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Romer soon apologized for the comments. Later, the ACLU‘s Rosenbaum a also apologized, at a point when, in frustration, he called for Romer’s removal.
Such back-and-forth shows how relations have deteriorated since April 1996, when both sides put acrimony and litigation aside in signing the consent decree. For its part, the district admitted, in the face of voluminous evidence, that its special-education programs and practices were substandard and frequently illegal. As a remedy, both sides developed a reform process that included input from the district, parents, teachers, experts and advocates. The whole setup is overseen by two independent administrators and, if necessary, judicial review.
Each side got to pick one administrator, who had to be approved by the other side. Louis S. Barber was the district pick; Mary Margaret Kerr was the selection of advocates. Over the last year, district officials have soured on both of them.
In court filings, the district questioned the neutrality of Kerr and Barber. Officials also complained about their cost. Each bills the district based on hours worked. Barber got $353,000 last year, according to the school district. Kerr received $264,000. Superintendent Romer, by contrast, is the district‘s highest-paid salaried employee, at $250,000 a year. All told, Barber has received $1.76 million and Kerr $1.24 million, while outside attorneys have collected $2.1 million over the life of the decree. All told, district officials claim they’ve had to spend more than $100 million on decree-related expenses. The school district also has spent an unspecified six-figure amount to escape the decree. At court on Monday, the district was represented by a phalanx of three law firms in addition to staff counsel.
From Romer‘s standpoint, this latter expense was an investment in efficiency and authority that could, in the end, yield more services to the disabled, or add revenue to the general-education program. Romer’s also under pressure to find money for another teachers‘ raise. The consent decree, in effect, keeps one out of every six general-fund dollars out of his direct control.
“Roy Romer is putting this school district back on the right track,” said Kwalwasser. “Roy Romer wants to manage the district. And he wants to be held accountable. He needs some freedom and latitude.”
Districtwide, the cost of actual special ed has climbed steadily, from $608 million the year before the decree to $1.072 billion today. Some of that rise is due to larger enrollment and increased state funding. And, of course, the district also had to catch up for years of neglect.
Judge Lew denied the district’s request to replace Barber and Kerr by a single “special master” with a more limited role. The district, wrote Lew, “has failed to prove by clear and convincing evidence” that Barber and Kerr “failed or refused to perform . . . duties under the terms of the Consent Decree or that there has been any misconduct.”
Even so, it‘s easy to see why district officials chafe at the high costs, especially because they are hamstrung in their ability to hold these expenses down. Special education is a drain on all school districts because it’s not fully funded by the state or federal government, and the decree only adds to this burden. But then, the district created this dilemma by mishandling disabled students in the first place. And Romer is hard-pressed to prove that things would be better this time around if the decree were lifted.
“The school district was out of compliance for generations,” said the ACLU‘s Rosenbaum. “And the district is still failing to give kids the basic services,” such as a teacher trained to work with disabled students. “We’re not asking for anything the law doesn‘t require.” If the district corrected the problems, he said, “The consent decree would go away tomorrow.”
Well, not quite. The actual deal is that three years of legal compliance are needed to end the decree. Kwalwasser worries that the decree could prove virtually immortal as well as eternally expensive: “The process is a disaster, and the product is an equal disaster.”
It also remains the law of the land, now that Romer’s gambit has failed. Both sides still have the task of making sure that students don‘t lose out. Rosenbaum said his side is ready, a sentiment echoed by Kwalwasser: “We’re going to have to live with this, and we‘ll do our best.”
Dennis Dockstater contributed to this article.