Jessica Cejnar Andrews / Monday, Dec. 18, 2023 @ 3:45 p.m. / Education
Special Education Advocates Sue State On Behalf of Six DNUSD Students; Lawsuit Aims To Place District In Receivership
Previously:
A lawsuit filed on behalf of six special education students seeks to place Del Norte Unified School District under state receivership. | File photo: Andrew Goff
###
[Updated at 10:52 a.m. Tuesday to correct Cheryl Theis's name.]
Six special needs students and their guardians are suing the State of California, accusing education officials of failing to remedy a staffing shortage they say has left Del Norte Unified School District incapable of meeting their academic, social and emotional needs.
The plaintiffs’ attorneys also filed a motion for a preliminary injunction on Thursday to compel the state to place DNUSD under receivership or take other “directive action” to ensure they and other disabled students receive the education they’re entitled to.
They are being represented by the Disability Rights Education and Defense Fund (DREDF), the Civil Rights Education and Enforcement Center and the international law firm King & Spalding LLC.
“The State Defendants, however, continue to sit idly by while disabled students with exceptional needs in the District are told to stay home from school or are forced to sit in classrooms where no learning occurs — learning to which all California students are entitled. In doing so they have abdicated their duty under the California Constitution to provide students with their right to an equal educational opportunity,” the motion for a preliminary injunction states.
The defendants listed include State Superintendent of Public Instruction Tony Thurmond, the California Board of Education and the California Department of Education.
A “very preliminary hearing” is scheduled for 10 a.m. Friday in Del Norte County Superior Court. The goal at that hearing is for a judge to agree to seal sensitive documents related to the plaintiffs from the public as well as to allow them to proceed with the lawsuit under fictitious names, DREDF Staff Attorney Malhar Shah told the Wild Rivers Outpost on Monday.
Friday’s hearing will also determine whether the State of California should appear in court on Jan. 16 to argue whether or not the preliminary injunction to place the district in receivership should be granted, Shah said.
“The receivership is a common remedy in this situation because the court can tell the state to fix the problem but can’t exactly tell them how to do it,” he said. “It’s a way for the state to appoint someone to manage the assets of the school district and ensure they’re being used in the most efficient manner — being used to fix the actual problem facing the school district.”
According to Shah, DREDF learned about the conditions at Del Norte Unified through Cheryl Theis, a senior education advocate in the foundation’s Parent Training and Information Center.
Thies has been working with parents in Humboldt and Del Norte counties whose students have IEPs for about three to four years, Shah said.
“We learned recently that the staff shortage has hit a critical point,” Shah told the Outpost. “So it’s through that [Parent Training and Information Center] that we started to reach out.”
DREDF has also spoken with teachers and special education providers working with DNUSD students, he said.
Of the roughly 4,000 students enrolled at DNUSD schools, about 15.4 percent have individual education plans, or IEPs, according to a Disability Rights Education and Defense Fund press release Thursday. This exceeds the 13 percent state average.
Native American students account for 15.2 percent of DNUSD students with IEPs and more than 65 percent of students qualify for free meals.
DNUSD Superintendent Jeff Harris said the lawsuit came out of left field. He reiterated that the district wasn’t named as a defendant. Officials hadn’t received a copy of the complaint as of early afternoon Monday. DNUSD heard about the lawsuit through the DREDF’s press release, the district's superintendent said.
“We haven’t spoken to the attorneys and the lawsuit is not necessarily with us,” Harris told the Outpost. “It’s about the state’s role in enforcing special education or supporting the enforcement of special education laws in California. This is something new to us. It’s new to the district. We’ll continue to work with our families, but we’ll also be working with legal counsel as we go through this process.”
Harris said he has only heard of two cases that involved the state putting school districts into receivership and they were both because they were fiscally insolvent.
In an October conversation with the Outpost, Harris acknowledged that the district owes compensatory education to “every student who was not able to access their education.”
On Monday, Harris said things are significantly better than they were two months ago. The district will soon have more than eight speech language pathologists working with students as well as two board certified behavioral analysts, including one working in person with students. Harris said the district hopes to hire another in-person board certified behavioral analyst after Jan. 1.
But the district still has 110 open classified staff positions and of those, 24 work with special education students, Harris said.
Of the more than eight speech language pathologists working with the district, five are employed through third-party contractors, Harris said. This means the district needs to hire four aids to ensure students have access to those services, many of which are done remotely, he said.
The board-certified behavioral analysts are also working with DNUSD through third-party contractors, according to Harris.
DREDF’s lawsuit against the state asserts that the shortage in board certified behavioral analysts, behavioral aids, speech language pathologists, physical therapists and school psychologists has led to several students regressing in their progress.
Because of the shortage in behavioral analysts there’s a lack of training. Classroom and individual aids don’t know how to read an IEP to identify the services they should provide to the students they work with. As a result, they’re unable to identify “precursors to disability-related behavior” or provide interventions to keep that behavior from escalating, the lawsuit states.
One student, who the lawsuit identifies as Shawn T, who has autism, qualifies for specialized instruction, two aids and speech therapy. Because of the staff shortage, he has had to miss 20 days of school this year, the lawsuit states.
“As a result of missing so much class time, Shawn has lost the ability to use his [augmentative and alternative communication] device and lost his potty training skills,” the lawsuit states. “Last school year, Shawn’s aid left on medical leave, which forced the district to provide Shawn with an untrained and unqualified aid.
"Beyond being unqualified, this newly-appointed aid shockingly physically assaulted Shawn — choking him for an entire minute. The extreme trauma resulting from this vicious attack by a trusted aid caused Shawn to miss 60 days of school….”
Another student, Monica C., who has autism is entitled to speech and physical therapy, behavioral services and specialized instruction. Because she’s immunocompromised, she receives those services at home through DNUSD’s home and hospital program.
However, this year due to the staffing shortage, Monica hasn’t received any services, according to the complaint.
“She was previously able to do addition and subtraction and was emerging with multiplication and division ideas, but now she cannot even say the correct answer to 6 + 6,” the complaint states. “She also used to be able to use mnemonics and other language-based exercises to do math and learn math concepts, but she cannot do them anymore… Monica has also lost her ability to adhere to a daily schedule because of the lack of structure, so her progress in reading and writing has halted.”
Harris said the district continues working with families and the state to provide those compensatory services. There are deadlines DNUSD has to meet and staff are documenting the actions that need to be taken to make up the education hours many of its special education students are owed, he said.
“Some of the families have filed complaints with the state and we have worked with the state to provide information they’ve requested,” Harris said. “In all the cases I’m aware of, there have been findings issued by the state either that the district was or was not in compliance and when the district was not in compliance the state has issued corrective actions.”
Despite Harris’s assertion that the district is working to make sure those students are getting their needs met, Del Norte Teachers Association President Sarah Elston said things have gotten worse. The staffing shortage has not only led to a loss in hours for special education students, she said, it’s affected teachers and classified staff.
Elston, who teaches special education at Del Norte High, said her colleagues have taken time off due to stress, some exhausting their allotted leave hours for the school year. Certificated and classified staff are begging for mental health care, she said, and there are a large number of absences every day.
“From our perspective, it’s not getting better or bigger organizations wouldn’t be stepping in,” she said. “What we’ve done as DNTA is we are filing grievances with the district for issues that apply to our contract and we are also filing complaints with the California Department of Education.”
The California Teachers Association is also providing support, including an attorney, to those who are working with DREDF as it moves forward in its lawsuit.
“There is a lot of fear about retaliation,” Elston said. “CTA is here to make it known that these people are union represented and this is kind of a grander cause. We are being advocates for our students and for people who have no voice.”
CLICK TO MANAGE