setting precedent

Inside one Colorado family’s long legal journey to affirm their son’s right to a meaningful education

PHOTO: Creative Commons / supermac1961

Jennifer was sitting on a plane at Denver International Airport last March when she got an email on her phone that made her want to scream with joy.

It was official. She and her husband Joe had won their long-running case against the Douglas County School District with a unanimous decision from the highest court in the land.

The landmark ruling — coming less than three months after Jennifer and Joe watched oral arguments in the U.S. Supreme Court’s chambers in Washington, DC — raised the standard schools must meet in educating students with disabilities.

It had been a decade since the couple’s frustrations first welled up over their older son Endrew’s stalled progress in elementary school and six years since they’d filed suit against their suburban Denver district in a case known as Endrew F. v. Douglas County School District.

Jennifer and Joe recently sat down with Chalkbeat to discuss the case, their first lengthy interview with a news organization. They asked that their last name not be used to preserve their family’s privacy, in keeping with their wishes throughout the court case.

Over the years, there had been reams of paperwork, multiple losses in the lower courts and lots of waiting. But on that Wednesday morning as Jennifer and her younger son were departing for a spring break trip to Texas, a brief email from the family’s lawyer changed everything.

“I kind of started to hyperventilate on the plane,” Jennifer recalled. “My first thought is, ‘Is this for real?’”

As other passengers boarded, reality set in and Jennifer called her husband to share the news. Joe was in the midst of dropping off Endrew, who was 17 at the time, at Firefly Autism House in Denver — the private school he’d attended since Jennifer and Joe had pulled him out of public school at the end of fourth grade.

“I got zero work done that day,” Joe recalled. “I just immediately read the decision twice. I started looking at, ‘What’s the news saying? What’s this mean?’”

What the 16-page decision meant was that the Supreme Court had raised the bar. It had thrown out a lower court standard requiring slightly more than minimal educational progress for special needs students.

The ruling held enormous significance for millions of students with disabilities across the country. The high court, speaking on the issue for the first time in more than 30 years, sent an unequivocal message to schools about the effort they needed to make in educating students with disabilities.

Chief Justice John Roberts, who authored the Supreme Court’s unanimous opinion, left no doubt about the court’s position on the inadequacy of the old standard.

“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” he wrote.

Languishing at school

Jennifer and Joe never set out to sue their school district.

“We didn’t want to pull him out of the school,” Joe said. “We didn’t want to take them to court. We didn’t want to do any of this. But we were pushed into a corner and had to — to get what he was entitled to by law and what he needed.”

As Endrew, who goes by Drew, got to third and then fourth grade, problems at school compounded. He would scream, climb over furniture and other children and sometimes run off school property, according to court documents. He had extreme fears of commonplace things — flies, spills and public restrooms.

For a few years early in Drew’s elementary school career, Jennifer and Joe had paid a private therapist to come into the school and consult with his teachers. But they said the district eventually halted the practice.

Asked why that practice was discontinued, district officials declined to answer. William Trachman, a lawyer for the district, wrote in an email that the district normally does “not discuss the details surrounding pending cases.”

As Drew hit third and fourth grade, anxiety pervaded their lives. The youngster was stressed and defensive. Jennifer would brace herself for the regular phone calls she received from school staff asking her to come in and calm Drew down — and twice to take him home. On the occasions he managed to run away from school, she feared for his safety.

Still, Drew’s Individualized Education Plan or IEP — a plan required for special education students under federal law — didn’t change. It contained the same basic goals and objectives as in previous years.

“… we didn’t get anything different than what he had been offered before in terms of services,” Jennifer said.

“He was being babysat,” Joe said.

The couple, who own a company that sells industrial equipment, tried to blame other factors for Drew’s troubles. They wondered if switching schools after second grade did it. Or the transition from one teacher to two. Perhaps the move to a year-round school schedule — six weeks on and three weeks off — snarled Drew’s sense of continuity.

Eventually, they decided it wasn’t any of those things. He simply wasn’t getting the kind of support he needed.

In May of Drew’s fourth-grade year, Joe and Jennifer withdrew him from public school and enrolled him at Firefly, a 25-minute drive from their Highlands Ranch home. Tuition was about $65,000 a year, which they paid in full. (Starting a couple years ago, their health insurance began covering about half the tuition.)

Jennifer and Joe noticed a dramatic difference in Drew within a month of the school switch.

“We had a different kid,” Joe said. “He’s happy … He’s not afraid of everything at school.”

Try, try again

About six months after Drew moved to Firefly, his parents approached the Douglas County School District about the prospect of re-enrolling him locally, with a new education plan informed by Firefly’s data and program.

“He had this huge growth and we came back and went, ‘Hey, let’s take what they learned. Let’s apply it over here and put Drew back (in public school).’ And their attitude was, ‘No, we’re going to do the same old thing. Here’s the exact same information again.’”

Trachman, the district’s lawyer, refuted that claim, saying in an email the district did craft a new plan for Drew and that the federal district court acknowledged that.

“The court has already noted that the two IEPs were, in fact, different,” he wrote. “For that reason, we can say that any contrary allegation is incorrect.”

Drew stayed at Firefly and in 2011, Jennifer and Joe filed a lawsuit asking to be reimbursed for the cost of Drew’s private school education. An administrative law judge rejected their request, siding with the school district. The same thing happened in federal district court and then the Tenth Circuit Court of Appeals.

After the appeals court loss, Jennifer and Joe set their sights on the U.S. Supreme Court.

Tuition reimbursement was not the main issue anymore. It was about clarifying what it meant to provide a “free and appropriate education” under the 1975 Individuals with Disabilities Education Act.

“The minute it went to the Supreme Court our fight really changed,” said Joe. “It was no longer about getting something for Drew. It was helping define the law … because the law was not clear.”

While the Tenth Circuit court had ruled that “merely more than de minimus” progress — just more than the minimum — was enough for students with disabilities, other appeals courts around the county interpreted the law differently.

For Jennifer, seeking a hearing from the nation’s highest court was a no-brainer.

“It was such an opportunity to hopefully make a difference for six-and-a-half-million kids on IEPs,” she said.

In a brief arguing that the Supreme Court shouldn’t accept the case, lawyers for the Douglas County School District wrote that establishing a new standard could lead to more lawsuits.

They wrote that Jennifer and Joe’s petition to the high court was “at most, a complaint from the borderline of a complex and fact-intensive area of law. … Changing a border will not eliminate borderline cases. If the new border cannot be articulated with greater clarity than the old border, borderline cases will increase.”

The court accepted the case on Sept. 29, 2016, the day after Drew’s 17th birthday.

“We were ecstatic,” Joe said.

The decision

When the Supreme Court’s decision came out March 22, advocates for students with disabilities were thrilled.

Jennifer and Joe’s lawyer, Jack Robinson, called it a “game-changer.”

The ruling soundly rejected the old standard, saying it allowed instruction that aimed so low it was tantamount to sitting idly until students were old enough to drop out.

“The IDEA demands more,” read the opinion, referring to the 1975 law. “It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

It didn’t go quite as far as Jennifer and Joe had hoped, but it was far above the Tenth Circuit standard.

After the ruling came out, Erin Kane, the interim superintendent of the Douglas County School District, sent a letter to district parents. Jennifer and Joe received it, too, since their younger son is still in school there.

“We, in DCSD, welcome the ruling as we do not believe in applying a ‘more than de minimis’ standard to our students — we are dedicated to setting high standards for every one of our students,” she wrote.

Kane also noted “that the Supreme Court Justices did not say that DCSD lost the case. They have simply sent the Endrew F. case back to the lower courts where it will be reconsidered with this new standard in mind.”

When he read the letter, Joe erupted in anger.

“I cannot believe you’re saying these things,” he recalled thinking. “This makes no sense.”

Both parties are still waiting for the final ruling from the lower court.

Ripple effects

His parents describe Drew, who recently turned 18, as a homebody. He’d rather stay in and eat peanut butter and jelly in comfy clothes than dress up for a meal out. He loves cats and his favorite video game is Mario Kart.

In what his parents describe as the kind of quirk that often accompanies autism, he thrills in counting down the days till Pixar releases its movies — titles like Cars 3 and Toy Story 4 — on DVD.

As far as the case that bears his name, Drew doesn’t know a lot about it.

“He’s not to the point where he could ever understand the significance or the process or anything,” said Joe.

The Supreme Court’s decision, and even the pending decision from the lower court, won’t affect Drew’s education. His parents expect he’ll stay at Firefly until he’s 21 because they are happy with the school.

Still, Jennifer and Joe said they feel heartened by the potential ripple effects of the Supreme Court decision.

In fact, even before the ruling last spring, they saw changes they attribute to their case. One day when Jennifer dropped Drew off at Firefly, she saw a Douglas County school bus pull up for the first time. It was a bittersweet sight.

“It made me mad because it felt like a slap in the face,” Jennifer said. “But it also made me feel good for those parents.”

District officials didn’t answer directly when asked by Chalkbeat whether any Douglas County students attend Firefly, but said, “… the school district occasionally places students in private schools to comply with federal law.”

Officials at Firefly, however, confirmed that Douglas County School District is one of several districts that contract with the private school.

Jennifer and Joe believe the Supreme Court’s new standard has sent a strong message to schools and will empower parents of children with disabilities.

“It put the schools on notice,” Joe said. “You have to provide something that means something. … You don’t provide a child a meaningless education. It doesn’t matter whether they are special needs or not.”

While Jennifer and Joe acknowledge that some schools are already providing a good education to students with disabilities, they believe many could do better. Jennifer said they’ve known families who have moved out of state because they can’t get the right services for their kids.

“Most people cannot continue to fight it, and honestly, I think that’s what most school districts are hoping for,” she said.

Jennifer and Joe said they kept going because they had the money, the stubborn streak and they wanted to do the right thing for Drew and other kids like him.

“We lost a lot of little battles, but we won the war,” Joe said.

Jennifer laughs remembering how things unfolded on the airplane the day she got the news. Her younger son, who was 11 at the time, asked if she was crying.

“Yes, we just won,” she told him.

“I think you’re overreacting,” he said.

“No,” she said, “I think this is exactly how I’m supposed to react.’”

The right stuff

Who will be Tennessee’s next education chief? Gov.-elect Bill Lee is getting lots of advice

PHOTO: TN.gov
As outgoing Gov. Bill Haslam looks on, Gov.-elect Bill Lee speaks at the state Capitol the day after being elected the 50th governor of Tennessee. His 75-day transition will end with his inauguration on Jan. 19.

The changing of the guard that’s coming to the Tennessee governor’s office will now definitely come also to the department overseeing state education policy.

Candice McQueen took herself out of the running to continue as education commissioner with last week’s announcement that she’ll transition in January to a new job as CEO of the National Institute for Excellence in Teaching.

While it was unlikely she would have stayed on permanently given the challenges with testing during her four-year tenure, McQueen’s planned departure cleans the slate for Gov.-elect Bill Lee to start fresh in finding the right fit to lead his vision for Tennessee schools.

The Republican businessman faces lots of choices in making one of the most important picks of his 23-member cabinet: Homegrown talent or a national search? Classroom teaching experience or workforce expertise? A quick hire or an extended search?

And he’s been getting a lot of advice.

From advocacy and philanthropic groups to the higher education and business communities, Tennessee has a large number of partners and stakeholders who care deeply about continuing the state’s momentum to improve student achievement.

“We believe that decisions made around talent and who is going to be working on education — either in the governor’s office or state Department of Education — are some of the most important decisions that the next governor will make,” said David Mansouri, president of the State Collaborative on Reforming Education, or SCORE, a nonprofit group that works closely with the education department.

“We’re looking for someone who’s going to hold the line on the school accountability framework that the state has worked so hard to build,” said Gini Pupo-Walker, a leader with Conexión Américas, which advocates for Latino families in Nashville. “We want to keep up the urgency around improving performance of different student groups and making sure that we are bringing up all kids.”

Transition period

Since winning the election on Nov. 6, Lee has huddled with a small team of advisers in a windowless office at the state Capitol to plan the transition to a new administration, including sorting through about 600 resumes submitted for various jobs in all departments.

Transition spokeswoman Laine Arnold said the plan is to have the full cabinet in place by Lee’s Jan. 19 inauguration. But, she added, “we will be open to extending this process if needed.”

Lee’s pick for schools chief is considered key — and not just because the governor-elect made education a priority on the campaign trail, including a frequent call for stronger career and technical education.

The new commissioner eventually will manage a department of more than 600 employees overseeing a public school system for about a million students, 78,000 certified educators, and $6 billion in school funding.

And because Congress voted to cede much control over K-12 policy to state officials under a 2015 federal law, the commissioner plays an even larger role than in decades past.

Homegrown vs. national

Because of the high stakes, groups like SCORE are urging Lee to cast a wide net in his search for a successor to McQueen.

“We should aspire to have best-in-class and best-in-the-nation talent, just like we’ve had the last 10 years,” said Mansouri. “That may mean the person is from Tennessee, or from somewhere else.”

PHOTO: TN.gov
Education Commissioner Candice McQueen was one of Gov. Bill Haslam’s most visible cabinet members.

Other groups emphasize the value of being familiar with Tennessee schools.

“As an organization comprised of school district leaders, we believe it would be an advantage for a state commissioner of education to have experience both in the classroom and as a public school system leader in Tennessee,” said Dale Lynch, executive director of the Tennessee Organization of School Superintendents.

Adds Beth Brown, president of the Tennessee Education Association: “The next commissioner should have a practical understanding of what goes on in our public schools. Having that kind of leader in place will go a long way to restoring teachers’ confidence in our Department of Education.”

Last handoff

When Republican Bill Haslam took the baton from Democrat Phil Bredesen in 2011 in the last gubernatorial handoff, he conducted a national search before plucking Kevin Huffman from the ranks of the education reform movement as his point person on schools.

A lawyer who was an executive with Teach For America in Washington, D.C., Huffman was tasked with managing Tennessee’s just-approved overhaul of K-12 schools as part of its $500 million federal Race to the Top award. The Obama-era competition had incentivized states to adopt shared academic standards, improve its lowest-performing schools, measure students’ growth over time, and design policies to reward and retain top teachers.

State education commissioner Kevin Huffman.
PHOTO: TN.gov
Kevin Huffman was Tennessee’s education commissioner from 2011 to 2014.

A polarizing leader, Huffman left after three years of clashing with teacher groups, district leaders, and state lawmakers over policies ranging from teacher licensing and evaluations to charter schools and Common Core.

Haslam then turned to McQueen, a native of Clarksville, Tenn., former teacher, and respected dean of education at Nashville’s Lipscomb University.

“She was a kinder, gentler Kevin Huffman,” said Dan Lawson, long-time school superintendent in Tullahoma. “They shared the same political agenda and underpinning, but Candice was able to deliver it in a smoother, less abrasive fashion.”

McQueen held the rudder steady on the state’s new roadmap, plus bolstered supports for teachers, tweaked school turnaround strategies, and launched a major reading initiative. But ongoing fumbles delivering a state test took their toll.

Interim or not

The complexities of education policy, including Tennessee’s pioneering changes over the last decade, are why SCORE leaders hope that Lee doesn’t rush to make a hire.

“We think that having a thoughtful approach that looks for the best in the nation is the right one,” said Mansouri. “If that takes time, that’s OK. It’s about getting the right person.”

There’s precedent here.

Before Haslam hired Huffman several months after taking office, he leaned on acting commissioner Patrick Smith, who had led the state’s Race to the Top oversight team under Bredesen.

Other groups agree that a thorough search is in order.

“My sense is that the Lee administration will look for top talent and let quality drive their hiring decisions. But having some ties to Tennessee will be a huge bonus,” said Shaka Miller, state director of the American Federation for Children, a group that Lee has supported and that backs a “school choice” agenda, including charter schools and voucher-like programs.

Qualities and qualifications

On the campaign trail, Lee pledged to hire the most talented and qualified people for his administration.

Arnold adds: “He’s looking for those who share his vision in making Tennessee a national leader, while also ensuring geographic and individual diversity.”

While she declined to discuss names, Lee has sought advice from two superintendents from West Tennessee — Dorsey Hopson in Shelby County and Marlon King in Fayette County — both of whom were on a 72-person campaign list of Tennesseans who supported or advised him on education.

PHOTO: TN.gov
Dorsey Hopson is superintendent of Shelby County Schools, Tennessee’s largest district.

Hopson’s backing of the millionaire Republican candidate from affluent suburban Williamson County raised eyebrows — and some fury — among his mostly urban Democratic district in Memphis, which has the state’s highest share of impoverished students.

Hopson told Chalkbeat at the time that he was “not angling for a job,” but rather that he and Lee had developed a mutual respect while getting to know each during the last year and a half.

“We routinely discussed faith, family, government, and education issues,” said Hopson, a lawyer who has headed Tennessee’s largest district since 2013. “I appreciated the thoughtful and humble way that he sought my input.”

Asked last week about Hopson, Lee told Memphis TV station Local 24 News that he hadn’t spoken with the superintendent specifically about his administration but added: “He has a role. We talk. We’ve become friends. I have a great deal of respect for his expertise.”

Hopson would have to take a pay cut, however, if Lee offered and he accepted the commissioner’s job. As superintendent, he makes $285,000 a year. The salary for the state’s education chief is $200,000.

Follow the ratings

Illinois education officials laud their school ratings — but critics say they don’t go far enough

Illinois rolled out its new school accountability system in the Illinois Report Card late last month.

State education officials publicly lauded their new school rating system Friday, even as a new, nationwide analysis of school improvement plans criticized Illinois’ approach as too hands-off.  

While the state developed a clear rating system as the federal government requires, Illinois falls short in follow-through, according to the report from the Collaborative for Student Success, a non-profit advocacy group, and HCM Strategies, a policy analysis group.  

“The state is taking too limited a role in leading or supporting school improvement efforts,” said the report, which examined how 17 states are implementing school improvement plans under the federal Every Student Succeeds Act, which was passed in 2015 and replaced the No Child Left Behind Act.

Both those federal laws task states with identifying and helping improve underperforming schools and with creating criteria to judge which schools are doing well. Illinois rolled out its new school accountability system in the Illinois Report Card late last month.

State officials disagree with the criticism.

“Illinois is being held up as a model for other states to follow,” said Ralph Grimm, chief education officer of Illinois, speaking at the monthly state board of education meeting on Friday. “The entire (state) team has to be commended for providing useful information.”

Illinois’ rating system places every public school in the state into one of four categories based in part on scores on the annual PARCC standardized tests (click here to see how Chicago schools ranked).

Only about a third of Illinois students scored proficient or higher on PARCC tests administered last spring. In reading, 37 percent of students in grades 3 through 8 met that benchmark, while in math 31 percent did. Despite that, the state awarded 80 percent of its schools a “commendable” or “exemplary” rating. 

The state labeled 20 percent of schools “underperforming” or “low performing,” the only designations that could trigger state action. Intervention measures include improvement plans, visits from specialists, and additional funding.

The state released its ratings just days after Chicago released its own batch of school ratings, which take into account a different set of metrics and a different standardized test.

Grimm said the next step will be asking the state’s lowest-performing schools to draft improvement plans and then connecting them with experts to implement their changes.

The state ratings pay particular attention to how schools educate certain groups of students — such as children of color and English language learners. Improvement plans will focus on ways to raise their achievement levels.

Under the latest state rankings, nearly half of Chicago schools failed to meet the state’s threshold for performance, with a disproportionate number of high schools on the low-performance list. Nearly all of under- and low-performing Chicago high schools are on the South Side and sit in or border on the city’s poorest census tracts.

The state could grant underperforming schools $15,000, and  the lowest performers can apply for $100,000 under its IL-Empower program — which helped schools improve by funneling federal funds to them. Advocates have welcomed the change to a carrot to help schools pull themselves up, after years of sticks that overhauled and cut funding for low-performing schools.

Nationally, the Collaborative for Student Success report applauded Colorado for its streamlined application system, and Nevada for asking districts to directly address equity.

The collaborative criticized Illinois for failing to involve parents and community members in its plan. The group also said the state needs to give districts more guidance on putting together school improvement plans.