The Justice Department’s recent scathing letter to Georgia alleging discrimination at a statewide network of alternative schools is the latest example of the government’s willingness to use a muscular interpretation of the Americans with Disabilities Act to eliminate what it views as segregated school settings.
Six years ago, the Justice Department signaled its intent to aggressively enforce Olmstead v. L.C., a seminal ruling for disabilities rights. That 1999 U.S. Supreme Court decision requires public entities to provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”
The 25-year-old ADA is an expansive civil rights law that prohibits discrimination on the basis of disability in public accommodations. In contrast, the Individuals with Disabilities Education Act spells out schools’ obligation to provide special education services to qualified children.
The Justice Department’s target in this latest case is the Georgia Network of Educational and Therapeutic Support, or GNETS, which is accused of violating the rights of students with behavioral disabilities by shunting them to inferior educational settings for infractions that could be handled by their home schools.
Those students can end up languishing for years in programs housed in separate buildings or in separate wings of regular schools, the department said in its July 15 letter. It warned of a lawsuit if the issues could not be resolved cooperatively.
Georgia has not responded publicly to the letter, but the Georgia Department of Education and the state attorney general’s office have been preparing for a meeting with Justice Department officials, said Matt Cardoza, a spokesman for the Georgia education department, in an email.
"[L]et me assure you that [the state department of education] is committed to working diligently and cooperatively with others and DOJ in an effort to address any issues that may need to be resolved in a manner that is in the best interest of Georgia’s students,” he said.
The director of one of the network’s programs said the Justice Department failed to take into account program improvements and student success stories.
The U.S. Department of Justice is accusing the Georgia Network for Educational and Therapeutic Support, or GNETS, of violating the Americans with Disabilities Act. It says the network of alternative programs for students with behavior-related disabilities unnecessarily segregates students from their peers and provides them with an inferior education. Among its concerns cited in a letter to the state of Georgia, the department says that:
• High school students in the program often receive only computer-based instruction, in contrast to their peers in general education classrooms.
• Students at all levels in the GNETS program often lack access to electives and extracurricular activities.
• Some centers are housed in poorly-maintained buildings that formerly served as schools for black students during the Jim Crow era.
• Most high school GNETS teachers interviewed by the department were certified only in special education and not trained to teach the specific subjects that they taught.
• The exit criteria developed for most students were considered “vague or boilerplate,” and often contained higher standards of behavior than would be expected of students in general education schools, effectively rendering students with behavior-related disabilities “stuck” in segregated programs.
Source: U.S. Department of Justice
“Districts would likely be unable to provide a program with as many supports and services as GNETS currently offers,” Cassandra Allen Holifield, the director of a program that serves suburban Atlanta, told Education Week.
In 2009, the 10th anniversary of the Olmstead ruling, the Justice Department said it would pursue invigorated Olmstead enforcement.
In some situations, as in Georgia and last year in Rhode Island, the department initiated its own actions. In Rhode Island, the United States entered into the nation’s first statewide settlement agreement after the Justice Department determined that the state, including a program for intellectually disabled students in Providence, was segregating its residents in sheltered workshops.
Other times, the department weighs in through a “statement of interest.” For example, the Springfield, Mass., school district is being sued under the ADA by parents who say that their children with behavioral disabilities are being kept in a segregated day school where they receive an inferior education and are denied access to nearly all extracurricular activities.
The Springfield school district has said the parents should have exhausted their remedies under the IDEA before filing a federal lawsuit alleging an ADA violation.
Wrong, says the Justice Department.
“While the ADA and IDEA provide complementary protections for many students with disabilities, they are not identical in purpose or scope and impose distinct obligations on school districts in furtherance of their respective statutory mandates,” the Justice Department wrote in an August 2014 statement of interest.
A school district can provide a “free and appropriate public education” as the IDEA requires, and still be in violation of the ADA, the Justice Department said at that time.
Lewis Bossing, one of the attorneys representing the Massachusetts families, says that the Justice Department’s new letter to Georgia represents an expansive interpretation of the Olmstead ruling.
“I think many advocates find the letter to be very exciting,” said Bossing, a senior staff attorney at the Bazelon Center for Mental Health Law in Washington. “I don’t think we’ve seen the Justice Department take a position as robust as this one in the past.”
It also sends a message to other school districts that have separate schools or programs that are only for students with behavior problems, Bossing said.
“This signals that we need to look at those facilities, and look at whether the students that are in them really need to be in there,” he said.
The recent Justice Department letter is not the first time that the Georgia network of schools has been scrutinized and found wanting. In 2010, state auditors investigated the program, funded at approximately $70 million a year. It found that only about 10 percent of the high school students in GNETS graduated in four years; students in the program scored well below other students with disabilities on state tests; and students spent an average of four years in the program, at a cost then of $56,000 per student. The state didn’t collect enough information to determine if GNETS is cost-effective, and didn’t have a way of tracking academic progress of its students, the 2010 audit said.
The Georgia education department took exception to many of that audit’s assertions. For example, it said that the state was about to start tracking the performance of GNETS students separately from the performance of students with disabilities overall. The department also said it disagreed with an implication that the students could be served in their local schools.
“Local school district [individualized education program teams] have determined that the programs provided by the GNETS program could not be provided by the local school districts,” the state said.
The audit focused primarily on the cost-effectiveness of the program. The Justice Department letter went into detail on the quality of the network itself.
Many of the center-based GNETS sites, it claimed, are housed in poorly-maintained facilities that were once all-black schools during the Jim Crow era. For programs that are in regular school buildings, the students are often kept completely isolated from their peers, to the point of entering through different doors, it said.
The high school students in GNETS get most of their education through computer-based instruction, and have no access to music, physical education, and other extracurricular activities, the Justice Department said. And, because behavior services are clustered in these separate programs, the local school districts’ ability to handle these students is undermined.
A Parent’s View
The concerns outlined by the Justice Department letter were familiar to parent Natasha Hall, who said she was interviewed by Justice Department investigators. Her 11-year-old son, Gavon, has attended a GNETS program since he was a kindergartner, and is now in 6th grade. He has been diagnosed with attention deficit hyperactivity disorder and a behavioral disturbance, Hall said.
She has filed several IDEA complaints against her local district, Cobb County schools, but has not been able to have her child moved back to his base school. He is struggling academically, even though he has been promoted each year. “They told me that academics did not matter—that this is a behavioral based program,” Hall said.
Private school is not an affordable option for her.
“I teach my kids, if no one else can fix anything, Mom can do it. And then you realize, you can’t,” said Hall, who lives in Marietta, Ga.
The Cobb district did not respond to an email seeking comment last week.
Holifield, the director of one of the state’s largest GNETS programs, strongly disputes the Justice Department’s claims.
“Without the GNETS program, there are many students who would be served in much more restrictive environments, including residential placements,” Holifield told Education Week in an email. She directs the North Metro GNETS program, which serves north Fulton and Gwinnett counties, both suburbs of Atlanta.
In the North Metro program, students have a chance to participate in extracurricular activities and they’re given an opportunity to transition back into their base schools, Holifield said. The program does not want to hold on to students the way the Justice Department asserts in its letter to the state, she said.
“GNETS has never been and will never be considered a permanent placement for the students we serve,” she wrote. “It is a collaborative effort to serve students within or very close to their home communities, and to offer the federal full continuum of services for students with special needs.”
A version of this article appeared in the August 26, 2015 edition of Education Week as Justice Takes Aim at ADA Violations In School Settings