When Kelly Fischer moved to New Orleans in 2009, she expected that finding the right school for her 8-year-old son Noah would be a relatively simple process.
Though Noah needed special accommodations because he’s blind and has autism and a significant cognitive delay, a large urban school system would certainly be prepared for many different types of students. But when she got here, placing Noah in a school that could accommodate him came to consume all of her time.
She secured a spot for him at John Dibert Elementary School, run by the state at the time, but the school wouldn’t provide a personal teacher’s aide. And when she looked around for a better fit, school after school said they didn’t have a place for Noah.
“I was actually being told by schools that they didn’t serve kids like my son,” Fischer said.
In 2009, New Orleans was just a few years into a new experiment in K-12 education. Formerly a traditional, centrally controlled school district, since Hurricane Katrina most of New Orleans’ schools had been taken over by the state, which was converting them into publicly financed, privately run charter schools. In 2009, more than half of the city’s students attended charter schools and more would charter each year after that. Dibert was run directly by the state when the Fischers came here. It would convert to a charter school the following year.
Charter schools were autonomous — free to manage their day-to-day affairs independent of school board or state control. And most were independent, unable to tap into a central office for resources like the aides and highly specialized therapists that many special education students require.
At the same time, parents had to apply to each charter school individually to enroll their children.
New Orleans was still years away from establishing a centralized enrollment system, which now helps ensure schools don’t turn students away at the front desk. On Fischer’s searches, driving from school to school to find out who could best serve Noah, many of her denials were verbal.
“The problem with that is when parents get turned away verbally there is no record,” Fischer said. “So the Department of Education really has no knowledge this is even happening unless we speak out.”
When she eventually brought her concerns to the state school board, she was told what she was describing wasn’t possible, because it was illegal.
Charter schools, just like traditional schools, are required to serve any and every student who walks through their doors. The federal Individuals with Disabilities Education Act (IDEA) spells out those protections for children in addition to a long list of other requirements. Perhaps the most well known is a student’s Individual Education Program, commonly called an IEP, which acts as a contract between parents and their child’s school and describes all services the student needs to be successful to the best of their abilities.
Fischer would join nine other parents in a 2010 lawsuit filed against the state by the Southern Poverty Law Center that charged the city’s charter schools were admitting too few special-needs students and failing to provide proper services to the ones they did enroll. The Orleans Parish School Board, which oversees the NOLA Public Schools district, joined as a defendant in 2012.
In late 2014, the parties reached a landmark settlement that required a third-party monitor to oversee the Louisiana Department of Education’s oversight of special education in New Orleans schools. A federal judge signed the settlement in early 2015.
As the five-year anniversary of that legal settlement approaches, New Orleans schools may soon see the end of federal court oversight. On paper, local and state officials have largely shown improvements in meeting the regulatory benchmarks set in the settlement, called a consent decree.
But to the attorneys representing the plaintiff class — all New Orleans special education students — it’s not clear that the progress has resulted in an overall improvement.
Neil Ranu, a civil rights attorney with the Southern Poverty Law Center who represents the plaintiff class, said the two sides disagree on what is required of the state in the settlement.
“They have been arguing that all they need to do to fulfill the terms of the consent judgment is abide by its processes and procedures, to administer the terms of the consent judgment,” he said. “Our position has been that we’re looking at outcomes. We go through the process and when a school shows instances of noncompliance, that school is not released, or the state does not get credit for that school until the issues identified have been remedied.”
Schools are still failing to follow federal law. Last year, the state Department of Education placed eight New Orleans schools on corrective action plans, often called CAPs, based on findings from the consent decree monitoring that they were not in compliance with IDEA. The plans are designed to last a year, but two of the eight schools failed to meet exit criteria this spring. They’re now on what’s known as “intensive CAPs.”
Over the summer, three more city schools were placed on CAPs based on monitoring in December 2018.
That’s on top of a recent revelation that the department — as a result of errors and sloppy record-keeping — failed to follow the terms of the consent decree, selecting the wrong schools for what’s called “targeted monitoring.”
Meanwhile, New Orleans schools continue to receive state and local warnings for failing to serve students with disabilities. Both State Superintendent John White and NOLA Public Schools Superintendent Henderson Lewis Jr. declined to be interviewed for this story.
Roby Chavez, the father of two first-grade boys with autism — one of whom also has attention deficit hyperactivity disorder — said he is still fighting the same battles Fischer fought.
Three years ago, Chavez, who was raised in Lafourche Parish, returned to Louisiana from California after hearing about the progress New Orleans schools were making. With the consent decree in place, he felt confident local schools would be able to serve his boys.
Now in first grade, the boys are enrolled at Bricolage Academy, their third New Orleans school. Chavez told the Lens that he and his husband still find themselves in weekly conversations with the school about one of the boys regarding discipline, or their son running out of the classroom, or whether he’s getting the services he needs.
“During the year that my child was a kindergartener he was being suspended multiple times. So we get a call to come pick up our child. What we found was the school wasn’t keeping records of that,” he said.
“So again, my child is being suspended, he has a disability, he has a behavior improvement plan. So it’s supposed to be where you do not consider just the behavior for kids with disabilities. You have to see whether or not that disability is leading to some of those behaviors that are happening in the classroom. That was not happening.”
“Bricolage does not comment on the experience of any individual student or family,” Josh Densen, who was Bricolage’s CEO at the time, wrote in an email responding to Chavez’s claims. Densen, who founded the Esplanade Avenue school, left Bricolage at the end of November to take another job.
A return to New Orleans
The Fischer family moved to New Orleans from Indiana in 2009 after Kelly’s husband Robert, who grew up on Nashville Avenue, retired.
“It was shortly after Hurricane Katrina and he said ‘I want to go home; I want to help be a part of rebuilding this city,’” she recalled.
They arrived in August 2009. Fischer said the Orleans Parish school district directed her to the state-run Recovery School District, which controlled the majority of city schools — a mix of charter and state-run — at that time. Noah was 8 years old then.
“The Recovery School District literally was just trying to find a school that had a classroom with an opening for him,” she said. “The IDEA services and what best met his needs totally went out the window immediately.”
Fischer said she met with the John Dibert Elementary School’s special education coordinator the day before Noah started there. She recalls being told the school couldn’t provide a teacher’s aide who would work one-on-one with Noah, something that was written in his federally protected Individual Education Program.
“I was immediately concerned. Because at the time Noah’s language ability was probably at a 2- or 3-year-old level —” she paused. “Not probably, but for sure, because Louisiana tested him to determine that.”
Without an individual aide, Noah would have to find his way around a classroom and through the school alone. Fischer decided to go to school with him to demonstrate how much support he needed.
“My thought was that if I showed people the amount of assistance he needed just to function in the classroom, to navigate the school building, to go to the bathroom, to eat a meal, then they would get a better understanding that he really needed the supports that were in his IEP,” she said. “It wasn’t a luxury or something they could choose to do without.”
But she said she quickly discovered the school didn’t seem too concerned.
“The teacher would just put a worksheet on his desk and keep going as if this blind child was going to be able to sit at his desk and fill out a worksheet.”
So Fischer went to the principal, the special education coordinator, and the Recovery School District. She said she didn’t get any answers. Fischer was also looking for a new school for Noah at that point. (She eventually found one, but she said that Noah encountered similar problems there.)
“One school [leader] said that she could talk to her charter board and see if they would consider serving kids with the level of needs that my son had, which she thought that was a generous offer,” she said. “And another school just basically told me, ‘Well we would take him. I don’t think we’re hurting kids like him here, but I know we’re not helping them.’”
With nowhere left to turn, Fischer went to a meeting of the state Board of Elementary and Secondary Education.
“Basically the response from the board was that that couldn’t be happening because it’s against the law and if it was happening they’d be in the middle of a lawsuit,” Fischer said. “Or, if it did happen to me, it was just a fluke.”
It was at that meeting she met someone who knew of the Southern Poverty Law Center, and she later went to meet with the organization.
“So they kind of started talking about this group of parents that were having similar experiences and that’s sort of what went into the lawsuit,” she said. “The focus of the lawsuit was simply to get these problems fixed.”
Someone at the Department of Justice told them they could sue for damages, but that’s not what parents wanted, Fischer said.
“I wanted to make sure my son got served properly and I wanted to make sure other kids in the school district were also getting served properly because I quickly understood I wasn’t alone — not by a long shot.”
Lawsuit leads to landmark settlement
In 2010, Fischer joined nine other families in what would become a class-action lawsuit against the Louisiana Department of Education.
In the lawsuit, families described a variety of problems from being unable to enroll in school to not receiving special education services and children being excessively suspended and restrained in violation of federal law.
According to the suit, one family did find a school that would enroll their child, but the school wasn’t wheelchair accessible, which lawyers said barred the student from “equal educational opportunities.” The plaintiffs said that family’s child was suspended for 15 days in one school year due to behaviors that resulted from his disability. That is illegal under federal law. Lawyers also said that several New Orleans charters schools had suspension policies and suspension rates for students with disabilities that did not comply with federal law.
The lawsuit continued for years. Despite being well-known because of it, Fischer said she still encountered problems navigating Noah through the school system during that time.
“When it came time for him to transition to high school I went to a high school fair, and there I had three schools tell me different versions of ‘We aren’t a good place for his needs,’” Fischer recalled.
“One school asked if I had considered private schools,” she said. Another told her they couldn’t provide the required teacher’s aide.
“It was frustrating. Because at that point the lawsuit had been out there for years.”
After years of back and forth, the sides agreed to settle on a consent decree that included a third-party monitor to review state oversight of special education. The judgment, signed in early 2015, required the state to monitor four areas of special education.
Those areas include “related services,” meaning the actual special education services the schools provide once they enroll students. 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 individual schools.
A limited number of schools are selected each year for “targeted monitoring” — a round of intensive monitoring — based on data they submit to the state about special education enrollment, the percentage of students they screen for disabilities, time spent on special education services and discipline rates. For example, the consent decree dictates that the three schools that report spending the least amount of time providing special education services per child should be selected for monitoring.
Ranu, the civil rights attorney with the Southern Poverty Law Center, said the consent decree takes two main approaches to special education oversight. The first created a set of provisions regarding planning, he said.
“So ensuring that at the state level, local level and school level they had developed sufficient plans and procedures and policies and processes to serve students,” he said.
The second, he said, is monitoring and the judgement spells out four areas to track.
“Schools are selected according to certain metrics whether they’re at risk for noncompliance or not at risk,” he said. “And then we test the system to see if there have been improvements in special education.”
When a school is selected for targeted monitoring, state employees visit the school to review files and other data, interview staff and observe the operations of the school. Those observations can result in a good performance review or lead the state to call for additional targeted monitoring at the school.
After the 2015 judgment, 2016 was the first year of targeted monitoring.
“And 100 percent of the schools that were selected show instances of systemic noncompliance,” Ranu said, noting that when a school policy or procedure falls short students may not receive the legal protections they deserve.
If more than 20 percent of student files show a violation in a particular legal requirement, Ranu said, that would be considered systemic noncompliance for that area.
For example, the law requires parents to be invited to IEP meetings. If the monitors found that in 20 percent of students files, parents hadn’t been invited to IEP meetings, that would be systemic noncompliance.
Despite the schools presenting problems, the state received a “substantial compliance” finding from the monitor. That’s because the consent decree is designed to evaluate the state’s ability to monitor schools — not the schools’ special education outcomes.
The monitors reported the state was complying with its administrative duties of reviewing schools. Having had two substantial compliance findings in a row, the state was poised to exit federal oversight with one additional positive report. That could have come as early as this fall.
But last June, problems with the state’s monitoring process surfaced.
A case record identified “potential errors” with the monitoring process. A September report detailed five “areas of concern” with the state’s monitoring and revealed that 10 schools had been monitored when they shouldn’t have been.
“Beginning in 2017 is when we have the mistakes that were recently identified,” Ranu said. “Even in that year there were about 83 to 85 percent of the schools showed systemic noncompliance.”
“And then in the years following is when we had these errors so it’s hard to say whether the results are necessarily reliable after the first year of monitoring,” he said.
Depending on how the federal judge overseeing the case views the problems, monitoring could be extended. Had the state and the NOLA Public Schools district received their third substantial compliance finding in a row this fall, they could be released from federal oversight.
With no report publicly released yet, the state has already begun the monitoring process for the 2019-2020 school year.
Still, Ranu argues, that shouldn’t make up for problematic years.
“Now you might imagine, if we’re selecting the wrong schools, we’re not getting consistent or reliable data year after year and it becomes difficult to say, ‘Well what’s happening in the system,’” he said.
Even some of the improperly selected schools — schools where data did not show potential shortfalls with special education — had problems, a recent report noted. (The state has argued that shows the errors were not deliberate. They weren’t trying to obtain a favorable outcome.)
Ranu said that’s even more cause for concern.
“That tells me at least that special education issues we’ve been having have remained pervasive and persistent throughout the entire system,” he said.
In October, the NOLA Public Schools district issued warnings to three schools for special education shortcomings. All three were based on state monitoring that took place in December 2018 under the consent decree. At another school, the district investigated after one parent complained and found that parent’s child, as well as eight other students, were not receiving proper special education services.
Special education today and beyond the classroom
Last spring, Roby Chavez, the father of the two boys with autism who attend Bricolage Academy, found himself at his sons’ charter school’s board meeting. He was there as a last resort, similar to Kelly Fischer’s appeal to the state board.
Because of Fischer and the other families’ work, he told WDSU and The Lens he had felt confident in moving to New Orleans.
“Again, I feel like when we moved here the consent decree would be the safety net that we needed for my two boys. And I think, you know, no one pays attention to it. You don’t hear about it. Schools are not scared that they’re being held accountable to anything different.”
After working through Bricolage’s administration and other school officials, Chavez and his husband attended the March meeting to appeal to the board for the special education needs of one of their boys who they argued wasn’t being properly served in after-school care. Many families had taken note of a recent aftercare policy revision.
“It looked like the rules were revised to identify special needs kids and their issues. And so one of them was you have to sit still. One of them was you couldn’t push. These were all issues that these kids with fight or flight issues have,” he said.
Josh Densen, the Bricolage CEO who recently left the school for another job, would not comment specifically on Chavez’s experience but said students with disabilities have full access to school programs.
Special education law is layered and complicated. The protections it provides extend beyond the school and school day to things like field trips and aftercare. While it may not necessarily be a parent’s job to point that out, Chavez was at the meeting to do just that.
In fact, during the afternoon meeting, Chavez’s husband had to leave to address an issue with their son in aftercare. That was also the norm, Chavez said, daily calls from school staff for behavioral issues that fall within a school’s responsibility. The after-care issue was just one more problem.
After sitting through more than an hour of the meeting, Chavez read an emotional appeal to the board. The board didn’t offer much immediate reaction other than board chair Alan Philipson, who ordered a report on special education from Densen within the next six weeks.
Densen said he delivered the report but Chavez said when he inquired, he was told the results were private. Densen told the Lens the report is protected by attorney-client privilege.
At the time, Chavez worked for the Louisiana Association for Public Charter Schools. A member-organization led by Caroline Roemer.
After Chavez publicly approached the board, Philipson and Roemer both approached him.
“Both of those people came to me and said, ‘You should have just come to me. We could have worked it out,’” he recalled.
Chavez said he lost his job shortly after confronting the board.
Asked for comment, Roemer wrote in an email that the organization does not speak about publicly about personnel matters.
“Every parent has the right to be a voice for their child,” she wrote in an email. “We fully support Mr. Chavez in his efforts to ensure that his boys receive the services that they have a legal right to receive and we will continue to do our part by advocating for all charter schools to meet the highest standards for academic performance, finance and operational best practices, and compliance with all laws.”
This fall, Chavez tried to get Bricolage to write in aftercare supports in his son’s IEP.
“This year when we had our review we tried to add it. They said, ‘Oh we don’t have the right certified person in place to be able to add that support,’” Chavez said, similar to language Fischer said she heard when trying to enroll Noah in school a decade ago.
Chavez thinks the school is being cautious about what it puts in writing.
“By putting it in the IEP it demands that they do it. It makes them legally accountable to do it,” he said. “So now they are refusing to put that in the IEP, which if my kid has behavior issues, can get him kicked out again.”
He also said the school failed to properly document his son’s suspensions, which also was a complaint of original plaintiffs in the lawsuit.
Students with special needs can be suspended for a maximum of ten days in a year. Additionally, schools are required to conduct something called a Manifestation Determination Review. That concludes whether the child’s disability played a role in the behavior. If it did, the student should not be suspended for it.
“You have to see whether or not that disability is leading to some of those behaviors that are happening in the classroom,” Chavez said. “That was not happening.”
When Chavez found out about the state monitoring the wrong schools, he felt it was symbolic of the state of the system.
“I think it speaks volumes in terms of what’s happening in our schools now. Everyone thought this consent decree was going to come in and kind of save our special needs kids and improve the classrooms,” he said. “But it seems like its just being ignored. It doesn’t seem like it has the weight everyone thought it would to improve schools.”
Densen suggested WDSU and the Lens contract other parents of special education students at his school and provided contact information for two parents. WDSU spoke with Becky Robb, whose son is in fourth grade at Bricolage. He’s been there since kindergarten, when he was diagnosed with autism. Robb said she chose to hire a therapist to accompany him at school rather than have the school to provide one.
Special education at Bricolage was “probably not at par” when her son started at the school five years ago, Robb said, but she credited school leaders will making strides since then. After her son’s therapist accompanied him from first through third grade, Robb said he’s now on his own in a fourth-grade classroom with two teachers, one of whom is a special ed instructor.
“Services have picked up a lot,” Robb said.
Chavez thinks one weakness for oversight in special education services is that they are handled on an individual basis.
“So there’s not a lot of collective talk among the parents,” he said. “But then when things start happening — your kid gets yanked out of class, you can’t do a classroom visit, you can’t go to aftercare — then parents start talking and you share these experiences and you wonder like that can’t be. Then you read the law and you’re like, ‘That shouldn’t be.’ But it is.”
More group discussion about special education will likely begin soon. Starting next year, a new state law requires all school districts (and many charters are their own districts) to create special education advisory panels. Applications for the district panel are due Dec. 13 and the group will meet at least three times a year to advise the district on special education policies, procedures, and resources.
In their pre-kindergarten class at Morris Jeff Community School, Chavez said his son with ADHD was put into a general classroom but wasn’t provide the special services he needed. Morris Jeff Principal Patricia Perkins addressed the claim in a statement: “Morris Jeff Community School continues to stand in full compliance with IDEA and Louisiana State Department of Education policy and requirements.”
Despite the issues, Chavez said his family has settled in and “hunkered down” at Bricolage.
“When we came here there were three schools that were identified as the best for kids with special needs. I feel like we’ve gone to all those schools — and all of them have fallen short,” he said. “I worry that if these are supposed to be the best of the best and they’re falling short, I wonder what’s happening to the other kids across the city.”
Special education struggles continue as monitor’s report lingers
The Fischers returned to Indiana in 2018. Education wasn’t their main reason for leaving, but it was a factor, Kelly said. Jumping back into a public school in Indiana last year, was much easier than the transition to New Orleans a decade ago, Fischer told The Lens.
“Here you are in a public education system and just for a quick comparison, when we moved to New Orleans, my son has a special diet. He needs soft-blended food. And the first school he went to wouldn’t allow me to pack a special meal for him without a doctor’s note. Which of course I didn’t have because I just moved to New Orleans and I didn’t have a doctor.”
When they moved to Indiana, things were different.
“I asked if I could pack a lunch they were like, ‘Sure, but you know our cafeteria can blend food from the cafeteria for him,’” she recalled. “In fact they even sent home a cafeteria menu for me to circle all the items they thought he would like.”
“The first day of school they sent me a picture of the food that was blended and asked if it was blended to the right consistency,” Fischer said.
At the end of our interview with Fischer via webcam, 18-year-old Noah came in to join. He told us about his school and his teacher. He likes to sing, he said, and sang us a short song. He also started to talk about Dora the Explorer.
“He’s a great kid and I know that he doesn’t do the things a typical student does in school, but he still has a place in school and school still serves a very valuable role for people like him in the sense of increasing independence, advocating for the things he likes to do, vocational skills that sort of thing,” Fischer said.
When the state released its annual A-F school ratings in early November, the federal Every Student Succeeds Act also required it to identify schools struggling to serve certain student subgroups, such as students with disabilities or English language learners.
Of the district’s roughly 80 schools, 56 were on that intervention list for one population or another. That means students in those subgroups are performing at a D or an F, or the school has had an out-of-school suspension rate more than twice the national average for three years in a row.
This year’s list included 46 New Orleans schools identified as needing intervention for how their students with disabilities are performing overall. Bricolage is one of them.
Half of those schools earned an F for students with disabilities for two year in a row or more.
In their September report, the consent decree monitors wrote that the fact that schools that should not have raised concerns under the terms of the consent decree were still found to be out of compliance with the law brings into question the metrics used in the decree. And it “further indicates the level of concerns that continue to exist among NOLA/OPSB schools with regard to [federal] compliance, thus suggesting the continued need for LDOE oversight and support under the provisions of the (judgment).”
Ranu, the civil rights attorney, said change may also have to come in other forms.
“There are also other mechanisms by which advocacy and change can happen in New Orleans especially because this consent judgment really focuses on the responsibility of the state to design a system,” he said. “It doesn’t necessarily, the schools themselves are not party to the lawsuit and so I think that if there is going to be another version or generation of legal work or advocacy that happens it’s going to happen at the school level.”
Fischer said it was frustrating to hear the state had not monitored schools as spelled out in the consent decree and that schools continued to have problems.
“The frustration for me is that, Noah’s not there anymore, but there are a lot of great, great kids who are and I care about those kids. And so to see this perpetuation of disinterest on the school’s part to fix these problems or to take any action is really disturbing. And it’s really upsetting and the people that are losing because of that are people like Noah who have to walk into the school building everyday and put their trust that those educators are acting in their best interest.”
WDSU’s Greg LaRose contributed to this report.