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.’”

Indiana's 2019 legislative session

Indiana’s push to raise teacher pay is creating some unlikely allies

PHOTO: Denver Post file
Middle school math teacher Eliana Moore, left, gives Armando Flynn, 13, some extra attention to help with a lesson in algebra.

It’s not every day that the state’s teachers union, Republican leaders, and education advocacy groups find themselves working toward the same goal. But this year, as Indiana puts teacher pay at the forefront of its legislative priorities, there seems to be an all-hands-on-deck approach to make it happen — and that means some unlikely allies.

During Tuesday’s ceremonial first day of the legislative session, House Speaker Brian Bosma announced in a speech to fellow lawmakers that Republican Reps. Bob Behning and Todd Huston — as well as representatives from the Indiana State Teachers Association, advocacy group Stand for Children, and the educator organization Teach Plus — were working on a plan to ensure teacher raises are part of the state’s next two-year budget.

“The most important profession for the future is those that serve in our classrooms,” Bosma said, adding that although the state has made increases over the past few years in school funding, pay for teachers has not kept pace even as administrative spending has increased.

It’s an unusual partnership because the teachers union has frequently had tension with Republicans who favor school choice and expanding the state’s charter school and private school voucher programs. The union, which staunchly advocates for traditional public schools, has also clashed over charter partnerships with districts, a model that Teach Plus and Stand for Children have supported, even though they aren’t inherently partisan.

Why now? The combination of local districts struggling to hire teachers and keep them in the classroom and a larger national conversation about teacher compensation has put raising teacher pay in the spotlight, both in Indiana and across the country. Last week, teachers in Portage, Indiana, picketed to push for larger raises as they negotiate a new contract.

“It’s been a crisis that’s been coming — we’ve seen it coming … and finally people are starting to connect the dots between compensation and retention,” said Teresa Meredith, president of ISTA, the state’s largest teachers union. “We finally had to take a step back and say, obviously fighting each other is not getting anything done.”

Meredith said state-driven policies that have led to more testing and dialed up the need for schools to compete for students naturally has resulted in increased spending on staff members who aren’t in the classroom. Now, she said, lawmakers are seeing how that’s affecting school budgets, and, in turn, making it difficult to attract and retain teachers.

The desire to figure out ways to keep teachers in the classroom also brought Teach Plus to the table, said Rachel Hathaway, program manager for the national organization’s Indiana arm. Teach Plus helps train teachers to be policy advocates.

“There is a moment happening this year that can bring folks together to really elevate the profession and support teachers to make sure they are able to stay in the classroom,” Hathaway said. Teach Plus has “a history of knowing the importance of teacher recruitment and retention and ensuring we have high-quality teachers in front of our students.”

And it’s that impact at the classroom level, Stand for Children Indiana executive director Justin Ohlemiller said, that speaks to his group’s mission. Stand is an organization that aims to help parents learn how to advocate for their children in schools, but the group has been criticized, such as during the recent Indianapolis Public Schools board election, because they do not have to disclose their spending.

“At the end of the day, data shows one of the most important single factors in children’s education is the educator at the front of the room,” Ohlemiller said.

Indiana’s plans for how to boost teacher salaries are expected to come into sharper focus over the next few weeks. But Bosma cautioned again Tuesday that there might not be much extra money to work with, casting some doubt on the state’s ability to raise pay enough to make a meaningful difference for educators across the state.

“We’re going to have more needs, more critical needs, than we have available dollars,” Bosma said.

Bosma wouldn’t offer details about how much money House Republicans would add for teacher pay, but said after funding obligations to the Department of Child Services, that state would have an optimistic $50 million per year in new revenue for other funding requests. If teacher pay were to receive just a piece of that, it would be far less than the $81 million per year or so that Senate Democrats have called for — which they figure would amount to a 5 percent raise for teachers and counselors over the next two years.

And if curbing teacher shortages is as much of a priority as the state’s majority is now pushing, state Democrat leaders say, Indiana needs to prove that come January by making it a meaningful part of the budget.

“We have the resources,” Sen. Tim Lanane, a Democrat from Anderson, said on Friday when his caucus presented its 2019 priorities. “We can make that sacrifice to make sure our teachers know we respect and appreciate them.”

cry for help

View from the child care trenches: ‘Those of us cleaning the poop are not making it’

PHOTO: Ann Schimke | Chalkbeat

At the end of three hours of briefings Monday on advancing care for Illinois’ tiniest residents, an on-the-ground provider’s 3-minute plea shook awake a gathering of the state’s top early childhood leaders and reminded them why they were there.

“We are in a crisis and unable to get help,” said Holtz, who in seven years has cycled through 147 staff members at her two day care centers in south central Effingham.

Turnover in that time among her 35 employees has been enough to staff the two centers more than four times over.

Speaking to the early learning council that directs how the state funds services for children from birth to age 5, Holtz said half of those departing sought better-paying jobs in other fields. Others headed to public school districts that pay better. Some she let go.

“Down here in the trenches, those of us who are cleaning the poop and plunging the toilets — we’re the ones who are not making it,” said Holtz, ticking off how well-intentioned Illinois directives make it tough to run a childcare business. She listed state policies like raising degree requirements for jobs that pay $8.50 to $10.25 an hour in her area, an endless stream of “health and safety” trainings, and lead and radon tests that cost her $1,000 apiece.

In a meeting that focused mainly on future ambitions, Holtz redirected attention to a present hazard: a critical shortage of qualified staffers to work in infant centers, daycare programs, and community-based preschools.  

The issue threatens to undercut any sort of universal pre-K program, which governor-elect J.B. Pritzker pledged to pursue as a candidate.

Preschool expert GG Weisenfeld said Illinois meets many established early learning benchmarks. But the state lags in salary parity. Other shortcomings: a revolving door of the state’s top leadership in early learning and a lack of full-day programs.   

“For preschools housed within public schools, those teachers have salary parity with other teachers,” said Weisenfeld, the lead author of a new state preschool policy scan from the National Institute for Early Education Research. “Unfortunately, when programs are housed in community-based centers, those teachers do not.”

But the state’s powerful Early Learning Council barely touched on that topic at its quarterly meeting Monday.

Holtz, one of only two people to address the council, said she drove several hours from Effingham for her three minutes at the mic. She said she supports the state’s push for better quality, but that effort doesn’t pencil out for her and other caregivers. One state subsidized program for low-income families reimburses her only $23 per day per child. That’s not enough to pay a lead teacher with a bachelor’s degree.

“When we do hire them, they uniformly all leave for better pay and benefits — and less stress. The stress is up there with the reasons for leaving, along with pay.”

As Illinois focuses on raising the quality of early learning throughout the state by requiring bachelor’s degrees for lead teachers in preschools, it faces a conundrum: Teachers with college degrees want to and can earn more than minimum wage elsewhere. (A 2017 state report said the median hourly wage for a licensed childcare center teacher was $12.50. Assistant teachers and infant caregivers generally made less.)

Jill Andrews, another downstate center director who heads up the Southern Illinois Child Care Assistance Task Force and made the trek with Holtz, handed out folders with her own set of recommendations.

Among them: raising state reimbursement rates for publicly funded child care programs, helping child care providers qualify for state health insurance, and offering community college credit as an incentive for workers to pursue training.