What’s All the Hubbub About California’s Special Ed Consent Decree?

There appears to be a lot of confusion and misunderstanding about the recent 9th Circuit Court of Appeals decision regarding the State of California and its poor enforcement of special education law. Today’s post seeks to provide clarity as to what the 9th Circuit determined and what it means for families of students with special needs in California.

While it is the function of the media to serve as an intermediary between sources of news and the public to sum things up in an unbiased manner, because our world is so full of fake news and biased reporting, these days, we believe the first place to start is to put the actual decision and related consent decree before you first so you can see the actual outcomes rather than just our interpretations of them, so here they are:

In 1999, a lawsuit was brought against Ravenswood City School District (Ravenswood) for violations of special education law and the California Department of Education (CDE) was named as a party for failing to make sure Ravenswood abided by the law. This was unusual because most special education suits just name the local education agency, in this instance Ravenswood, that allegedly violated students rights under the law. But, this case was different in that it also asserted that CDE had failed in its affirmative duty to monitor and enforce special education law such that Ravenswood was able to get away with breaking it.

The argument was that if CDE had properly implemented the system of monitoring that all States must provide in order to receive federal special education dollars as required by the Individuals with Disabilities Education Act (IDEA), Ravenswood would not have been able to violate students’ rights in the first place. In fact, the whole point of the IDEA mandating that States provide regulatory monitoring and proactive enforcement is to prevent the need for parents to have to sue their local school districts in the first place. Raising children with special needs is hard enough without parents having to effectively serve as law enforcement officials on behalf of their children in the absence of actual law enforcement from their States, as the theory goes.

After a great deal of litigation and finagling, the parties arrived at an agreement that was to be overseen and monitored by the United States District Court, Northern District of California in the form of a consent decree. In 2003, the consent decree was amended and has remained unchanged since that time.

The terms of the revised consent decree, which CDE entered into voluntarily on behalf of the entire State of California, became enforceable under the oversight of the Northern District Court, and included the requirement that CDE come up with a plan of action that described how it would improve its proactive monitoring of local education agencies with respect to special education compliance. Since that time, no such plan of action has been forthcoming and, based on our experiences and knowledge, California has continued to perform abysmally with respect to enforcing special education law among its school districts and charter schools.

While the original case was specific to CDE’s monitoring of Ravenswood, CDE’s system of monitoring is a statewide one and CDE approached it as such in speaking to how it would address the specific matter of Ravenswood’s compliance in finagling with the Court and the other parties to come up with the terms of the consent decree. In other words, in order for CDE to monitor Ravenswood, it wasn’t going to create a separate monitoring system for Ravenswood but, rather, monitor it under the auspices of its statewide monitoring system, which was logical. By CDE putting things in this context when it voluntarily entered into the consent decree agreement, the Northern District Court adopted CDE’s approach in the context of enforcing the consent decree.

Therefore, the action plan called for by the consent decree had to speak to the entire statewide system of monitoring and not just specifically to how CDE would monitor Ravenswood. The remedy became improvement and changes to the whole statewide monitoring system, which was to be described in the action plan that has yet to be forthcoming.

The original plaintiffs the the Ravenswood case turned to the Northern District Court after years had passed without the action plan being produced by CDE to see the consent decree enforced. This was not an action brought under the IDEA specifically, but an action to enforce the terms of the consent decree into which CDE had voluntarily entered. The District Court affirmed the binding nature of the consent decree and ordered CDE to produce the action plan. In response, CDE filed an appeal with the 9th Circuit, which affirmed the District Court’s order.

And, now here we are. Parents of children with special needs in California are all too painfully aware of the consequences of CDE’s failures to ensure their local education agencies abide by the law. The quality of enforcement from CDE’s Procedural Safeguards Referral Service (PSRS), which exists to investigate allegations made by people against local education agencies of procedural noncompliance, has been questionable for years, as has the quality of enforcement of the substantive requirements of the IDEA by California’s Office of Administrative Hearings (OAH).

Add to that the fact that California has among the poorest student outcomes in the country for special education students, and it’s not that hard to conclude that CDE has utterly failed to abide by the requirements of the IDEA that it enforce special education law as a condition of receiving its federal special education funding. This means that the entire State’s federal special education funding is at risk, which jeopardizes these vulnerable students even further.

What makes this situation even more challenging is the general public’s lack of understanding of children with special needs and the degree to which investing in their educations during childhood prevents lifelong public expenditures on them as adults. While there will always be kids with special needs who will need publicly funded supports for the rest of their lives, those costs can be minimized by increasing these students’ respective levels of independence. Other students with special needs, with appropriate supports, grow up to become gainfully employed, taxpaying members of their communities who need zero publicly funded services in adulthood.

There is no fiscal argument against investing in special education. Failing to invest in special education only results in greater expenditures in adult services, including institutionalization and incarceration costs. In the absence of appropriate adult programming, many individuals with developmental delays, learning disabilities, and mental health disorders end up in our prisons or on our streets. This is not an acceptable outcome, particularly when so much of it could be prevented with early intervention.

What is implied in all of this is that CDE’s failure to properly monitor Ravenswood as identified in the original case was the outcome of a systemic failure of CDE’s statewide system of monitoring and enforcement. Our experiences and those of our colleagues seem to bear this out. Because CDE is now required to create an action plan that describes how it will reform its statewide monitoring system, and the potential of a reformed monitoring system is improved outcomes for special education students throughout the State, there is a lot more at stake here than just what happens in Ravenswood.

This situation is attention worthy to everyone – parents, educators, and taxpayers alike. There is no point in the public investing in an education system that does not abide by its mandated duties. However, there is plenty of evidence that moving to a privatized education system would be even more detrimental to children, including those with disabilities, who are marginalized and vulnerable to the School to Prison Pipeline. What will come of all of this, particularly given the dramatic changes happening at the federal level is yet to be determined. What is clear is that all of us have a vested interest in protecting children, families, educators, and communities from poor public policy and public agency noncompliance with the law.

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