By Emma Brown
August 5, 2015
|U.S. Attorney General Loretta Lynch speaks in June.|
The Justice Department has accused Georgia of segregating thousands of students with behavior-related disabilities, shunting them into a program that denies them access to their non-disabled peers and to extracurricular activities and other basic amenities, including gymnasiums, libraries and appropriately certified teachers.
The department’s years-long inquiry into Georgia’s programs, and the pressure it is now putting on state officials to revamp the way they educate students with disabilities, have brought hope to advocates in the state who have long tried unsuccessfully for change.
But the department’s legal tack in the Georgia case is a sign that it is expanding an important civil rights approach into the education arena, a move that is likely to have implications nationwide, experts say.
Justice did not investigate Georgia’s lapses under the nation’s main law for protecting the interests of special education students — the Individuals with Disabilities Education Act, or IDEA. Instead, the department focused on the state’s failure to comply with the Americans with Disabilities Act, a much more powerful civil rights tool, according to legal experts.
Advocates believe that Justice’s use of ADA to press for desegregation of the Georgia program, coupled with case law emerging from courts in the past several years, will force many school districts to reexamine whether they are unlawfully segregating students with disabilities. They say it also will push schools to set a higher bar for the education that those students receive.
“For a long time we have created these segregated, separate programs,” said Alison Barkoff, director of advocacy for the Bazelon Center for Mental Health Law, who oversaw Justice’s ADA work from 2010 to 2014. “I think with the right services and supports, we can support kids with disabilities to be in their neighborhood schools and in general ed classrooms for the overwhelming majority of their days.”
IDEA was passed in the 1970s as a way to open the schoolhouse door to children with disabilities. It says that children with disabilities are entitled to an education, but it doesn’t promise much in terms of the quality of that education, Barkoff said. “Frankly, it’s a pretty low floor compared to ADA,” she said.
The ADA, which just turned 25, requires schools to provide people with disabilities with an education and with educational opportunities that are equal to that of their non-disabled peers. It also prohibits the unjustified segregation of people with disabilities.
A school district can be compliant with IDEA but still fall short of the civil rights guarantees in ADA, the Justice Department argued successfully in a case before the 9th Circuit Court of Appeals.
“The ADA serves as a powerful tool to open doors to persons with disabilities,” said Eve Hill, Justice’s deputy assistant attorney general for civil rights. “Promoting inclusive learning environments for students with disabilities reflects the importance of having children learn and play together, so that they can be prepared to live and thrive together.”
Special education advocates in Georgia have long said the state’s program for children with behavior-related disabilities unnecessarily segregates them into inferior buildings with inferior educational opportunities.
Under IDEA, advocates have successfully argued that individual students should be removed from the program, the Georgia Network for Educational and Therapeutic Support (GNETS). But as its name suggests, IDEA is focused on individual students, making it a weak tool in pushing for systemic change, advocates say.
For example, IDEA requires students to be placed in the “least restrictive environment” — or least segregated environment — where their needs can be met. In Georgia, advocates said students with behavioral disabilities were sent to the segregated GNETS program often because neighborhood schools lacked the supports and services those students required.
So the services provided to GNETS students may have been meeting the requirements of IDEA. But at the same time, those same students’ civil rights were violated because they did not have access to the equal educational opportunities guaranteed under ADA, according to the Justice Department.
The state’s 5,000 GNETS students, spread among 24 regional centers, are mostly taught via computer programs instead of by certified teachers, according to Justice. Many of the GNETS centers are housed in poor-quality facilities once used as schools for black children during the days of Jim Crow. GNETS students report feeling as if they are in prison, separate from their peers and without access to athletics or clubs.
One parent described it as “a warehouse for kids the school system doesn’t want or know how to deal with,” according to Justice.
Leslie Lipson, an attorney for the nonprofit Georgia Advocacy Office, said she was thrilled by the Justice Department’s inquiry and hopes that the push to desegregate students with disabilities will help create schools that are more equipped to serve all students.
“What I’m really hoping for five years down the road is, as we learn how to support kids with behavioral disabilities, that it increases our capacity to welcome everyone at school,” she said.
“There are tons of kids who have experienced trauma, who have lost a parent — all sorts of different reasons that might have significant behavioral challenges, and to have teachers and structures that can meet those children’s needs is important...”
Justice outlined the findings of its GNETS inquiry in a July 15 letter to Gov. Nathan Deal and Attorney General Sam Olens and called on state officials to desegregate the decades-old program or face legal action.
A spokesman for Deal referred questions to the state education department. Education officials referred questions to Olens, the state attorney general.
Daryl Robinson, a spokesman for Olens, said that his office has “been in contact with the Department of Justice since receiving the letter, but we have not responded formally in writing. For the time being, we do not intend to comment further on this matter.”
Emma Brown writes about national education and about people with a stake in schools, including teachers, parents and kids.