Civil rights strictures: Means to enforce rights for special needs students?

By Patrick B. McGuigan and Stacy Martin

Published: 04-Dec-2010

Oklahoma public schools which violate the civil rights of students risk losing federal education funds, U.S. Department of Education official Jim Bradshaw told CapitolBeatOK recently.

That information may be of particular interest to advocates of, and families with, special needs schoolchildren  — the beneficiaries of a new state law intended to improve their educational options. While state money is involved in the new statute, federal civil rights provisions could still apply.

Complaints about civil rights violations in public schools can be filed at no cost – the process is free, anonymous and can take as little as six months. However, a complaint must be filed within six months of the alleged civil rights violation.

“Anyone may file a complaint of discrimination, even if they, themselves, are not the ‘injured party,’ ” Bradshaw explained.

Six school districts in the Tulsa area, all advised by a controversial law firm whose fees are under scrutiny from budget-watchers, are so far refusing to recognize the law.

Under the new provision, and arguably under existing federal provisions, when special needs children transfer out of a district, they take with them the state public school funding from the school they are departing. In short, the money follows the child.

In recent news accounts, one Owasso family said they believed their only alternative, in light of the intransigence of the local school board, might be a lawsuit.

If the state of Oklahoma were to sue to force districts to implement the law, it would amount to the state suing itself. And, the outside private law firm in Tulsa could collect fees defending at least some of those districts, as was the case in earlier charter school litigation.

In an interview, Bradshaw said he could not comment on alleged acts of discrimination, or on whether or not Oklahoma’s recent special needs developments and any efforts to impede the new law might qualify as civil rights violations.

“Each case is different, and we would need to conduct an investigation of any alleged discrimination, examining all of the relevant facts and circumstances before making any determinations,” he told CapitolBeatOK. “We can tell you, however, about the laws we enforce and our complaint process. Two of the five laws deal with disabilities.”

He cited those laws as:

– Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in all programs or activities that receive Federal financial assistance.

— Title II of the Americans with Disabilities Act of 1990 prohibits discrimination by public entities on the basis of disability.

He said the process under the law is free, anonymous and that often, a resolution is reached in six months, although complex cases may take longer. The federal web site stresses any complaint must be filed within six months of the alleged infraction.

These provisions in federal law repeatedly refer to the alleged perpetrator as “the recipient,” a reference to the government agency/school district as the recipient of federal education money. It further provides if the matter is resolved in complainant’s favor, and a federal funding recipient persists in the objectionable behavior, the recipient is subject to termination of federal education funding or referral to the U.S. Department of Justice.

In June, Oklahoma Governor Brad Henry signed into law the Lindsey Nicole Henry Scholarship for Students with Disabilities Act, giving to families with disabled children already in public setting an expanded option of school choice (including access to private providers of educational services) – along with the public funding allocated to their individual benefit.

Previously, disabled students were entitled only to utilize public school funding to attend neighborhood schools, just like able students, or schools chosen for them by public school employees. If they felt school services were inadequate, they were left them with the option of attending private schools at full, personal expense. The money did not follow them. In the new Oklahoma law, the state money does.

The law was hailed as a breakthrough for a student subset, arguably most in need, but least able to access more tailored, effective education opportunities for their kids. Families with autistic children and many advocates for such children vigorously supported the new law.

A SoonerPoll focused on the issue and taken this fall found a majority of Oklahomans wanted to see the law enforced until or unless it is reviewed by the courts.

State Rep. Jason Nelson of Oklahoma City and state Sen.Patrick Anderson of Enid wrote the law. Co-sponsors were State Reps. Jabar Shumate and Anastasia Pittman of Tulsa and Oklahoma City respectively.
Oklahoma City Republican Sally Kern, a leading “social conservative” also supported the move. Bipartisan support characterized the measure in the state House of Representatives, whereas the matter was, in the end, polarized along partisan lines in the state Senate.

However, the measure gained the “vetting” and support of Democrats known as public school advocates, Schools Superintendent Sandy Garrett and Governor Brad Henry.

In recent months, distraught parents have contacted media, telling often-harrowing stories of their children receiving poor or inadequate opportunities — and even abuse in certain state public schools.

Since the Henry Scholarship Act passed, six school districts in the Tulsa metropolitan have publicly declared they will not implement the law.
Those districts fully defiant of the law are Owasso, Jenks, Union, Bixby and Broken Arrow; additionally, the Tulsa school district began processing early applicants but barred later families hopeful of the benefit.

Several were advised by outside legal counsel, the private Tulsa law firm of Rosenstein Fist Ringold. The firm is also at the center of a long-running investigation of Broken Arrow school district finances.
The law firm’s web site says it represents 300 of Oklahoma’s roughly 500 public school districts. It is unknown whether other school districts represented by the firm will follow the Tulsa area schools’ lead.

The size of Oklahoma’s current disabled student population is unknown, but a published, 2008 Cornell University study said that then, four percent or about 39,000 of Oklahoma public school students ages five to 15 were disabled. The most prevalent disability: cognitive challenges. Rep. Nelson has said as many as 96,000 students could qualify, but the experience in other states hints a much smaller number would actually apply for the new benefit.

For details on the U.S. Department of Education’s complaint process, visit relevant web pages.

Stacy Martin is editor of The City Sentinel, a weekly newspaper in Oklahoma City. McGuigan is editor of CapitolBeatOK.