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The $1 Billion Rumble 

L.A. Unified loses court battle over control of its programs for the disabled

Wednesday, Sep 26 2001
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In a sweeping rebuke, a Los Angeles federal judge has rejected the city school district‘s attempt to retake control over programs for students with disabilities. At stake are services for 83,000 students -- about 12 percent of district enrollment -- and district funds totaling $1.1 billion.

The district had lost full authority over its special-education division in 1996, as a condition for settling a lawsuit filed on behalf of Chanda Smith and thousands of other disabled students by a consortium of attorneys. The settlement became known as the Chanda Smith Consent Decree, and it established a court-monitored reform process. At the time, it was hailed as a landmark achievement. Now the school district wants out.

For Superintendent Roy Romer, the court challenge was an unabashed gambit consistent with his style of wanting to be the manager in charge. If he’d prevailed, he‘d have obtained control of a billion-dollar program, with the chance to use some of that money for other district priorities. Advocates for the disabled, some of whom are paid by consent-decree funds, were wary of this possibility. They contend that Romer’s administration has undermined special-ed reforms already in place.

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The school district filed court papers seeking to end or amend the decree on August 15, and from the start, the arguments on both sides embodied a strange backward quality. The advocates -- who include lawyers, parents and volunteers -- typically claim that district services are deficient, because the advocates are trying to help students seek better or different placements. This time they found themselves changing tack, by filing declarations portraying progress -- more disabled students are learning successfully in regular classrooms; more of them get proper education plans, and in a more timely manner. The students they represent encompass a broad range of disabilities -- from mental to physical handicaps, from speech problems to severe autism. Things had been getting better, said advocates, until last March, when the district stopped cooperating.

Conversely, the school district contended in court papers that it did a poor job of educating disabled students -- for which LAUSD blamed the consent decree, which it characterized as cumbersome, expensive and ineffective. Officials insisted that meaningful parent input has been routinely ignored, while at another level, parents became an obstacle -- by serving on committees that dictated edicts to district staff.

“Parents are a valuable resource,” said district General Counsel Hal Kwalwasser, “but they are not there to tell us how to recruit teachers, how to prepare evacuation plans for our buses, how to draft a funding statement for the state. These parent committees want to do all of that.”

The program guidelines that resulted, he said, were complicated, internally contradictory, and even at odds with state and federal law, which, broadly speaking, mandates that disabled children receive a free and appropriate public education. One result is that principals and teachers have focused on checklists and paperwork at the expense of helping students.

“The committees at times mandated solutions regardless of cost, even where other solutions that were less expensive and burdensome would have worked,” added Kwalwasser. “Management by committee is fundamentally dysfunctional. It is not the way anybody in any business school in America would say that you manage a billion-dollar-a-year enterprise.”

This analysis couldn‘t be more wrong-headed, in the view of attorney Mark Rosenbaum of the American Civil Liberties Union, which is a party to the consent decree. “What the experts found five years ago is that parents had not been part of the process. They were not informed of their rights, nor were their views of concern to the district.” The district wants to gut accountability, he added. No longer would parents and advocates help develop procedures, review programs and field complaints. Without that, he said, nothing would stop the district from returning to its bad old ways.

Chanda Smith herself was a district student with a treatable learning disorder that was never adequately treated, despite her mother’s requests for help. As a result, she reached high school with second-grade skills.

“When the district complains about money being spent for psychologists and curricular materials,” added Rosenbaum, “it is pitting special education against general education in a zero-sum equation that is counterproductive. There has certainly been an increase in spending due to the consent decree, but that is ultimately because the district was not treating these kids equally. All this decree is saying is that the district must come into compliance with the law.”

U.S. District Judge Ronald S.W. Lew sided with the advocates. If the district doesn‘t like something, he wrote in this week’s ruling, the decree itself has due process for addressing the issue.

Soon after taking the district helm in July 2000, Romer commented in an address to administrators, “You do a lot of paperwork that I think is nonsense. Now I really mean that. And we‘ve got to change it. A lot of it’s legal, by the law. Some of it‘s a court decree. But we’ve got to fight it. We‘ve got to change it, and we can.”

He added, “Chanda Smith, I’m learning about this. I thought it was some form of worship. I thought it was a new god for a while. When I was a kid, I got some of my entertainment watching the evangelicals from Southern California on television . . . Let me say, I respect the thing they‘re after, and that is we haven’t done a good job, and we know that. We need to do that. But we can‘t get all this micro-management. It reminds me of Gulliver and the Lilliputians. Got all these ropes on you. We’ve got to get some of those ropes off.”

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.

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