Decision day

Judge: Douglas County schools must pay private school tuition for student at center of special education lawsuit

PHOTO: Creative Commons / supermac1961

A federal judge ruled Monday in favor of a Douglas County couple who’d sought reimbursement from the Douglas County School District for their son’s education at a private school for students with autism.

In the latest chapter of a landmark special education case, U.S. District Judge Lewis Babcock ordered the 68,000-student district to reimburse the student’s parents for the cost of his placement at the private school as well as attorney fees and litigation costs, according to the Denver Post.

The couple’s attorney estimated the amount the district owed was “in the seven figures,” according to the Post.

The couple said in an email Tuesday morning they were “very pleased” with the district court ruling,

“It is unfortunate this case ever got to this point, frankly,” they wrote. “Our attorney reached out many times over the past 8+ years in an attempt to speak and potentially settle this case out of court, but the school district time and again rejected our overtures to sit down and talk.”

Nearly a decade ago, the couple pulled their fourth-grade son, Endrew, out of his Douglas County elementary school after years with little educational progress. They placed him at a specialized school in Denver — Firefly Autism House — where they saw immediate improvements. Tuition at the school is more than $70,000 a year.

In 2011, they sued the school district in a case known as Endrew F. v. Douglas County School District. Three courts ruled against them before they took their case to the U.S. Supreme Court in 2017.

Monday’s decision comes almost a year after the high court ruled in favor of the couple, saying the Douglas County district had not provided Endrew with a free and appropriate education as mandated by federal law.

While the Supreme Court ruling was hailed as a momentous decision with enormous significance for millions of students with disabilities across the country, it kicked the question of whether the district should repay the family for years of private school back to the lower court. After seven years in the legal system, that question was answered Monday.

The Douglas County School District issued a two-sentence statement in response to the ruling, saying in part, “Earlier today, the District Court issued its ruling in the Endrew F. case. We are in the process of assessing the ruling, along with next steps.”

In their email Tuesday, Endrew’s parents — Joe and Jennifer — said, “Even after the strongly worded unanimous ruling from the U.S. Supreme Court in early 2017, (the district) still stood steadfast in their belief (and made the exact same argument again at the district court last week) that the education they provided – a ‘merely more than de minimis’ education (or barely more than nothing), was good enough.  It’s not good enough, nor has it ever been.”

They added, “Our attorney, Jack Robinson, summed it up perfectly in both our reply brief to the court, and again during the oral argument last week: ‘The school district still just does not get it.’ Hopefully now they do.”

Throughout the case, Jennifer and Joe asked that their last name not be used to protect their family’s privacy.

Read more about Joe and Jennifer’s long journey to the Supreme Court here and their frustration at being portrayed as a school choice success story by U.S. Secretary of Education Betsy Devos here.

call for more

Almost half of Detroit district schools don’t have a gym teacher. Next year, that may change.

Students during PE class at Lyn Knoll Elementary School in 2016 in Aurora, Colorado. (Photo by Helen H. Richardson/The Denver Post)

Since 10-year-old Hezekiah Haynesworth moved to his new school in the Detroit district, he’s always up out of his seat, talking to classmates and getting into trouble.

His mother, Victoria, says he wasn’t always like this. She believes he has nowhere to burn off excess energy because Bagley Elementary doesn’t offer students enough time for gym class or recess.

Bagley Elementary is one of 49 schools in the district without a gym teacher. Out of the 106 schools in the district, only 57 have at least one certified, full-time physical education teacher, according to data obtained by Chalkbeat.

The district employs 68 certified full-time physical education teachers for its student population of 50,875. More than 15,000 Detroit schoolchildren attend a school without a full time physical education teacher.

In Michigan, there are no laws requiring schools to offer recess. As for physical education, schools are required to offer the class, but the amount of time isn’t specified, which means some kids, like Hezekiah, might only go once a month or less.

“He’s had behavior issues, but if he had the gym time there’s different activities he would do to burn off energy,” she said. “They would get that anxiety and fidgetiness out of them.”

Haynesworth might get her wish. Superintendent Nikolai Vitti announced earlier this month that there’s money in the budget to put gym teachers back in schools, along with art and music teachers and guidance counselors next school year, though the budget plan has not yet been approved.

“Not every student is provided an opportunity for physical education or gym” right now, Vitti said at a meeting earlier this month.

The district has almost 200 teacher vacancies, and giving schools money for a gym teacher doesn’t mean a school will be able to hire one.

But Vitti said he has several efforts in the works, like more recruiting trips and better hiring practices, to address the difficulties of finding and bringing in new employees.

Detroit is not the only district that has cut back on physical education teachers in recent years. At a time when schools are heavily judged by how well students perform on math and reading exams, some schools have focused their resources on core subjects, cutting back on the arts and gym and cutting recess to make more time for instruction and test prep. But experts say that approach is short-sighted.

Research on the importance of physical activity in schools has reached a consensus — physical education improves children’s focus and makes them better students.

“Available evidence suggests that mathematics and reading are the academic topics that are most influenced by physical activity,” according to a 2013 federal report.

The link between physical education and improved reading is especially important for the Detroit district. Educators are working in high gear, in part pushed by Vitti, to prepare for the state’s tough new law that will go into effect in 2020, requiring third-graders who don’t read at grade level to be held back.

This year, the Michigan Department of Education has started to include data on physical education in schools into its school scoring system, which allows parents to compare schools. A separate score for physical education might push schools to hire physical education teachers.

Whether the state’s new emphasis on gym class or Vitti’s proposal to place a gym teacher in each district school is enough to put physical activity back in the schools is unclear, but Hezekiah’s mom Victoria desperately hopes it happens.

Hezekiah is given 45 minutes to each lunch, and if he finishes early, he’s allowed to run with the other children who finished early. If he doesn’t eat quickly enough to play, Victoria says she can expect a call about his disruptive behavior.

“I used to think that my son was just a problem — that it was just my problem,” she said. “But it’s a system problem. They don’t have the components they should have in the school.”

See which schools have gym teachers below.

Out of the game

The businessman who went to bat for apprenticeships is out of Colorado’s governor’s race

Democratic gubernatorial candidates Donna Lynne, Noel Ginsburg and Cary Kennedy at a candidate forum hosted by the Colorado Association of School Boards. (Photo by Nic Garcia)

Noel Ginsburg, an advocate for apprenticeships and a critic of Colorado’s teacher effectiveness law, has withdrawn from the Democratic race for governor.

Ginsburg, a businessman who had never run for office before, always faced a tough road to the nomination. He announced Tuesday that he would not continue with the petition-gathering or assembly process after his last place finish in the caucus, where he got 2 percent of the vote.

In an interview with The Denver Post, Ginsburg said, “I don’t believe I have the resources to be fully competitive.”

Just last month, Ginsburg released an education platform that called for the repeal of Colorado’s teacher effectiveness law, the signature legislative achievement of former state Sen. Mike Johnston, also a candidate for governor.

Ginsburg runs CareerWise, an apprenticeship initiative of Gov. John Hickenlooper that allows students to earn money and college credit while getting on-the-job experience starting in high school. His platform called for expanding apprenticeship programs and getting businesses more involved in education.

He also promised to lead a statewide effort to change the Taxpayer’s Bill of Rights to allow the state to retain more revenue and send much of it to schools. He said that schools, not roads, should be the top priority of Colorado’s next governor.

Ginsburg will continue at the head of CareerWise, as well as Intertech Plastics, the company he founded.

Johnston, U.S. Rep. Jared Polis, and Lt. Gov. Donna Lynne have all turned in signatures to place their names on the ballot. Former Treasurer Cary Kennedy, who has the endorsement of two teachers unions, is not gathering signatures and will need at least 30 percent of the vote at the assembly to appear on the ballot. Kennedy finished in first place at the caucus earlier this month.