring charter schools in line with how the state judges district-run schools. Under the new federal education law, the Regents have moved away from emphasizing test scores as the key indicator of a school’s success.

In keeping with that shift, the new charter framework will require schools to have policies covering chronic absenteeism, out-of-school suspension rates, and other measures of school culture to help decide whether they are successful enough to remain open.

And while the new framework does not spell out specific rates of chronic absenteeism a school must fall below, for example, it does explicitly add those policies to the mix of factors the Regents consider. (Officials said that test scores and graduation rates would still remain among the most important factors in evaluating charter schools.)

At Monday’s meeting, discussion of the charter framework prompted broad complaints about the charter sector from some Regents. The state’s framework for evaluating charters was last updated in 2015; the board has added several new members and a new chancellor since then.

The current board has repeatedly sent mixed messages about the sector, approving large batches of new charters while also rejecting others and raising questions about whether the schools serve a fair share of high-need students.

“We’re giving money away from our public schools to charters,” Regent Kathy Cashin said, emphasizing that she believes the state should more deeply probe when students leave charter schools and survey families to find out why.

Charters receive some freedom from rules governing most district-run schools, but in exchange the schools are expected to meet certain performance benchmarks or else face closure.

State officials said the new framework does not include new standards for how New York judges enrollment and retention. Under the current rules, schools must enroll a similar number of students with disabilities, English learners, and low-income students as other nearby district schools. If they don’t, they must show that they’re making progress toward that goal.

Ultimately, the new framework was approved eight to five in a preliminary vote and will be brought back to the full board for approval on Tuesday.