A step toward an RCSD special-ed settlement

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A lawsuit filed this month in U.S. District Court here marks a milestone in the Rochester City School District and the Empire Justice Center’s plan to fix the district’s troubled special education program, officials say.

Filed July 16, the class action complaint targeting the RCSD and the Rochester Board of Education is the next step in an ongoing joint effort “to effect systemic changes in special education,” said RCSD general counsel Karl Kristoff and Empire Justice Center lawyer Maggie Robb in a statement. Robb heads the Rochester- and Albany-based public interest law group’s civil rights, education, employment and health division.

Longstanding ills of the RCSD’s special education program came to the fore tragically last year with the death of Trevyan Rowe, a middle-school student who wandered away from School 12 unnoticed and later was discovered drowned in the Genesee River. A scathing report by the state attorney general highlighted shortfalls in an RCSD special education program that already had been tagged as deficient, maintaining that the district’s failure to recognize and address the 14-year-old’s evident special needs was a major factor in creating the circumstances that led to his death.   

The court case grows out of a roughly 18-month collaborative effort between the RCSD and the Empire Justice Center that is hoped to bring the district’s perennially out-of-compliance special education program into line with federal and state requirements.

Neither the school district nor the public interest law group would comment further at this time, the attorneys said in the statement. The parties expect to “soon submit a comprehensive proposal for a settlement they have reached to the court for consideration and review of whether the settlement is reasonable and fair to the plaintiffs and the class they represent the court,” they added.

Nixon Peabody partner Carolyn Nussbaum, who is representing some plaintiffs in the case, declined to comment. 

If the court approves the plan or a modified version of it, the RCSD will sign a consent decree agreeing to carry out its terms under court supervision. 

Demanding rights

The class-action suit states that it is filed on behalf of some 6,500 Rochester special needs students who are entitled to certain rights laid out in the federal Individuals with Disabilities Education Act and in New York regulations. 

Five sets of students and their parents, identified only by initials of their first and last names, are lead plaintiffs in the class action. All of the more than 6,000 RCSD special needs students have been denied the benefits of the free appropriate education the federal act requires. But each set of lead plaintiffs stands for a separate subclass of students shortchanged by RCSD, the complaint explains.

N.N., for example, was diagnosed with autism and attention deficit hyperactivity disorder, but as a second grader “had a good year due to his teacher’s expertise in working with students with disabilities,” the suit states.  

But the more than 10 days N.N. was sent home from school, or did not attend because his principal told his mother not to send him, exceed the maximum number allowed under the federal law. Additionally, RCSD erroneously marked him present on some of those days, the suit claims.

Another plaintiff, T.G., attended a city school as a second grader, but suffered from anxiety attacks severe enough that her school called her mother to take her home on a number of occasions. 

According to the court brief, T.G. did well after her parents put her in the Cobblestone School, a private school with small classes and a focus on its students’ emotional well-being. But after a few years Cobblestone closed and after flunking out of a parochial school T.G. went back into the public system. Despite her difficulties as an RCSD second grader, the district resisted classifying her as a special needs student and “for unknown reasons” delayed implementing a plan of action once it did classify T.G., the court action states.

Dysfunction and lack of communication are likely culprits behind the district’s failure to recognize T.G’s already documented special needs as well as its unexplained delay in providing appropriate services. But, the complaint adds, once it did classify T.G., the district did not have a programs or classroom situation that would fit her needs.

Directly quoting RCSD’s own case records, the suit notes that “T.G. would thrive in a small school environment where she can socialize with teachers and peers,” but in settings the RCSD had available, “T.G. doesn’t have much opportunity to build relationships with peers.”

The court complaint is dense with technical and legal language specific to the laws it seeks to hold the RCSD accountable to. Themes that emerge are common to the allegedly shortchanged subclasses of special needs students. Nevertheless, in some cases RCSD’s disorganization is at fault, but in others, it is not clear that it has the resources to comply.

Third decree

If a consent decree is finalized, it will be the third such agreement the RCSD has inked. Decrees that the district agreed to in 1983 and 1997 were supposed to close many of the same gaps the plan currently in the works aims to fill but ultimately failed despite court interventions. 

As to whether this lawsuit might succeed where two previous similar efforts failed, signs are mixed. Distinguished Educator Jaime Aquino’s November 2018 takedown of the RCSD attributed a good share of the district’s dysfunction to a high rate of turnover in administrations and lack of school board unity. 

A new RCSD superintendent, Terry Dade, started on the job July 1, promising to stay as long as five years or more. The makeup of a partially new school board that will be seated in January won’t be known until November. Its internal cohesion and how effectively it works with Dade won’t be evident until next year.

In addition to inheriting an in-progress special education fix, Dade is working with a budget approved before he assumed the district’s top post. Among other cuts, the spending plan eliminates 40 special education supervisory posts, turning the affected supervisors’ responsibilities over to building administrators, at least some of whom will need training. 

The special education cuts are regrettable but needed if the RCSD is to bring a longstanding structural deficit into line, former interim superintendent Dan Lowengard told the school board. The district could no longer afford to dip into a reserve fund that is now dangerously close to depletion, warned Lowengard, who drafted the spending plan.  

Meanwhile, Rochester Mayor Lovely Warren has continued to push for the school board to be ousted in favor of a governance system yet to be devised by the state Department of Education. A letter Warren mailed to Rochester households this month urges voters to approve a November ballot measure she sponsored that would eliminate the city’s school board for the next five years or longer.

“I hope you will join with me and vote so once and for all we know exactly what you, our parents and citizens want,” Warren wrote.

The Education Department, meanwhile, learned last week that Commissioner of Education MaryEllen Elia plans to leave at the end of August, adding a new level of uncertainty to the RCSD’s already cloudy outlook.

While it might seem that such headwinds could slow the plan’s progress, the RCSD-Empire Center’s joint statement says the district and the law center are still hewing to the terms of a pact they inked last year which “anticipates that by the end of a three-year period of court supervision, the District will achieve the progress necessary to conclude the continued involvement of the courts.”

Will Astor is the Rochester Beacon’s senior writer.

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