Editor’s Note: Around the country, families and advocates have had to resort to class action lawsuits to push states and districts to do right by children with disabilities. In this essay, lawyer and advocate Jennifer Coco shows why it takes more than lawsuits to get children with disabilities the education they deserve, and how public transparency and family partnership must persist when courts decide to step back from enforcing the law.
Ten years ago last month, a team of advocacy organizations filed the New Orleans special education lawsuit (P.B. v. White) in federal court. The class-action suit laid out the harms caused by the Louisiana Department of Education’s failure to deliver special education services to students with disabilities as required by the federal Individuals with Disabilities Education Act (IDEA). Ultimately, the case resulted in a still-active consent judgment that provided federal oversight over special education in New Orleans.
As a member of the team that filed and litigated the lawsuit, and as class counsel until 2018, I’ve spent a decade enmeshed in local issues of special education and have seen firsthand what has worked and what hasn’t. Faced with the court’s public consideration of dissolving the consent judgment and the challenge of delivering special education services during the COVID-19 pandemic, these lessons feel especially relevant.
- Lawsuits Are a Last Resort
Lawsuits are not a panacea. Class action challenges against school systems for deficient programs are difficult to mount, let alone sustain, especially when it comes to special education. The IDEA is explicit that it wants to see disputes resolved through teamwork, negotiation, conflict resolution, and communication between parents, teachers, and administrators.
And legal action comes with a steep price. The New Orleans special education lawsuit has led to incredible systemic reforms for children in our city. But the ten years spent fighting for and implementing the consent judgment represent most of a child’s K-12 education. And for some of the lawsuit’s plaintiffs, the reforms didn’t come in time.
I wish we could have ensured that each of the thousands of children impacted by the consent judgment saw even some change in their individual education. But that’s not how consent judgments work. You prioritize big picture reforms for the greater good of all.
- Maximizing Outcomes for Students with Disabilities Demands Teamwork
The entire premise of our federal special education laws is that adults work together to create good programs for students with disabilities and assess and amend these programs at regular intervals. But teamwork can’t be limited to the school building.
Schools must treat families as equal partners – listening to concerns, demystifying complicated pedagogical approaches, and hearing their feedback on what works at home. And educators must bring families into the IEP process. Handing them a prefilled form to sign (which is illegal, but happens all the time) doesn’t count.
Policy improvements also require cooperation. As a member of the committee that vetted New Orleans’ Differentiated Funding Formula, which allocates funding based on need, I shifted from being an adversary to partnering with school system stakeholders. It taught me volumes about what we can achieve when we negotiate and listen, even if we need to overcome existing distrust.
- A Culture of Transparency and Continuous Improvement Leads to Results
The most important lasting outcome of the consent judgment is the proactive, routine monitoring of New Orleans’ special education programs, and the transparency that has come with it. As comfort with this practice grows, schools are both admitting when their special education programs need work and accepting that they will be monitored and given feedback. Additionally, there is greater public awareness about schools’ special education programs.
This acceptance and transparency are essential. The lawsuit was necessary in part because local stakeholders refused to acknowledge the systemic problems with special education—even while a breakdown in important monitoring systems meant that issues were going unresolved.
Further, all levels of education bureaucracy must engage in the Continuous Improvement & Focused Monitoring Systems that special education law requires. It’s not sexy stuff, but it’s essential. It sets the expectation that everyone’s special education programs are a work in progress, that we will root out weaknesses in our special education programs, develop plans to improve them, and do so in a transparent way that includes compensatory services to students who lost out.
Being placed on a corrective action plan is painful, and it results in a lot of hard work for schools. But moving forward with corrective action is far preferable to hiding poor practices in the shadows.
No matter the future of the consent judgment, New Orleans has come too far to lose momentum now. We must maintain our citywide commitment to continuous improvement and transparency. Only through a cooperative approach can we improve the education of students with disabilities.