A U.S. Department of Justice lawsuit alleging that Georgia students with behavior problems were sent to segregated and inferior educational programs is on hold while an appeals court considers a fundamental issue: Is the federal government legally allowed to file such cases?
The pause also comes as some disability advocates question whether the current Justice Department will be as aggressive as the Obama administration had been in pursuing such claims.
Attorney General Jeff Sessions, when he was still a U.S. senator from Alabama, said the federal law covering the education of individuals with disabilities allows students to misbehave “with impunity.” The Senate had not confirmed a head of the Justice Department’s civil rights division as of late last week.
The Justice Department lawsuit predates the Trump administration, though it will be on the hook to follow through.
The suit was filed in August 2016 against the state-run Georgia Network for Educational and Therapeutic Support, or GNETS. The GNETS program enrolls about 5,000 students ages 3 to 21.
The Justice Department claims that the students’ rights under Title II of the Americans with Disabilities Act were being violated because the “vast majority” are being unnecessarily segregated from their peers. Title II of the ADA prohibits discrimination on the basis of disability in services provided by state or local governments. Other parts of the ADA deal with employment and with public accommodations.
But just a month after the Justice Department filed its legal action, a Florida district judge in another case ruled that the federal government doesn’t have authority to bring a lawsuit under Title II of the ADA.
That Florida case also raised the specter of unnecessary segregation. The Justice Department had sued the state, based on its investigation, which showed that nearly 200 children with severe disabilities were being institutionalized in nursing facilities with little access to family or education.
U.S. District Judge William J. Zloch, however, dismissed the case in September 2016. He said that only the person alleging discrimination has the authority, or “standing,” to file a lawsuit.
The Georgia Network for Educational and Therapeutic Support, which enrolls about 5,000 students ages 3-21, has been criticized by state and federal agencies. A federal lawsuit alleging that GNETS is in violation of the Americans with Disabilities Act is on hold.
October 2010: The Georgia department of audits and accounts finds that GNETS cannot demonstrate that its services improve behavior or academic performance of the children enrolled.
July 2015: The U.S. Justice Department alleges that GNETS students were unnecessarily segregated from their peers in inferior schools.
July 2016: The state closes nine dilapidated GNETS facilities.
August 2016: The Justice Department files a lawsuit against the state, saying the program is a violation of students’ rights under Title II of the ADA.
September 2016: A judge in Florida rules in a different case that the Justice Department does not have the authority, or standing, to file lawsuits under the section of the ADA cited in the GNETS action.
June 2017: The Georgia board of education adopts new rule clarifying the purpose and function of GNETS.
August 2017: The judge overseeing the GNETS lawsuit issues a stay until the Florida case works its way through appeals
Source: Education Week
The lawyers representing the Florida students filed an appeal to the U.S. Court of Appeals for the 11th Circuit, which includes Georgia. Judge Eleanor Ross, who was hearing the GNETS case, on Aug. 11 issued a stay until that appeal is resolved. (Similar cases in other circuits would not have to follow the 11th Circuit’s eventual ruling on this issue.)
The GNETS case is still in its early stages, and Ross said the parties could still try to come to agreement on their own. But the filings in the case suggest the parties were still far apart on the issues. Georgia’s response to the lawsuit says the federal government seeks to substitute its judgment for that of educators who work directly with these students. “No reasonable reading” of the ADA supports such a move, the state argues.
A spokeswoman for the Georgia department of education declined to comment on Ross’s decision to place a stay on the case.
Tackling the Issue
Mark Murphy, who has represented individuals with disabilities and advocacy organizations for three decades, says he’s pessimistic that the new administration will tackle these particular issues in the same way the Obama administration had.
The Justice Department under Obama offered statements of interest in disability discrimination cases. And in 2014, it entered into the nation’s first statewide settlement agreement, with Rhode Island, after it determined that the state, including a program for intellectually disabled students in Providence, was segregating its residents in sheltered workshops.
“From our point of view, to their credit, they were very strong,” said Murphy, who is the managing attorney for the Bazelon Center for Mental Health Law. “It would be great if that were to continue, but I’m not optimistic.”
The Justice Department did not respond to requests for comment on its enforcement priorities. When the Florida case was dismissed last year, a Justice Department spokesman under what was then the Obama administration told the legal website Law360 that the opinion “is directly at odds with the language of the ADA as well as decades of case law.”
Awaiting a Decision
Eric Dreiband, the Trump administration’s nominee to head the civil rights division, has a background in defending companies against discrimination claims. Attorney General Sessions, in an address to the Senate in 2000, said that the regulations around the Individuals with Disabilities Education Act were “accelerating the decline in civility in discipline in classrooms all over America.”
Tim Schwarz, a special education attorney in Atlanta, supports the Justice Department’s aim with the GNETS lawsuit, but said he had not expected change to come quickly.
“The stay doesn’t make things better, but it doesn’t make things worse,” Schwarz said. “Lawsuits like this take an extraordinary amount of time to make any productive change.”
A version of this article appeared in the September 13, 2017 edition of Education Week as Spec. Ed. Facility Case Now in Legal Tangle