The Louisiana Department of Education and Orleans Parish School Board have asked a federal judge to release them from a decade-old judgment, instituted on behalf of special-education students who weren’t receiving services from charter schools in the early days of New Orleans’ decentralized school district.
In February, in a request filed in U.S. District Court for the Eastern District of Louisiana, school officials argue that they have met the requirements laid out in the 2015 settlement and have continued to “implement robust approaches to monitoring, accountability and support of schools and their students.”
Lawyers for the Southern Poverty Law Center – who represent the kids who don’t receive special-ed services – are pushing back, asking judges to maintain the consent judgment.
“For families in New Orleans public schools, the system remains woefully unable to address the needs of students with disabilities,” SPLC wrote in a reply filed with the court last week, on March 25.
The lawyers’ concerns are backed up by a broad audit on special-ed monitoring by the state of Louisiana. The state failed to monitor 43 of 100 school systems to ensure students with disabilities received legally protected services, auditors determined. Instead, state monitors allowed the majority of districts to self-report compliance with federal law. The state also did not review special-education policy at a local level to ensure what parents may read is accurate.
Civil-rights advocates have long worried that the end of the consent decree will have serious consequences for children. SPLC says that the state-district motion is premature.
Parents are also concerned. If the consent decree is dissolved, says grandmother Terra Boyd-Price, it will be harder for her to advocate for her grandson, a third-grader with autism who struggles with sensory issues and the figurative language often found in the school’s curriculum. At his school, Bricolage Academy on Esplanade Avenue, she and other parents have long struggled to get the school to evaluate students for disabilities, she said. “They need some type of oversight,” she said.
State’s narrow interpretation only considers state’s monitoring of special ed, not whether students are properly receiving special-ed services
As it’s described in the SPLC filing, the motion from the state/school district misses the larger point – sort of like students who attend classes but don’t or can’t go further, to figure out what the class is about.
“Does it mean the state and school board gets to check boxes and say, ‘We did this?’” asked Lauren Winkler, the SPLC attorney.
As SPLC wrote in its recent filing, the purpose of the consent decree was clear: “To change the State and OPSB’s monitoring and oversight protocols to protect the rights of students with disabilities, as required by federal law.”
But the settlement zeroed in on monitoring.
It did not even require that Orleans schools actively comply with basic tenets of federal disability law — by evaluating students for special-education services, for instance.
Instead, it focused on whether the state was monitoring schools’ offerings of special education services — and not whether the schools and services they provided violated the rights guaranteed to students by two federal laws, the Individuals with Disabilities in Education Act and Section 504.
For example, the consent decree requires that the state performs yearly checks of schools that have high rates of poor interactions with special-ed kids and other schools that have extremely low rates of students with disabilities, a sign that the schools may not be properly evaluating children. To comply, the state annually checked its set of schools, placing any schools found to be in violation of the law on a corrective-action plan. In New Orleans, NOLA Public Schools has often used information from the state when issuing its warnings.
But after the monitoring, what happens is up to the schools – and many schools with corrective plans are still implementing them, SPLC lawyers say. Also, schools can rotate in and out of corrective action plans, with no apparent long-term consequences for repeated violations — or state support to fix them. That, too, concerns advocates.
Though school officials argue that they have maintained “substantial compliance” with the consent decree’s requirements, many are still violating the federal-education law that underpins the decree, SPLC lawyers write in their brief. “Defendant’s position focuses so narrowly on the targeted monitoring provisions of the Consent Judgment as to render “meaningless” explicit provisions stating the purpose of the Agreement.”
“Our position has always been that in order to comply with the consent judgment you have to comply with federal law,” Winkler said. “That’s why this was brought.”
A parent who desperately tried to find an Orleans school for her child with disabilities
In 2010, 10 families sued the state for failing to make sure that New Orleans public charter schools provided special-education services.
Now, New Orleans has a district almost entirely made up of charter schools. But at the time, 15 years ago, city students attended schools in two separate districts, run by the state-run Recovery School District and the local Orleans Parish School Board.
Kelly Fischer’s son, Noah, then 9, attended John Dibert Elementary, then an RSD school. Noah is blind, has autism and a significant cognitive delay.
Fischer was relocating to New Orleans for a job and assumed a large urban school system would be prepared for his needs. But as soon as she got here, several schools turned her away, saying they couldn’t accommodate Noah. She ended up securing a spot for him at John Dibert.
But Dibert wouldn’t provide a personal teacher’s aide, as required by federal special ed law for children with certain skill deficits and behaviors, who need significant additional support beyond the classroom teacher. When Fischer searched for a better fit, administrators at school after school said that they had no place for Noah. “I was actually being told by schools that they didn’t serve kids like my son,” Fischer said.
In 2010, Noah and his mom joined a list of plaintiffs in a Southern Poverty Law Center lawsuit against the state. The suit contended that charter schools were failing to evaluate students for disabilities, provide services to those who needed them, and properly track discipline. SPLC argued that schools were denying students access to a “free and appropriate education, or FAPE, a bedrock protection of federal education law.
Though OPSB and its “higher-performing” schools had fewer students with disabilities, it entered the suit two years later as a defendant, alongside the state.
Five years later, the two sides finally settled.
But meaningful shifts at the school level came too late for Fischer, who took a new job in Indiana, where she could find services for Noah.
Noah, now 24, graduated from high school in 2023 and loves to sing; he is active in a local choir. And from afar, his mom has kept an eye on the consent decree that they helped to launch – and the new request to end it.
“My concern is that we didn’t get good compliance while it was in effect — so what will happen when it’s removed?” Fischer asked.
State’s argument to end consent decree undercut by mistakes in monitoring, SPLC argues
Though the state is hinging its request on its required annual monitoring, the monitoring was not flawless.
In a mid-February filing, lawyers made their argument that the state and the district had properly monitored special-ed practices — and had done so for several years beyond the initial two-year requirement.
But Winkler says that the compliance has been inconsistent and incomplete.
For instance, she said, SPLC attorneys discovered that the state had monitored the wrong schools, more than once.
“They had the wrong filters on the spreadsheet,” Winkler said. The digital filters should have sent monitors to schools with higher proportions of disabled students. But the state accidently “sorted” the Excel spreadsheet in reverse order and then evaluated the schools least likely to have problems with special-ed services.
The state concedes that point. But lawyers for the state argue that it doesn’t matter, because the state still tracked other schools. SPLC lawyers see the mistakes as evidence that federal monitors should continue to keep a close eye on the state, because the error would not have been caught if not for SPLC’s legal team.
The routine closing of charter schools — “the kind of churn that we see in charters being absorbed into different charter networks” — also worries Winkler. “It’s a pretty fluid system,” she said. “There’s no stability in that.” Too many transferring students can impede the district’s ability to ensure that IEPs follow each child, she said.
For students who transfer schools, Orleans charters have also struggled to track the most basic of academic records, such as academic transcripts, much less the more detailed records that come with special-ed students, such as IEPs and legally binding contracts.
Plus, monitoring alone is not enough, said Winkler, noting the state’s own data should convince the court not to lift the consent decree. Over the years, in its targeted monitoring, state monitors found 50% noncompliance with federal special-ed requirements.
That does not feel like “substantial compliance,” Winkler said.
Four critical areas of concern
The state and the district were charged with monitoring four areas:
- “Child Find” is the term for the program school districts use to identify children from birth to five years old that need special-education services. School districts have a duty to identify, locate, and evaluate all children – including those who attend public and private schools or are homeschooled – who may need special education services.
- Related Services include physical therapy, speech therapy, or occupational therapy, all of which must be provided when required in a student’s independent special education plan, called an IEP.
- Enrollment made the list because low proportions of students with disabilities could indicate schools that were exclusionary or discriminatory, or those which failed to identify students with disabilities.
- Discipline needed to be monitored because students with disabilities are afforded special protections from discipline. They may not be suspended for more than a total of 10 days in a school year. And before a school takes any disciplinary action, its personnel must complete a “Manifestation Determination Review,” which examines whether a student’s disability led to their punishable behavior. If the student’s disability contributed to its behavior, the student cannot be suspended for it.