The Louisiana Department of Education and NOLA Public Schools district both say they are ready to exit a nearly seven-year-old federal consent judgment that requires monitoring and reporting on special education services in New Orleans schools. But the Southern Poverty Law Center, which brought the 2010 lawsuit that led to the consent judgment, doesn’t think the agencies are yet able to ensure legally required special education services are delivered without federal court oversight.
Over the past month, the two sides have been meeting about a possible exit strategy and have exchanged possible exit proposals. In recent legal filings, the New Orleans school district and state lay out their policies and procedures that they say will ensure special education services are provided in accordance with state and federal law. But SPLC spokeswoman Ashley Levett said the organization doesn’t think the plans go far enough.
“LDOE’s and NOLA-PS’s proposals fail to ensure the rights of students with disabilities are protected under the PB v. Brumley consent judgment,” Levett wrote in an email to The Lens. “Their proposals are merely a recitation of what the LDOE and NOLA-PS have been doing for the past several years. We know this doesn’t work.”
The 2010 lawsuit alleged 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. While the suit initially targeted the LDOE, which at the time ran dozens of charter schools in New Orleans through the Recovery School District, the Orleans Parish School Board later joined as a defendant.
In 2014, the parties reached a landmark settlement, and the department and district have been overseen by an independent monitor — who reports to a federal judge — ever since. Signed in 2015, the consent judgment required semi-annual targeted and random monitoring of schools for compliance with special education law.
The Southern Poverty Law Center has criticized what it describes as the agencies’ “reactive” response to special education issues rather than a “proactive” approach to protecting children’s rights and ensuring they receive the federally guaranteed services. After becoming aware of an issue, the state, the district or both would place schools on “corrective action plans” when problems were discovered during monitoring.
Dozens of schools have been placed into state-issued CAPs over the last six years and 12 schools in New Orleans are currently under them. That’s despite several annual findings by the monitor that the agencies are in “substantial compliance” with the consent judgment — because the judgment simply requires the schools be monitored, not that they demonstrate compliance with special education law. The SPLC has disputed the “substantial compliance” determinations, Levett said.
The SPLC has proposed a five-point plan to enhance special education monitoring and reporting. Should the consent judgment be terminated, the group is urging the state and the district to adopt the plan.
“LDE and OPSB have not yet demonstrated that they are ensuring the delivery of free appropriate public education in New Orleans’ complex and decentralized school system,” SPLC’s filing states. “Consent Judgment monitoring shows that systemic noncompliance still pervades the independent [charter schools] in the city.”
The federal Individuals with Disabilities Education Act (IDEA) spells out those protections for children in addition to a long list of other requirements. Independent charter schools, just like traditional, district-run schools, are required to serve any and every student who walks through their doors.
NOLA Public Schools district spokeswoman Taslin Alfonzo said in an email that the district “carefully reviewed” the five-point proposal SPLC submitted to the court.
“NOLA Public Schools, SPLC, and the State are in ongoing discussions regarding next steps in the process,” she wrote. “Appropriate closure of the Consent Judgment is everyone’s goal.”
Louisiana Department of Education spokesman Matthew Johnson said the department does not comment on ongoing litigation.
Monitoring revealed non-compliance
The consent judgment forced the LDOE to provide targeted monitoring in four areas of required special education services.
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.
Over the course of the consent judgment, 49 of 70 — or 70 percent — of schools monitored were initially found to be noncompliant and placed on corrective action plans. (27 percent of schools placed on CAPs were found to have ongoing compliance issues in subsequent monitoring, requiring them to be placed on intensive corrective action plans.)
High rates of noncompliance weren’t all concentrated in the first year or two of monitoring. As recently as Fall 2019, 60 percent of ten schools selected for a first round of monitoring were noncompliant.
The schools performed worst in the enrollment and related services categories. SPLC notes that providing special education services — such as speech, physical and occupational therapy — is central to the federal Individuals with Disabilities in Education Act.
The filing also reviews disciplinary records for students with disabilities. Department of Education records showed they were 1.53 times more likely to be suspended than their non-disabled peers. (And the records don’t detail the full range of discipline. SPLC lawyers noted that not all discipline, such as not being allowed to participate in a class activity or parents being called to pick up a child from school early, is captured in state level reporting.)
Court-ordered monitoring itself has also been an issue.
Schools are selected for monitoring by the state under terms outlined in the consent judgment. For example, if school records showed that students in a school were not spending as much time with special education teachers, counselors or other service providers as required, that would be a flag for monitoring.
In 2017 and 2018, the state monitored the wrong schools for special education compliance — picking schools that by the consent decree’s metrics did not merit additional oversight.
“These errors raise doubts about whether LDE has developed the processes necessary to effectively oversee schools in a decentralized system,” the SPLC filing states.
What’s more, monitors still found special education compliance issues at those schools.
“Our concern is illustrated by the outcomes from the monitoring of the schools that were incorrectly selected for initial targeted monitoring,” they wrote. “As noted by the Independent Monitors, one might reasonably expect that the schools selected in error would demonstrate a higher rate of IDEA compliance. This was not the case. Eight (8) out of the ten (10) (or 80%) of the schools that were incorrectly selected were placed on CAPs for systemic non-compliance across the areas of child find, related services, and enrollment stability.”
The state argues that because it has received a finding of substantial compliance and has expanded monitoring that it is ready to be let free of the consent judgment.
New Orleans’ decentralized system presents numerous challenges to providing special education services, SPLC’s filing states. Dozens of independent nonprofit charter groups are legally treated as their own districts, called local education authorities, though New Orleans charter schools are still authorized by the Orleans Parish School Board and regulated by the NOLA Public Schools district.
The charter boards run 80-plus schools in the city and each must have special education expertise, offer specialized services, and plan and account for the higher costs associated with those services.
SPLC attorneys say they believe that centralizing special education services under the NOLA Public Schools central office would be the most effective way to serve students with disabilities in New Orleans, but the recommendations in their plan do not go that far. The plan does note, however, that the district has already centralized enrollment and expulsion after problems with those systems in earlier years following the post-Katrina move toward an all-charter district in New Orleans.
The district has made some steps towards providing specialized programming for the neediest of students — but those programs only serve a few hundred students at most.
Another issue affecting the district is small populations of students with disabilities spread across various campuses. Because charters are treated as their own districts by the state, that can mean their performance isn’t tracked at the state level if they don’t meet the student population threshold for public reporting. For example, the state does not release the specific number of students who score a certain grade if that number is below 10.
The Southern Poverty Law Center’s plan calls for the state department and local district to enhance special education monitoring, strengthen monitoring standards, provide technical assistance to schools, engage and inform parents better and strengthen special education evaluation and accountability.
“By itself, the monitoring of Local Education Agencies (LEAs) is reactive,” the attorneys wrote. “It catches mistakes after they have been made and, and as a result, students lose time and opportunities in their education.”
They also note charter schools are exempt from providing gifted services because it falls under a different area of state law.
“An exemption from the statutory protections for gifted services is troubling because diagnosis with disability can mask a twice exceptional student’s gifts,” the filing states in a footnote. “The potential for this masking is heightened when the disability intersects with other marginalized statuses.”
SPLC proposes more areas of special education, such as discipline and child find, the process of diagnosing disabilities, be included in the state’s monitoring and letter grade system, and that intervention should occur as soon as data even hint at potential noncompliance. The organization also suggests the school district improve the special education information provided to parents during enrollment and criticizes the district’s centralized enrollment system — New Orleans Centralized Application Process, or NCAP — for referring parents to each individual school for information on special education programs housed in individual files, rather than providing detailed program information in a central location that can be readily compared by school.
Filing complaints about special education problems should also be simplified, the proposal says.
“Families with special education-related problems are confronted with at least three
different complaint processes when they go to OPSB’s website,” they wrote. “This places the onus on families to understand the complex nuances of the accountability structure and properly classify the nature of their complaint before they even submit it. It puts too great a burden on families.”
While the district touts its school profiles available in its plan, the SPLC argues they are still too decentralized for parents to gain meaningful information in the choice-based district.
Another struggle for parents in the decentralized district is understanding where to report special education complaints as they can be lodged at the school, district and state level.
The attorneys suggested the district create an Office of Ombudsman to help walk families through complaint procedures and that it create a unified complaint process.
The filing also criticizes the district’s decisions to renew charter schools with ongoing special education issues.
“We are concerned that OPSB and LDE may not consider special education program compliance and performance with a high enough level of scrutiny at the time of charter school renewal,” the filing states. “The Superintendent of OPSB’s recommendations for charter school renewals this year illustrate our concern. Excluding schools that received automatic renewals of their charter contracts, every school but one is on LDE’s urgent intervention list for students with disabilities. Five (5) of the eighteen (18) schools that were up for renewal had been issued CAPs under the Consent Judgment.”
The filing also denounced the district’s offer of 10-year contracts to two schools that had received CAPs in prior years.
“Two of these schools, Lusher Charter School and Lake Forest Elementary Charter School, were recommended for the maximum automatic renewal terms of ten (10) years despite being issued a CAPs in 2018 and 2019, respectively,” the filing states. “Mildred Osborne Charter School was recommended for a five (5) year renewal even though it has been issued three (3) CAPs under the Consent Judgment and one (1) ICAP.”
Schools that fail to follow special education laws should not receive renewals longer than three years, the filing states. They also note that OPSB’s charter contracts allow them to revoke charters for failing to comply with special education law — but that the district does not have a set description or standard for what constitutes such a violation. They encourage defining baseline performance and compliance targets from special education data that is routinely collected.