The Louisiana Department of Education and the NOLA Public Schools district are ready to be released from a five-year-old federal consent judgment that requires additional and in-depth oversight of special education admissions and services at the city’s charter schools, according to independent monitors who oversee the judgment. 

The landmark 2015 consent agreement settled a 2010 class-action lawsuit, brought by the Southern Poverty Law Center and ten families against the state Department of Education. The New Orleans school district was later added as a defendant in 2012. The suit 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. The settlement has ensured that third-party monitors oversee the state department’s oversight of special education in charter schools in New Orleans. 

In their latest status report, covering the 2018-2019 school year, the monitors found the state had achieved “substantial compliance” with the consent decree for the third year in a row. Under the terms of the consent decree, the city’s schools can be released from monitoring after achieving substantial compliance and maintaining it for two more consecutive years.

However, during two of those years — the 2017-2018 and 2018-2019 school years — dataset errors led the state to select the wrong schools to place on intensive, targeted monitoring. Schools are selected based on specific special education data, as outlined in the consent decree. The state is supposed to select outliers — schools that spent the least time per-student providing special education services, for example.

In a letter filed with the monitors’ report, SPLC lawyers contended any move toward ending federal oversight would be “premature,” arguing that some schools are not yet in compliance with the federal Individuals with Disabilities in Education Act. The letter also notes that the state still has outstanding corrective action plans for a handful of additional schools found to be noncompliant with the federal law. 

Whether the state can cease annual targeted monitoring of special education in New Orleans charter schools will ultimately be left up to U.S. District Court Judge Jay Zainey. It’s unclear exactly when an order might come down. Oftentimes the judge holds a status conference after annual reports are submitted, and many court matters have also been delayed in recent months due to the COVID-19 pandemic.

Additionally, in a separate report filed Wednesday, the monitors answered questions on the data the department used to select schools to monitor each year, including the two years where sloppy record-keeping led the state to monitor the wrong schools. Schools were selected based on data in one of four different areas, such as average special education service minutes provided per special education student. Then the state would visit the schools, interview staff, review student files, and, if necessary, issue a corrective action plan (CAP) to schools where they found problems.

A spokesman for the state Department of Education said it doesn’t comment on ongoing lawsuits and the NOLA Public Schools district did not respond to a request for comment.

The SPLC lawyers have argued the state, district and charters “have not achieved substantial compliance with the [consent judgment] because systemic noncompliance is ongoing and has been identified in each and every year of targeted monitoring.”

For example, in their latest report, the monitors detailed how the state monitored Audubon Charter School and found problems with every student file it examined. Notably, Audubon had those problems even though it was one of the schools that was monitored in error, meaning the data it was handing over to the state did not show major red flags. 

The issues included not properly including parents in the IEP process, failing to adequately describe students’ academic performance and failing to track services. The report described the issues as “systemic noncompliance.”

In their May 2019 letter, the SPLC lawyers argued that the state can’t merely issue corrective action plans and call the problems resolved. They noted that in 2016-2017, the first year of monitoring, the state issued corrective action plans to eleven schools, and only five of those schools were in compliance within a year. The new 2018-2019 report identified four schools that were not in compliance and additional issues with several student files at more schools. 

Despite the schools presenting problems, the state received a “substantial compliance” finding from the monitors. That’s because the consent decree is designed to evaluate the state’s ability to monitor schools — not the schools’ special education outcomes. 

But the point of the consent decree, the SPLC lawyers wrote, was to ensure compliance with federal special education laws. 

“It is clear that the CJ was designed for the purpose of actually improving the delivery of special education, related services, and free appropriate public education to students with disabilities across Orleans Parish. The CJ was not formulated as an administrative remedy,” they wrote.

While the plaintiffs’ lawyers said they see “encouraging improvements,” as fewer schools required corrective plans after this round of monitoring, they say they are still concerned. 

In a separate letter, the NOLA Public Schools district, meanwhile, explained that it has created a support department and increased its monitoring of city charter schools. But the SPLC again argued that effort did not appear to be enough as problems with special education services were found once again in the latest report. 

Behind the numbers

Lawyers for the SPLC posed several questions about the data the state department used when deciding which schools to monitor in-depth. Their questions came partially in response to the state’s previous errors, due to what was eventually chalked up to sloppy record-keeping and calculation errors. The SPLC has been critical of that error as well, arguing it’s a core function of the state’s duty.

“These reports are meant to tell us whether the department has developed the expertise to oversee the system,” SPLC lawyer Neil Ranu told The Lens in an interview last fall. “The answer the report is giving us is no.”

They also raised questions about the validity of the data to weed out schools that could be problematic. The data used was agreed on by both parties at the beginning of the consent judgment. 

In response to questions, the monitors argued, the data “cannot be used to reliably predict possible deficiencies in the delivery of special education services.” But they emphasized that it was the agreed upon data established to select schools. 

In the second recent report filed July 1, the monitors answered questions on the data the department used to select schools to monitor each year.

Lawyers for the families noted enrollment of students with disabilities ranged from less than one percent to more than 30 percent at different city schools. 

The monitors reviewed four years of data and found the district average percentage enrollment for students with disabilities was 13.4 percent, slightly higher than the statewide average of 12.4 percent. The monitors did highlight six schools that had noticeably lower than five percent enrollment of students with disabilities. They are Lusher Charter School, Benjamin Franklin High School, International School of Louisiana, Robert Russa Moton Charter, Einstein at Village D’Lest and Foundation Preparatory. 

The monitors hypothesized that Franklin and Lusher — both selective admission schools — and ISL — a language immersion school — “may have few applications from students with disabilities.”

Foundation Prep had just opened in 2015 and its population of students with disabilities quickly rose.

The monitors also noted several schools had identification rates of zero percent, but the monitors argued that number wasn’t far off the district’s five year average of 1.41 percent. They also noted that more students may be identified in elementary schools, thus making high schools more likely to have a lower rate of new identifications. 

Over five years, an average of 22 percent of students with disabilities did not re-enroll in the same charter school. It’s unclear if this number accounts for school closures. 

“The most plausible explanation to account for these relatively high levels of student non re-enrollment may likely be the result of the inherent mobility of students and families in New Orleans,” the monitors wrote, noting that the average enrollment across the city hovers around 16 percent. 

However, their explanation fails to take into account New Orleans’ system designed to allow students to attend any school regardless of where they live in the city.

The monitors also analyzed the average IDEA enrollment percentage by school letter grade, finding that A-rated schools had the lowest special education enrollment at about 7 percent, which the monitors attributed to selective admissions. They were followed by F-rated schools at close to 11 percent. Schools with a B rating and C rating each had enrollments between 13 and 14 percent. 

Latest findings

Independent monitors summarized their observations from 2018-2019 school year targeted monitoring at 12 schools specifically selected for one of four areas of special education compliance. 

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. 

Some of those schools in the latest round were selected erroneously. But the monitors said that wasn’t a problem because the state monitored schools last fall that had earlier been incorrectly left out of targeted monitoring.

Lake Forest Charter School, Walter L. Cohen College Prep and Edward Hynes Charter school were reviewed for “child find,” the process of identifying students with disabilities. Edward Hynes Charter School and Lake Forest Elementary Charter School were found to be compliant. But Walter L. Cohen College Prep was not, and the state issued a corrective action plan. 

Robert Russa Moton Charter School and Lusher Charter School were incorrectly selected for targeted monitoring of special education services in the fall of 2018. The state should have monitored New Orleans Science and Mathematics High and ReNEW Accelerated High School. The state correctly monitored Karr, which was in compliance.

At Moton, staff found problems with a few student files, but found the school to be in systemic compliance. At Lusher, eight of ten student files had problems and the school was judged to be in noncompliance. They called the school selection error “an inadvertent technicality” and said it did not “significantly compromise the overall objectives of the CJ.” 

The department monitored more schools as a remedy, which the monitors said “broadened the scope of the CJ.”

Sci High, New Orleans Military and Maritime Academy and Einstein Charter School at Village De L’est were monitored for discipline. All three were compliant. 

And finally, Audubon Charter School, Medard Nelson Charter School and William Fischer Accelerated Academy were monitored for enrollment stability. Audubon was incorrectly selected; Martin Luther King Charter for Science and Technology should have been monitored that fall based on selection criteria. 

Audubon was found to have systemic noncompliance and the monitors found problems in ten out of ten student files they reviewed. The issues included not properly including parents in the IEP process, failing to adequately describe students’ academic performance and failing to track services. Files at Nelson had similar problems and both schools were given state corrective action plans. 

Fischer had fewer issues with its student files. Both Fischer and Nelson closed at the end of that school year. Nelson, part of the New Beginnings Schools Foundation network, was ordered to ensure any students missing minutes had those services made up.

The two sides have fought over the definition of “substantial compliance” before. Lawyers for SPLC argue schools should be in compliance with special education law, while department lawyers argue it is solely the process of oversight that needs to occur. 

Marta Jewson

Marta Jewson covers education in New Orleans for The Lens. She began her reporting career covering charter schools for The Lens and helped found the hyperlocal news site Mid-City Messenger. Jewson returned...