Parents Believe Knox County School System Discriminates under ADA

By Sally Absher

During the December 2014 regular School Board meeting, Board Member Lynne Fugate addressed a group of parents of students with special needs who had spoken in public forum, saying, “To the Special Education parents, we hear you. I talked to Dr. McIntyre – I would like for the board to have a mid-month workshop on exactly what are the Special Ed laws, exactly what’s going on…”

That hasn’t happened yet, and nowhere was the need for such a workshop more apparent than at the September regular board meeting when the Board voted 8 to 0 (Board member Patti Bounds was out of town that week) to uphold the decision of the Hearing Board and Dr. McIntyre in dismissing Stephanie and Matt Anderson’s September 29, 2014 grievance complaint under the Americans with Disabilities Act (ADA).

The Andersons have been vocal about their eight year struggle for inclusion in the general education (Gen Ed) curriculum for their son Jack, who is on the Autism spectrum, under the Individuals with Disabilities Education Act’s (IDEA) Least Restrictive Environment  (knoxfocus.com/2015/01/house-jack-built-one-familys-fight-inclusion).

In many regards, things are much better for Jack now than when he started in Knox County Schools at the age of three. At that time he was placed in a Comprehensive Developmental Classroom (CDC) at Fort Sanders Special Education Preschool.

There was never discussion during the initial Individualized Education Program (IEP) meeting regarding placement options for Jack other than this fully segregated educational setting. Federal law, which applies to students age 3-21, mandates that a school follow the continuum of services, meaning that you take a child to a more restrictive environment only if the service they receive cannot feasibly be delivered in a less restrictive environment – the least restrictive being Gen Ed.

In his appeal to the Board of Education, Matt Anderson said “Knox County Schools misinterprets and misapplies federal law as it relates to students with pervasive disabilities.  This misinterpretation directly leads to unnecessary segregation from the general education classroom.  ‘Unnecessary segregation constitutes discrimination in violation of Title II of the American Disabilities Act.’  That’s not my opinion – that last sentence is a quote from the US Department of Justice. ”

Because the correct IEP process of determining Jack’s Least Restrictive Environment was repeatedly disregarded by KCS, Jack spent the first 5 years of school full time in CDC. He continually showed he was capable of more, and by the end of second grade much of the material he was learning in the CDC was Gen Ed curriculum. But in the CDC setting, he was separated from his non-disabled peers, which is detrimental to academic, social and emotional development and a violation of his educational rights under IDEA.

At the end of second grade, the Andersons worked with Ball Camp staff to have Jack start third grade in the General Education classroom for over half of the school day. After six weeks of this newfound and successful inclusion – yet with an IEP that still listed 35 hours per week of CDC, the Andersons, were assisted by Kim Kredich in securing an IEP that accurately reflected Jack’s new placement, plus the supplementary support of an instructional assistant. With this new service delivery configuration, Jack was now in the Gen Ed classroom 5 hours per day. This was a 72% reduction in the special education Jack received, and he was successful – academically and socially

In the fourth grade, Jack is taught in the Gen Ed classroom five hours a day.  But KCS still insists that direct services (which for all students with IEPs, focus on student’s educational deficits) be conducted in CDC, rather than in Resource. KCS no longer uses the term “CDC” and “Resource.” But when he is pulled out of the Gen Ed classroom to something other than what the law describes as a “supplementary service such as a Resource Room,” that is not his Least Restrictive Environment but instead is a more restrictive environment of a segregated Special Class setting.

The Andersons aren’t claiming that Jack doesn’t need special services, nor do they have an issue with Jack being pulled out of his Gen Ed classroom to receive this specialized instruction.  They simply want the pull-out support to be tied to his 4th Grade classroom work and IEP goals instead of to a developmental classroom setting where the group work is at a first or second grade level.

Since Jack is the only child taking the TCAPs in this segregated group (all of the other CDC students typically utilize alternative assessments), the Andersons feel the tested information is being “held hostage” while Jack is forced to engage in lower-level curriculum for a whole hour each day that does not even relate to his two Math goals.

The Andersons’ request is simple: administer Jack’s direct services in a Least Restrictive Environment (Resource), rather than in a Special Class setting. Knox County Schools cannot simply decide to keep removing students to very obviously segregated Special Classes with the CDC teacher as the Teacher of Record and claim it now just calls everything “Special Education.”  Because this denies IEP teams the tools with which it is required to consider a child’s true Least Restrictive Environment, and this results in unnecessary segregation.

And unnecessary segregation is discrimination.

But the opinion of KCS, and apparently the Board of Education, is “what difference does it make?”

Legally, it makes a lot of difference. Some of the landmark cases in Special Ed law – which were presented to the hearing committee and are in the transcript – have directed school districts to provide supplementary services to achieve inclusion in the Gen Ed environment, and these cases have involved students with incredibly involved disabilities, well below grade level.

So while Resource is technically a Special Ed Setting, it is legally considered to be part of the GENERAL EDUCATION ENVIRONMENT and is therefore considered at the least restrictive end of the continuum of placements because the law defines Resource as “in conjunction with regular class placement” (34 C.F.R. §300.115).

Knox County cannot blur the lines of IDEA law to the point of violating a student’s rights, and this is what has happened with Jack and other students whose IEP teams are not properly considering supplemental aids and services in meetings.  Again, it is this practice that results in unnecessary segregation of students with disabilities.  It is this practice that has led to the unnecessary segregation.  And this is discrimination.

 

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