State special education monitoring errors could impact federal consent decree over New Orleans schools

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Marta Jewson / The Lens

Cypress Academy, a school designed for students with disabilities that attracted such high enrollment it had to close, was accidentally selected for state monitoring under the 2015 consent decree covering special education.

Court-appointed monitors overseeing special education services in New Orleans have been reviewing the wrong schools. The problem may force the extension of a four-year-old federal consent decree negotiated to settle a 2010 lawsuit that charged that the city’s charter schools were admitting too few special-needs students and failing to provide proper services to the ones they did enroll. 

A June case record in the long-running federal class-action lawsuit identified “potential errors” with the monitoring process. And this week, a state Department of Education spokeswoman confirmed what those errors were. 

The issue calls into question the past two years of supervision, during which state Department of Education employees and federally appointed monitors have recorded progress in improving their oversight of special education services. Over that period, the defendants in the suit — the Orleans Parish School Board and the state Department of Education — were found to have achieved “substantial compliance” with the consent decree. They are now nearing a point at which federal Judge Jay Zainey — who is presiding over the case — could lift the decree, ending court and monitor supervision. 

Whether that happens may now depend on how serious the monitors believe the problem was. 

In a June status conference, Zainey told the monitors to draft a report on what happened and what can be done to fix it, according to a minute entry. Zainey said the monitors’ next report should not be delayed because of the school selection issue. But, he added, the monitors may decide to partially withhold their compliance determinations pending additional school reviews. 

“We don’t exactly know the scope or nature of the errors in particular,” said Neil Ranu, a civil rights attorney with the Southern Poverty Law Center who represents the plaintiff class. “We’re waiting for that report to understand them, but we’re concerned about their effect on the monitoring.” 

The Louisiana Department of Education was responsible for selecting the schools for targeted monitoring. Department employees then review individual student files, interview staff and conduct site visits at the targeted schools. They then turn over to their reports to the monitoring group — Fluency Plus, LLC — for compliance review. 

The state department admits choosing the wrong schools for review of “related services” — meaning the actual special education services the schools provide once they enroll students — during the 2017-2018 and 2018-2019 school years. That’s one of the four areas covered by the consent decree. (The other monitored areas are whether schools are identifying and evaluating students for special education services, whether they’re disciplining special education students appropriately and the rate at which students with disabilities are re-enrolling at schools.)

Under the terms of the consent decree, the department was supposed to choose the schools whose records showed were spending the least time, on average, providing special education services to students. Instead, they selected the ones that spent the most time on those services. 

“The question is how did these errors affect the accuracy of the reliability and the effectiveness of the monitoring process,” Ranu said. “Whether they were clerical or not is irrelevant. We need to look at the impact.”

Ranu represents the plaintiff class, which includes present and future New Orleans students with disabilities. The consent decree stemmed from a suit filed by ten families who sued over special education concerns in New Orleans in 2010, as the number of charter schools steadily increased. 

The lawsuit alleged that the state — which was responsible at the time for the majority of the city’s charter schools through the Recovery School District — had failed to ensure that the schools, which are semi-autonomous, were properly enrolling and educating students with disabilities. The Orleans Parish School Board was added to the suit in 2012. 

In 2015, the state, Orleans Parish School Board and the plaintiffs agreed to a settlement which ordered an independent monitor to review annual state targeted and random monitoring of New Orleans schools for compliance with federal special education law, targeting schools deemed most likely to be falling short of those goals. 

The debate over the gravity of the selection mistakes is likely to be a big one. That’s because with one more substantial compliance finding from the monitor — for the 2018-2019 school year —  the state could be released from the federal consent decree. 

For the last two years, the independent monitors have concluded the state reached “substantial compliance” with the judgment. The monitors reports have generally been released in the summer or fall. If the state is again found to have reached substantial compliance, it can be released

State Department of Education spokeswoman Sydni Dunn said once the errors were found, officials remedied them by adding the correct schools to the monitoring list. 

“As soon as noted, LDOE reported this information to the court and was granted the authority by the judge to add the schools inadvertently swapped to the current year monitoring,” Dunn wrote in an email. “In essence, this means LDOE will have monitored more schools than required by the consent decree rather than fewer.”

The state also contends the mistake doesn’t affect the quality of its work.

“Consequently, the inadvertent monitoring ranking error neither limits the integrity of our monitoring work nor has any impact on the LDOE’s current standing of consecutive years of compliance,” Dunn wrote.

But the problem and the state’s solution don’t sit well with Ranu, who said the SPLC doesn’t know the full extent of the errors. 

“Of course the error will impact LDOE’s compliance. There is no provision in the consent judgment that permits the sort of ‘swapping’ that LDOE is suggesting,” Ranu said. “Either defendants complied with the consent judgment or they didn’t. It’s that simple.”

The fact that the problem occurred over two years is also troubling, Ranu said. 

“The consent judgement is a time-oriented process. The monitoring process is one that occurs year after year after year,” Ranu said. “We don’t necessarily believe that monitoring schools now can make up for monitoring wrong schools in past years.”

The problem 

On June 20, according to a minute entry in the case file, Zainey asked the independent monitor “to provide an update on the issue of potential errors with the data sets used by LDOE to select schools for targeted monitoring in the fall of 2017 and/or fall of 2018.”

Zainey asked for a short narrative of what occurred and a solution. 

Dunn told The Lens the problem was isolated to “related services,” one of four specific areas the consent decree mandates the state must evaluate to target schools for monitoring. 

Related services include an array of provisions that students with special education needs are entitled to under federal law. Under federal law, students have a right to “free appropriate public education.” That means that schools must provide what students need to progress in the curriculum. For some students with disabilities that can be minor interventions, such as speech therapy once a week. For others, it can be several services multiple times a week. Those services can include physical therapy, speech therapy, occupational therapy, special transportation and tailored physical education. 

The consent judgment requires the state to calculate an annual “service provision rate” for “related services” for each local education agency. In New Orleans, most charter schools and charter networks are legally considered distinct education agencies. 

The state was supposed to select the three schools with the lowest rates of service provision for targeted monitoring, but in 2017 and 2018, it chose schools with the highest. That means the state was monitoring the schools with the highest average number of service minutes per student written into students’ records. 

“Schools showing the highest percentages of related services rather than the lowest percentage of related services were monitored. This was an issue of monitoring selection, not data quality,” Dunn said. 

Ranu said selecting the correct schools to monitor is especially important when it comes to these services.

“Counseling, speech-language therapy, and transportation assistance are all examples of related services,” he said. “It’s not hard to see that in a decentralized school system like ours there could be major differences in how schools provide these services. School autonomy is built into our system.”

Ranu said the source of the mistake is not as important as measuring the overall impact of it. 

“The problem here is that the wrong schools were monitored and what does that mean for the monitoring process,” he said. 

Ranu said his team is set to meet with the state next week. 

Meanwhile, NOLA Public Schools has told school leaders additional schools will be monitored this year due to the problem. 

Substantial compliance

Based on a defined set of standards, the independent monitor finds the state to either be “noncompliant” or have “substantial compliance” when it comes to each area of monitoring included in the judgment. 

Monitoring the wrong schools poses a problem for reaching that standard, Ranu said.

“If LDOE isn’t picking the right schools for monitoring, we’re not getting an accurate picture of our system,” he wrote in an email. “And in this case, the situation is potentially worse. LDOE selected schools that would skew our perspective the most.”

Documents show the SPLC already had concerns about the definition of substantial compliance. A court order issued in July 2018 — well before the school selection problem surfaced — shows the group had challenged the definition of compliance. 

Even as the department and district have been rated substantially compliant, the group argued, some schools have continued to be placed under corrective action plans due to problems with their special education services. Several schools were cited by the district last summer after the state identified problems during targeted monitoring.  

Two of them — Encore Academy and James M. Singleton Charter School — failed a March review by the state. Now, they are under intensive corrective action plans and will remain so for one year, according to the state and recent district warnings. 

“So there is this question that we have or that we’ve raised, can the defendants be in compliance with the agreement if there are corrective action plans being issued for schools? Because those CAPs are evidence of non-compliance” with federal special education law, Ranu said. 

But Zainey disagreed with that reasoning, according to the July order. The consent decree, he said, covers actions by the state and the district to identify and correct problems, and issuing corrective action plans to schools is part of that process. 

“The Consent Judgment itself defines the term ‘substantial compliance’ and it does so not in accordance with an individual LEA’s compliance with the IDEA but rather with the Defendants’ compliance with the Consent Judgment itself,” Zainey wrote. 

Special education in a decentralized district

New Orleans is no stranger to struggling with students who require special education services. The all-charter district, composed of charter networks and single-site charters, do not have the bureaucratic backing of a centralized district when it comes to providing special education resources. Charter schools must accept all students regardless of their special education needs. 

The Lens has reported on a number of special education problems over the past year. A student with Down syndrome and bipolar disorder struggled to find a high school after losing access to a specialized room when a new charter school took over the building he was in. A parent at another school said his son was improperly excluded from aftercare due to his special education needs. 

Another student and mother told The Lens her son was improperly sent home from school for five months. Students with disabilities aren’t supposed to be sent home for more than ten days in a school year and can’t be sent home if the reason they’re sent home is related to their disability. 

Ranu said the district’s set-up places the onus on parents and families to ensure charter schools are complying with special education law. 

“This is another example of how the cost of managing the district are spread out among the participants in the system. Now families have to take on the role of making sure that these incidents of noncompliance end up with the appropriate authority,” he said. “Because there is no central authority over special education in New Orleans.”

The majority of the city’s charter schools are overseen by NOLA Public Schools. A handful are overseen by the district has charter contracts with each school and can cite schools for failing to follow special education law. 

“NOLA Public Schools remains focused on ensuring all schools meet the requirements set forth in federal and state law with regards to serving students with disabilities, through our ongoing oversight and implementation of the Charter School Accountability Framework,” district Communications Director Tania Dall wrote in a statement to be attributed to NOLA-PS. 

The district did not respond to a request for comment regarding the improper selection of schools. 

Ranu encourages families to report any special education issues to the district in addition to their child’s school. 

“If a student has an issue at school the school may very well take care of it and that’s great,” Ranu said. “How many of those students are having to go through the extra step?”

He pointed to a recent problem at Mary D. Coghill Charter School where one parent’s complaint led to a district investigation that uncovered eight other students who had not received special education services. The school is now required to make-up those services for the students. 

“By reporting issues to NOLA Public Schools, one, the district holds them accountable and two, that we get a picture of what’s happening in special education in the district.”

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