It is important to know where you have been in order to know where you are going. The student pictured is a client. He is a Denver Public School (DPS) student, diagnosed with autism. In 2011 the student was assigned to an affective needs (AN) center program. The AN program is said to be designed for students with emotional disabilities, not students with autism, intellectual disabilities, other health impairments (e.g. ADHD) or other disabilities.
Each day, the bus ride home for the student was 45 minutes. One day he started crying “it’s too long”, got out of his seat and kicked the paraprofessional on the bus. The bus was minutes from the parents’ home, but the driver turned the bus around and returned to the school. The principal called the police and then the parents. When the parents arrived, their young child was in handcuffs. The police said that they could not take the handcuffs off, they loaded him into the police car, and because of his young age, drove him the hospital; they removed the handcuffs once he was in the care of a doctor. AdvocacyDenver worked with the family and district and the student was moved to a program designed for children with autism.
In 2011 and today a disproportionate number of Black male students are placed in the DPS AN center programs. AdvocacyDenver tried to work for systemic change with each superintendent and each special education director. We saw momentum in 2020 when the District initiated Project DISRUPT as a means to dismantle institutionalized racism. In the fall of 2020, DPS forwarded the following Problem Statement to district/school staff:
Affective Needs Center based programming is one of our most glaring examples of institutionalized racism with Denver Public Schools, which disproportionately impacts Black male students. In order to break historical and contemporary patterns of inequity, this system needs to be abolished, and we must reimagine how we serve Black students with known and suspected disabilities by designing and committing to the implementation of anti-racist, anti-ableist policies, structures, and mindsets.
The special education director promised systemic change. The project was established in 2020 and shut down June 2021. No steps were taken to resolve admitted issues of race and disability discrimination. Then and now the district admits that Black students are consistently overrepresented in AN center programs. AdvocacyDenver exhausted school and administrative remedies to try to resolve issues. AdvocacyDenver forwarded and resolved formal and informal complaints on behalf of individual students; however, outcomes did not result in systemic change.
On August 2, 2021 AdvocacyDenver filed a complaint of discrimination with the U.S. Department of Education, Office for Civil Rights. The complaint was accepted, the investigation is pending.
On March 24, 2022, AdvocacyDenver filed a state-level complaint against Denver Public Schools on behalf of parents of Black students identified as children with a disability under the Individuals with Disabilities Education Act (“IDEA”) and placed in affective needs (“AN”) programs. The State Complaints Officer determined that AdvocacyDenver identified five systemic allegations subject to the jurisdiction of the state-level complaint process under the IDEA and its implementing regulations. Due to the significant number of identified Students and the voluminous documentation required to resolve the systemic allegations, the State Complaints Officer extended the 60-day investigation timeline due to exceptional circumstances. The decision was issued September 7, 2022.
- Conclusion to Allegation No. 1: District systematically failed to conduct comprehensive evaluations or make appropriate eligibility determinations for Students, in violation of 34 C.F.R. §§ 300.304 and 300.306(c).
- Conclusion to Allegation No. 2: District systematically failed to educate Students in their least restrictive environment, in violation of 34 C.F.R. § 300.114. District also systematically failed to ensure Students could participate in nonacademic and extracurricular activities to the greatest extent possible, in violation of and 300.116 and ECEA Rule 4.03(8)(a) and 300.117.
- Conclusion to Allegation No. 3: District included Parents in discussions about placement changes, consistent 34 C.F.R. §§ 300.116(a)(1) and 300.327. However, District systemically failed to issue prior written notice of placement changes, in violation of 34 C.F.R. § 300.503.
- Conclusion to Allegation No. 4: District failed to ensure teachers at two AN programs and (District) Facility School possessed required certifications and licenses, in violation of 34 C.F.R. § 300.156 and ECEA Rule 3.03.
- Conclusion to Allegation No. 5: District systematically failed to develop, review, and revise IEPs tailored to Students’ individualized needs, in violation of 34 C.F.R §§ 300.320(a)(2), 300.324(a), and 300.324(b)(1)(ii)(A).
The State Complaints Officer provided the district a long list of corrective actions and the timeline for completing those actions. The Decision, when published can be found at: https://www.cde.state.co.us/spedlaw/decisions
The decision is far reaching and provides a long list of corrective actions including training facilitated by Colorado Department of Education to all special education leadership (e.g. Executive Director, Directors, Managers or any other central District staff who support building leaders at schools with AN programs), school building leaders at with AN programs, AN Program Teachers, Facility School Teachers and School Psychologists and Social Workers who support these programs.
No doubt, the Superintendent will honor the order issued by the State Complaints Officer. We are all lifelong learners, and we are certain that the training will be welcomed by many; the training will offer staff additional tools needed to appropriately serve marginalized communities of learners. Now that we have talked about where we have been, looking forward, professional development cannot and should not be a one-time activity. Denver Public Schools Superintendent has the opportunity to make a decision that will serve students well into the future. The Superintendent can honor school autonomy on some matters, but firmly forward a culture/procedures that demand professional learning and compliance when it comes to Individuals with Disabilities Act, Title VI of the Civil Rights Act of 1964, Civil Rights Act, Section 504 of the Rehabilitation Act, Title IX of the Education Amendments of 1972, Title II of the Americans with Disabilities Act and Denver Public Schools’ Consent Decree.