Jessica Cejnar Andrews / Monday, Feb. 12 @ 11:57 a.m. / Education
Del Norte Plaintiffs in Special Education Lawsuit Against California Get First Hearing Tuesday; State Says It Has Taken Action
Attorneys with the Disability Rights Education and Defense Fund and the Civil Rights Education and Enforcement Center met with Del Norte families Saturday ahead of a hearing scheduled for 9:30 a.m. Tuesday. | Jessica C. Andrews
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A local judge has received 16 declarations from parents of special needs students who say Del Norte Unified School District is denying their children services, according to a Civil Rights Education and Enforcement Center lawyer.
Speaking at a community meeting on Saturday, Cynthia Rice said these parents made their declarations under penalty of perjury. She and her colleagues, Malhar Shah and Erin Neff, attorneys with the Disability Rights Education and Defense Fund (DREDF), urged families to show up at a hearing Tuesday at the Del Norte County Courthouse.
“It’s really important for the judge to see everybody in the courtroom,” Shah said. “The state is saying this is not a systemic problem. That’s obviously not true. We want to show the judge that this is an entire district problem.”
At 9:30 a.m. Tuesday, Judge William Follett will consider a motion for a preliminary injunction to compel the state to take action to fix a DNUSD staffing shortage that Shah says has led eight to nine students at the high school level to miss on average 30 to 40 days of school.
DREDF and CREEC’s lawsuit against the State of California names as defendants the California Department of Education, the State Board of Education and Tony Thurmond, state superintendent of public instruction.
Regardless of the outcome of Tuesday’s hearing, DREDF and CREEC will proceed with its lawsuit and will request more information from parents, teachers and service providers, Rice said.
“The court can order the state to do something immediately,” she said. “They can take over the district totally or in some small measure, make them respond more quickly, identify resources for them more quickly, make them hire technical assistants. We’re not sure what the judge will ultimately order.”
If the judge rejects the plaintiffs’ motion for a preliminary injunction, DREDF and CREEC would likely add more plaintiffs in addition to the six students they’re representing, Rice said.
The plaintiffs’ attorneys would also begin a formal process where DNUSD is compelled to provide information on the number of staff who have filed grievances, the number of workers compensation claims filed as a result of the staffing shortage and how many special needs students have been denied time in the classroom, Rice said.
“We think we have put a good enough case in front of the judge to say [to the state], ‘You have to do something. I’m not going to let you off the hook,’” she said. “He could say, 'No, you need to make a better case down the line.' We’re just not sure.”
DREDF and CREEC, along with the international law firm King & Spalding LLC, filed their lawsuit and the motion for a preliminary injunction in December. The judge has 30 days to rule on the preliminary injunction, Shah said.
DNUSD’s staffing shortage has been going on since before the COVID-19 pandemic, Shah said. As a result of being denied access to behavioral aids, speech therapists, occupational therapists, physical therapists and special education teachers, he said, many students have lost the skills they had learned.
“You’ll see in the declarations we submitted to the court, kids are no longer able to read and write the way they were able to,” Shah said. “They can no longer communicate the way they were able to. Students can no longer walk around their home. Students are losing their handwriting abilities. Students can no longer do basic addition and subtraction. There are students in the fifth grade who are reading at a first grade level. This is the result of not having services.”
The State of California, however, says the plaintiffs failed to “carry their heavy burden” for the judge to issue a preliminary injunction compelling it to step in. In its statement of opposition, Attorney General Rob Bonta’s office says the state is already overseeing DNUSD to make sure it resolves the staffing shortage.
“[The] plaintiffs fail to identify measures that the state appropriately could take beyond those the District already is pursuing,” the defendant’s opposition states. “Further, plaintiffs fail to show that an order granting compensatory education would be insufficient to remedy their alleged harm.”
In its opposition statement, the State of California mentions the Department of Education’s Compliance Improvement and Monitoring process, which includes an department review for students with disabilities.
DNUSD has been designated as “Need[ing] Assistance,” according to the state’s opposition statement. DNUSD representatives stated that staff recruitment was a key priority and submitted an action plan to the state on Dec. 12, 2023, according ot the state’s opposition. CDE approved the plan on Dec. 18.
This plan emphasizes “new and focused efforts to provide training and achieve full staffing for special education services by May [2024],” according to the state.
CDE has also investigated complaints parents of eight DNUSD students have made, including three of the plaintiffs. Under an order from the state Department of Education, DNUSD must take corrective actions.
“Those corrective actions have included requiring the district to demonstrate: that it has a plan to hire or has assigned needed aids or teachers; that necessary trainings have been provided for relevant staff; that staff have been notified of CDE’s findings of noncompliance and reminded of their obligations to provide services and support designated in the students IEPs; that it has made efforts to secure the return of a student to school; that it has plans for monitoring attendance by assigned aids; and/or that compensatory education ordered by CDE has been provided,” the state’s opposition statement said.
According to the State of California, the deadlines DNUSD must make these changes by have not yet passed.
On Saturday, Shah said one action DNUSD has stated it’s taking is eliminating its personnel commission.
In October, district Superintendent Jeff Harris told the Outpost that the personnel commission oversees a decades-old model known as the merit system. This system, created by the federal government to avoid nepotism and favoritism, is one of several barriers that makes it difficult for DNUSD to staff its classified positions, Harris said.
Under this system, the personnel commission creates a list of candidates for the district to hire from based on written and verbal tests and an oral interview. The hiring process can take six weeks, Harris told the Outpost.
On Saturday, Shah referred to this process as a bottleneck, but he said the personnel commission isn’t the only problem.
“It’s hard to recruit and retain people in a rural school district,” he said. “We’re working with an expert who worked for Los Angeles Unified School District and it was hard there too and LA can recruit people easily.”
Shah argued that DNUSD’s staffing shortage is also the product of a culture where the existing staff are burned out and aren’t being compensated enough.
Meanwhile, the attorneys and Cheryl Theis, senior advocate for DREDF’s Parent Training and Information Center, urged parents to reach out.
Theis, who has been working with Del Norte families for about four to five years through the PTI, reminded parents that every child in California is entitled to an education. Many other families don’t have a clue as to what’s going on, she said, urging them to spread the word.
“Some of you have lost jobs or had to go part time or had to hire someone to be with your child at home when they can’t go to school. Parents get phone calls to pick up their children because [behaviors] escalated and they don’t have the support they need,” Theis said. “My colleagues and I heard all these stories and we asked Malhar and the legal team to help because it’s such a systemic issue. It’s bigger than any one family.”
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