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CPS tries to undermine disability rights law... Chicago Public Schools and the Corey H case

Rod Estvan - February, 2008

As some teachers are aware, back in 1992, when a teacher who is today thirty years old was only a sixteen-year-old in high school, the CPS got sued by a group of families of special education students. This group in the world of law was known as a plaintiff class and it represented the interests of fifty thousand plus students with disabilities enrolled in CPS. Jump cut to 1998 and we find the CPS settling this lawsuit and signing a Settlement Agreement with the attorneys representing the plaintiffs.

Jump forward one additional year and you have a federal Judge deciding after a trial that the Illinois State Board of Education (ISBE), who had also been sued by the same group and who did not settle, was effectively guilty of not making sure CPS educated students with disabilities whenever legally appropriate with their non-disabled peers as federal law required. Eventually ISBE also was required to develop a Settlement Agreement with the plaintiffs.

In the early days of the Settlement Agreements there was much optimism both on the part of CPS and the plaintiffs that individual school based plans developed pursuant to these Settlement Agreements would lead to much dynamic change that would benefit students with disabilities. Some outstanding plans were developed and real dollars to facilitate changes in how schools were servicing students were given out. Based on the rules of the Settlement Agreements overseeing all of these processes for the Court was an appointed Monitor, I was the first staff person hired by that Monitor and I continued in that role until May 2006.

Corey H problems begin developing

But within a short time problems began developing. For example part of ISBE’s Agreement required CPS, ISBE, and the plaintiffs to agree to establishing benchmarks and targets. One of those targets read that the parties were to establish “minimum and maximum parameters of the percentages of students with disabilities, who should be in attendance in any school, except those granted waivers by ISBE.” No agreement could be reached over this and other targets. By the rules of the Settlement Agreement because the parties could not come to an agreement, the Monitor was required to impose those targets on the parties by the middle of August 1999. The Monitor did his job and we developed a decision to impose those targets on the CPS.

None of the parties agreed with the Monitor’s decision in one way or another and all appealed the decision to the overseeing District Court Judge, Robert Gettleman. Fundamentally, the decision was upheld by the Court and the case continued. All the while this process was going on individual school plans and special education funds related to those plans were being submitted, reviewed, approved, modified, disapproved, or commented on by the Monitor’s Office.

Each plan, called Least Restrictive Environment plans, had outcome goals. These goals were related to training or various reconfigurations of special education services. There were thousands of dollars expended by schools in training and development related to the plans. At the end of the implementation period the Monitor’s Office, CPS Office of Specialized Services, or ISBE would conduct on site reviews of what had been accomplished.

Changes in principals often collapsed implementation plans

One of the things that became apparent was that schools that had experienced changes in principal leadership often had complete collapses in the implementation of their plans. New principals would direct special education teachers who had been implementing plans to proceed in a different direction than the plan indicated.

In a few cases new principals even decided after they inherited a plan that they would reallocate training dollars to better fit their goals. In one school materials ordered with these funds had just disappeared from the school, including several laptop computers. At another school thousands of dollars had been paid to certain teachers at the school for extended day work that could not be documented. Other teachers at the school, including all the special education teachers, had no idea that there were extended day funds available for curriculum development. Ultimately, CPS issued a warning resolution to the school’s principal and a regular education teacher who received thousands of dollars in extended day payments in the course of one school year. The Monitor had asked that they be significantly disciplined.

While many schools were able to implement their plans and have varying degrees of successful outcomes, other schools could not. The Monitor’s Office in response to these looming problems began to more critically and tightly review plans. More initial plans were directed to be revised or in some cases disapproved. This created greater tensions between the Monitor’s Office and CPS, between the plaintiffs and the CPS, between the plaintiffs and the Monitor’s Office over effective enforcement of the Agreement, and between all of the above and the ISBE on some occasions. While all this was going on the CPS shifted from the Vallas administration to the Duncan administration and from one Chief Specialized Services Officer to another. Schools with LRE plans were closed, charter schools were created and opened, and new administrations created new policies that impacted the Corey H. case to one degree or another. Even the head Court Monitor changed.

CPS is non-cooperative

Some of these tensions resulted in Court hearings, motions indicating CPS was non-cooperative, attempts by the plaintiffs to find CPS in contempt, threats by CPS attorneys to seek sanctions against opposing counsel, and even appeals to higher courts. Behind closed doors at meetings there were many lost tempers. At the end of the time period established for the Settlement Agreements both Agreements were extended because the actions required on the part of both ISBE and CPS had not been completed. Of course something like a Settlement Agreement was not just extended by a Judge simply making it so, there were briefs, oral arguments, and on and on.

The extension of Agreement was a bitter blow to CPS and it meant that millions of dollars sitting effectively in escrow subject to oversight could not be utilized by CPS to offset special education costs. Probably more importantly CPS freedom of action relating to its special education programs was restrained. An example of this restraint was the hearing in Corey H. related to the layoff of hundreds of special education aides that was covered by Substance in 2006. While, CPS was not legally restrained from carrying out the cuts, it was required to provide evidence showing which schools were impacted that CPS would have rather not have publicly revealed. Much of this information was used by protestors, led by special education students themselves and their parents, who objected to these cuts and whose protests were extensively covered by Substance.

Current state of Corey H

This long history takes us to where we are now and now CPS has filed an appeal to the US Seventh Circuit Court relating to the target the Monitor established back in 1999 establishing maximum percentage of students with disabilities in attendance in any CPS school. That target was that every CPS school should have a goal of having no more than 20 percent of its students with disabilities, currently about 12.3 percent of all elementary students have disabilities and 15.1 percent of the high school students have disabilities. Students who receive only speech and language services are not counted in the totals.

It is obvious to teachers, administrators, and other readers of Substance that there are some CPS schools that have had for years higher numbers of special education students in them, but have not had groups of students with disabilities bused in from outside their intake areas. An example would be Manley Career Academy, which has had over 20 percent of its population composed by special education students for years.

Then there were schools such as LeMoyne which last school year had over 50 percent of its enrollment composed by students with disabilities. LeMoyne had very few non-disabled students left because the school was being closed the next year. Then there are schools like Agassi Elementary which had over 25 percent of its students with disabilities, many of whom were bused into the school for its autism program. These schools and many others were to be looked at though a wavier process with the ISBE as the ultimate decision make on granting waivers.

CPS never applied for waivers for the individual schools it knew were very unlikely no matter what action the district took to have fewer than 20 percent students with disabilities. Instead when the time line established for CPS to effectively comply with the 20 percent cap was reached in June 2005, CPS submitted a wavier request for 95 schools without any information as to why CPS could not comply with the 20 percent cap for any of these schools. The Monitor immediately requested information relating to each of the 95 schools and asking what were the efforts CPS and the schools had made to reduce the numbers of students with disabilities in these schools.

In my opinion the CPS did a real disservice to some schools in not submitting waiver requests for these schools which simply had intake areas that had very high numbers of students with disabilities and could do nothing about it unless they bused out these students. The CPS also had cluster programs in schools where it made no attempt to reduce the numbers of students with disabilities by reducing the flow of CPS Office of Specialized Service (OSS) placements. It could well have been that OSS would have liked to reduce the flow of more significantly disabled students to some cluster programs, but in reality had no where to put them because the Duncan administration would not force other schools to take these programs. Conflicts over space for these programs have existed in CPS for years; they are like the orphan children of the school district.

Some schools do not want to have special education cluster programs placed in their schools and this is not because the principals necessarily dislike students with disabilities. But rather once you receive these programs you are stuck with them and if CPS cuts support for the programs, as it did with the special education staff reductions in June 2006, you have to find a way to survive with the resources your school has. It is not an irrational decision on the part of a school to try to keep these programs out unless your school is under enrolled and you want to keep the doors open.

The CPS also had schools that were once fully segregated facilities that had created regular education pre-school or kindergarten programs as part of what was called reverse mainstreaming. Other schools that once had no regular education students in them had full regular elementary programs placed in them, an example of this was Hanson Park School. All kinds of schools were amalgamated in one great pile of 95 schools CPS was requesting waivers for.

CPS continues fighting legal fight in appeal to Seventh U.S. Circuit Court of Appeals

The CPS option or solution to this problem was to legally fight its way out of the 20 percent cap. It first appealed to the District Court Judge and lost and now to the Seventh Circuit Court of Appeals. At this point 62 pages of briefs have been filed with the Court of Appeals. There are complex legal arguments raised by the plaintiffs relating to whether the CPS can in fact appeal the 20 percent cap this late in the game. There are specific schools CPS argues where it finds it impossible to reduce the number of students with disabilities without adverse consequences for the students and arguments that the CPS never knew or understood the rules of the waiver process because the rules were not clearly established. Since CPS has available to it an army of in house and outside contracted attorneys it is hard to understand why it could not have clarified the wavier process rules over a six year period of time. I am even directly quoted from a transcript in one of the CPS briefs to the Court of Appeals.

The plaintiffs in their brief raise an issue that is near and dear to readers of Substance. That issue is, what about all the new schools that CPS is opening under the Renaissance 2010 program, can’t these schools have some of these cluster programs too. In fact most 2010 schools are far below the 20 percent cap and with 100 such schools opening clearly this provides another place for CPS to locate these programs.

Ultimately, this aspect of the Corey H. case will be decided. Major new issues impacting this case are on the horizon, one of the largest will be school closings. Moving students with more significant disabilities is a very complex process, especially since as we have noted there is great reluctance for schools to accept out of attendance area students with disabilities. The case is now scheduled to conclude in 2010, it does not seem likely it will go on beyond that date. Some things for students with disabilities have gotten better in CPS, but many things have also gotten worse. Academic achievement for students with disabilities in CPS have improved over the course of the Corey H case, but they have not improved enough to increase the likelihood that these students will have improved life out comes. More students with disabilities are being educated with their non-disabled peers.

Major changes in special education since Corey H began

Because of the changes brought by the Corey H case the work life CPS special education teachers has changed. Fifteen years ago most CPS special education teachers had either pull out classes or self contained classes. Today many CPS special education teachers are working in multiple environments in the course of a school day. They may be in a regular third grade classroom co-teaching for reading, in a resource pull out class for math, in a fifth grade room is co-teaching for science, and in an eighth grade social studies classroom co-teaching all within the same day.

There is no question that most CPS special education teachers now experience a more intensive school day. The whole idea of a “case load” for these teachers is now somewhat illusory. The Chicago Teachers Union has done little or nothing to address the new realities special education teachers now face. In fact changes in State law that will impact CPS special education teachers, the complete elimination of case loads, due to coming deregulation have not been addressed at all by CTU.

Under the existing State regulations what is commonly called a special education resource teacher would have a case load of only 20 students. The case load system has the effect of creating a minimum staffing level in any one school. Under the new regulations that become effective in the 2009-2010 school year there will be no more case loads for these teachers. It is completely unclear whether a highly inclusive school that has no self contained classes and 40 students with disabilities in 2009 would remain entitled to two special education teachers as it does not. The teachers unions in Illinois are going to have to negotiate special education staffing levels and all contract provisions relating to existing State special education staffing formulas will become null and void in 2009. The CTU in its last contract which covers the 2009-2010 school year does not even begin to address this critical issue.

Millions of dollars spent

During the Corey H case, millions of dollars have been spent on trying to reform the special education system and several million dollars effectively sat in escrow for an extended period of time. This is because school based plans which drove these funds were not approved by the Court Monitor. Those plans were not revised by schools under direction of CPS after being directed to do so by the Court Monitor in some cases for years. Funds that were related to the plans were supposed to be directed towards training staff and restructuring special education programs. In some cases the Monitor found schools were attempting to use funds to supplement CPS directed NCLB whole school improvement strategies arguing effectively that it would help students with disabilities too. Special education staff turnovers coupled with changes in principals made revising plans after disapproval nearly impossible at some schools. 

Rodney Estvan is now the Education Outreach Coordinator for Access Living a disability rights organization.

This article originally was published in the print edition of Substance (February 2008).

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