Jessica Cejnar Andrews / Thursday, March 14 @ 12:27 p.m. / Education
Del Norte Unified Named As Defendant in Special Education Lawsuit Against the State; Judge Holds Off On Preliminary Injunction Request
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Del Norte Unified School District has been named in a lawsuit against the State of California over a staffing shortage plaintiffs say has left the district unable meet the needs of its special education students.
A representative with the Disability Rights Education and Defense Fund confirmed Wednesday that DNUSD is a now a defendant in the case.
DNUSD spokesman Michael Hawkins said DREDF attorneys sent the school district an email Wednesday informing them that they are a defendant in the lawsuit. District administrators are still reviewing that email, Hawkins told the Outpost.
This development followed a review hearing held before Judge William Follett at the Del Norte County Courthouse on Tuesday.
DREDF and the Civil Rights Education and Enforcement Center, or CREEC, along with the international law firm King & Spalding LLC, filed the lawsuit on behalf of six local special education students and their families in December.
In addition to the school district, the defendants are the California Department of Education, the State Board of Education and Tony Thurmond, state superintendent of public instruction.
DNUSD’s new status as a defendant comes about a month after Follett, following three hours of testimony, denied the plaintiff’s motion for a preliminary injunction compelling the state to take steps to fix the district’s staffing shortage. According to the transcript from the Feb. 13 hearing, Follett gave the defendants until June to try to alleviate the staffing shortage.
“I think what I am inclined to do then is … deny the preliminary injunction at this point without prejudice to bring it [back], if there has not been substantial progress,” Follett told the attorneys for both parties on Feb. 13.
At the Feb. 13 hearing, Follet said that though he was a judge or lawyer for about 45 years, the issues both parties presented in the case were new to him. He called allegations of students losing the skills they had learned as a result of being denied access to behavioral aids, speech therapists, occupational therapists, physical therapists and special education teachers disturbing.
But Follett said he was reluctant to order the state to take receivership of DNUSD when it’s not a party in the case.
“I have serious concerns about whether the Del Norte Unified School District is a indispensable and necessary party and I want to hear from counsel about that,” he said. “I question whether the district has been accorded this due process right to respond to the allegations with regard to failure to provide services. I also question whether the local school board and the superintendent should have an opportunity to address the problems rather than usurp that authority and tell the estate to do it.”
Follett took issue with the plaintiffs’ request for him to order the California Department of Education to “immediately take all actions necessary to ensure that all disabled students with exceptional need receive full equal access to a program that meets the prevailing education standards within the state.”
Follett called that request vague and broad.
“It seems like the court would be saying, ‘Yeah, there’s a problem. The state, you are to figure out what that problem is and immediately to fix it,’” the judge said.
Follett pointed out that the state is already monitoring DNUSD.
In its opposition statement, Attorney General Rob Bonta’s office states that Del Norte Unified has been designating as “Need[ing] Assistance.” District representatives have stated that staff recruitment is a key priority and submitted an action plan to the state on Dec. 12, 2023. The state Department of Education approved that plan on Dec. 18.
This plan emphasizes “new and focused efforts to provide training and achieve full staffing for special education services by May,” according to the state.
On Feb. 13, Follett questioned whether the state had a “ready source of special education teachers and aides” it could provide DNUSD.
“I don’t know where the state would get those people to immediately solve the problem,” he said.
According to DREDF attorney Malhar Shah, acting on information that the district’s staffing crisis was getting worse, attorneys for the plaintiffs told the judge at a status update roughly two weeks ago that if he was going to deny the preliminary injunction to “do it now.”
DREDF plans on bringing a renewed motion for a preliminary injunction before Follett, but Shah said he wasn’t clear on when that would happen.
“We do not anticipating waiting until the end of the school year and conducting discovery and demonstrating to the judge that this is not going to be fixed by the end of the school year without the state coming in and providing significant support,” he told the Wild Rivers Outpost on Friday.
Both parties in the lawsuit are in the discovery phase currently, according to a DREDF representative.
At a community meeting on Feb. 10, CREEC attorney Cynthia Rice told families of special education students that if the judge rejected the motion for a preliminary injunction, DREDF and CREEC would request more information from parents, teachers and service providers.
Meanwhile, according to Sarah Elston, a special education teacher at Del Norte High School and president of the Del Norte Teachers Association, the district’s previous special education director, Craig Kimball, was let go.
Hawkins said Wednesday that DNUSD is “in between special education directors.” Administrators are considering potential candidates to fill the vacancy, he said, but haven’t hired anyone yet.
Elston also says that DNUSD has been shuffling special education teachers around different school sites to replace instructors in two Bess Maxwell Elementary School classrooms. One of those teachers had been in the transition program, working with 18- to 22-year-old special education students at Del Norte High School.
Another special education teacher at the high school has now taken over the transition program, leaving Elston and her colleague Brittany Wyckoff to absorb that teacher’s case load.
“As it stands right now [Bess Maxwell] does have credentialed teachers in the classroom as of yesterday,” Elston said, adding that those teachers came from Sunset High School and Community School. “So that place is without a special education teacher.”
Elston’s statement was corroborated by Emily Caldwell, a speech language pathologist who’s assigned to work at Bess Maxwell and the high school.
One teacher at Bess Maxwell had resigned right before Thanksgiving break, Caldwell told the Outpost. Another went back to teaching general education students in January, Caldwell said.
“The biggest confusion that’s happening is with families,” she said. “At Bess Maxwell there’s no communication. Families are not notified of new teachers, they’re not notified of subs in the classrooms, they’re not notified of anything. And the students in these classrooms are non-verbal. They can’t go home and [say] ‘Oh, we had a sub today.’ Students come home with big behaviors or they have meltdowns on the bus.”
Caldwell also says special education students at Bess Maxwell are being forced to wait in a separate line from their general education peers to get food during lunch. And at recess, they are separated from their general education peers.
Fourth and fifth-graders are in the playground designed for preschoolers and kindergartners, Caldwell said.
“The argument is always safety,” Caldwell said, adding that interacting with peers in the general ed population is the No. 1 way to encourage growth, social skills and success for a special needs student. “The big playground, it’s fenced in, but it’s a huge field and so [there’s] less supervision. But they’re safer on the kiddie playground. That’s not appropriate.”
When asked how the state might take action to alleviate the staffing crisis DNUSD is facing, Shah said the California Department of Education could place the district on an intensive level monitoring tier. According to him, DNUSD is currently under a targeted monitoring tier where it’s largely left to come up with its own plan for fixing things.
“Under intensive monitoring, we see the California Department of Education using experts and technical advisors to help the school district craft a plan,” Shah said.
Shah referred to a declaration from one of their expert witnesses, Dr. Jaime Hernandez, research director for the Office of the Independent Monitor for the Los Angeles Unified School District.
In his declaration, Hernandez stated creating a pool of substitute special education teachers along with a career ladder in the district with expectations of how individual staff members may advance.
Hernandez also suggested the district partner with local universities and colleges to create a pool of special education providers they could use.
Meanwhile, Shah said DREDF and CREEC still hopes to hear from parents and families of special education students as well as staff members. He said he and his colleagues are hoping a new hearing date will be set for some time in April.
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