Trying to live up to special-ed law amid the Philly school budget crisis


With a skeletal support staff serving the city’s traditional public schools, many worry that the district has opened itself up to an onslaught of legal claims from families struggling to ensure that their children get the education that they deserve. This is the story of one such family. 

The Philadelphia School District has at least 20,000 evaluated special-needs students.

Each year, the district pays millions in legal fees and lawsuit settlements based on its failure, both proven and alleged, to meet their needs.

This year, due to budget cuts, the district shed close to 3,000 staff members.

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With a skeletal support staff serving the city’s traditional public schools, many worry that the district has opened itself up to an onslaught of legal claims from families struggling to ensure that their children get the education that they deserve.

This is the story of one such family.

[Oct. 23 Update: District comes closer to meeting needs of North Philly school; ‘not enough’ say some]

Christina Lee shyly grips a pillow on the living-room couch of her Feltonville rowhome, hiding her dark-brown eyes behind the upholstered fray of her foam-filled shield.

Her mother, LaTonia, with patient, steady elocution asks the seventh-grader to judge how this school year compares to last.

A foggy look of concentration sets into the long, still-forming features of the 13-year-old’s face.

Christina hears the words, but something goes awry as she tries to decipher the question. You can almost see the electricity surging between the neurons in her brain, but it never quite fixes itself to a cohesive line of thought.

She stammers the beginning of a response. Her tone suggests the air of someone hoping to stumble upon the “right” answer to a question which they’ve already forgotten.

The words drip haltingly from her tongue. Christina says there’s less kids in her classroom this year.

Her mother’s eyes quickly widen – clearly, the “wrong” answer.

LaTonia repeats the question again, this time even more slowly. A light seems to click on in Christina’s head, and all of a sudden she speaks lucidly – detailing the challenges she’s faced this year in the Philadelphia School District, including larger class sizes.

Before long, though, her neurons fire in a different direction and her mind ambles down another path entirely. How her mind built the bridge between this train of thought and the last, only Christina knows.

“It’s almost as if her wheels skip a beat,” said LaTonia of her daughter, “like she’ll understand what you’re saying, but she’s already either two steps ahead of you or a half a step behind.”

Her mother says Christina is a “slow learner.” The document that defines her as a special needs student, her Individualized Education Plan, says she has “processing deficits,” as well as “receptive/expressive deficits.”

To help her learn despite these deficits, the IEP dictates that Christina, whose English teacher says reads “far below grade level,” should receive one period per week of “speech and language service.”

This would typically be performed by a speech therapist who — in one-on-one consultation — would help Christina better understand the rules and rhythms of syntax and language.

“Like, if I don’t say the words right, she’ll help me say the words again,” Christina said. “And I’ll be like, ‘OK, now I know this word, now I know what it means so if I ever see this word in another story, I can tell myself: I know I learned this word in speech.'”

But Christina’s school, Feltonville School of Arts and Science, doesn’t have a speech therapist and, thus far, the service has gone completely unfulfilled.

It’s a reality that’s not only damaging to Christina’s academic progress, but in violation of the law.

Without the legally-required attention, LaTonia fears that her daughter’s academics will suffer through the seventh grade, the year that counts in high school selection.

“I need her to get everything that she’s supposed to get so that when we go to apply to high school we can say, ‘Hey, look this is our best effort,'” LaTonia said.

Now, the mother says she’s on a David versus Goliath mission to make sure the school district provides Christina the education she deserves.

“My kid is not going to get shuffled somewhere,” she said, “because they didn’t want to accommodate her in middle school.”

What’s the Big IDEA?

School districts across the country face an immense challenge trying to comply with federally mandated special education law.

The Individuals with Disabilities Education Act (IDEA), passed in the 1970s, holds school districts responsible for providing all special-needs students with a “free, appropriate, public education,” protecting 13 specified categories of disability — including kids with autism, serious emotional disturbance, and vision/hearing/speech impairments.

For each special-needs student, districts must devise a specific education plan that allows the student to learn and grow in the “least restrictive” environment.

Once the IEP is written it becomes a legally binding document. If a district fails to implement the plan properly, the contract is broken, and parents may exercise their right to sue.

(The same can be said for “504 plans.” These cover students with physical or emotional disabilities who haven’t been deemed to need differentiated instruction. For instance, a district may need to accommodate students in wheelchairs by scheduling their classes on a school’s first floor.)

Schools must not only serve students with existing IEPs, but they also have the legal responsibility to seek out and discover special-needs students who have yet to be diagnosed.

In IDEA’s quest to right the wrongs of a not-too-distant past ― where special-needs students were either barely served or flatly rejected from the system ― the law tolerates zero excuses. A district can’t argue that staff shortages or budgetary woes impede its ability to meet students’ needs.

In this way, every IEP is a potential lawsuit, every special-needs parent a potential plaintiff.


Even absent fiscal crises, districts across the country struggle to live up to the strict demands of IDEA. This has been especially true lately in Pennsylvania, where state funding for special-ed has flatlined for the past six years.

In Philadelphia, the problem is even worse.

Budget cuts have wreaked havoc on almost every aspect of life in the city’s traditional public schools. In the past few months, the school district has shed about 3,000 employees – depriving or understaffing almost all schools of critical staff positions.

These include guidance counselors, assistant principals (and, in recent years, nurses). Although these positions aren’t technically “special education staff,” they’re the very staff that children with special needs often rely upon most.

On Wednesday, after the state announced it would release an additonal $45 million to the school district, Superintendent Hite said he’d immediately recall 400 staffers, including 80 guidance counselors and additional special-ed teachers and support staff.

Still, not every district school will have a full time counselor.

“Those are people who play a critical role in identifying [special needs] children and ensuring their needs are met on a prompt basis,” said Maura McInerney, senior attorney with the Education Law Center, a statewide legal advocacy organization.

Without the full complement of this support staff in place, many special-education experts interviewed for this story said that it will be kids with special needs who end up suffering most.

Top priority

The district maintains that, even through massive downsizing, special education has remained a top priority.

“That’s one of the things we paid particular attention to this year,” said superintendent William Hite, who stressed that the district did not cut the special-education budget, nor layoff any special education teachers, therapists or psychologists.

He did acknowledge, though, that some of these positions have remained vacant for a number of years. “Not filling a position is different from making cuts,” Hite said. “These aren’t new problems.”

New or not, the problems still exist.

And increasingly, like many other issues this year, they fall on the hamstrung staff that happens to be left in the building – namely, the teachers.

“They expect the teachers to do everything,” said Adrienne Bomboy, Christina Lee’s special-ed reading and writing teacher at Feltonville. “By the time you handle all those other needs, you can’t even get a chance to really teach the children, because you’re worried about putting a band-aid on someone or handling a bullying situation.”

Bomboy estimates that there’s at least another 20 students in Feltonville School of Arts and Science whose IEPs have been violated because the school hasn’t provided speech therapy.

“I definitely think there’s a lot that’s not going to be met this year,” Bomboy said of Feltonville’s ability to live up to IDEA.

Now, more than a month into the school year, the district-wide proof of this has already begun to pile up.

The Public Interest Law Center of Philadelphia has gathered between 700 and 800 parent complaints (and counting) from at least 50 schools, and sent them to acting Pennsylvania State Education Secretary Carolyn Dumaresq. PILCOP estimates that 30 percent of the complaints are special-education related.

PILCOP director of disability rights Sonja Kerr says the onus here ultimately lies on the state. Over the summer, in exchange for federal funding, Pennsylvania signed an “assurance” that it would provide special-ed services to every deserving student in the commonwealth.

“And they didn’t say, ‘except for Philadelphia,'” said Kerr. “They have a responsibility to the federal law. They have to live up to it, and we’re going to hold them accountable.”

Officials from the Pennsylvania Department of Education did not respond to numerous requests for comment for this story.

Looming questions

Even as the school district recalls an additional 400 employees, a few questions loom large in the minds of those who closely watch special education in the Philadelphia School District:

Will the district’s attempt to save money by reducing staff cause it to spend more money defending itself in special education litigation?
Does that make the increased violation of special-education law an unavoidable by-product of this budget crisis?

In an email, the Philadelphia School District said that “every effort has been made to insure that needs of students are being addressed,” while saying it would participate “in the important statewide conversation about special education funding reform and the effects of the federal sequestration on the IDEA grant which resulted in an over $2 million reduction this school year.”

As far as the cost of special-education legal complaints, last year the district budgeted $6.2 million for losses and judgments in special education, and that contributed to an overall $8.7 million overrun in all losses in judgments for that year.

This year they are again projecting they will spend the same $6.2 million in losses and judgments related to special education.

The year before, the district spent $3.4 million on all losses and judgments.

It’s important to note that these figures do not include legal fees or the cost of paying some students’ private-school tuition — figures the district declined to release.

As the district downsized its school-based staff, it also hired three additional in-house special-education attorneys and, in recent years, has contracted with two of the Philadelphia area’s premiere private law-firms ― Fox Rothschild, Levin Legal Group ― to handle additional special-ed complaints.

“I do wonder what their priorities are,” said PILCOP’s Sonja Kerr.

The district says it hired the three additional attorneys to replace the three that it laid-off in 2011.  Spokesman Fernando Gallard says the district contracted with the private law-firms at “discounted rates,” but would not provide specifics.  He said the district would “move away” from using these law-firms, but couldn’t give a firm end-date.

Welcome to Feltonville

LaTonia Lee has two daughters, each with special needs. Christina, the older one, now 13, was born premature, and has struggled with language. LaTonia’s younger daughter, almost four-year-old Camille, has autism, and to this point has been completely non-verbal.

After a 17-year stint away from her hometown, LaTonia relocated the family from Georgia to Philadelphia this spring because she felt Pennsylvania offered better autism-support options for Camille.

The trio moved into LaTonia’s mother’s house in Feltonville in May. Now, it seems, she’s hurdled out of one fire and into another.

As LaTonia attempted to ensure that Christina’s IEP would be met in her new neighborhood public school, her bureaucratic nightmare began, and still continues.

Christina’s IEP was last authored in April by Fulton County Schools, a district in suburban Atlanta. On top of the speech and language requirement, it dictates that Christina should be taught in a “special education setting,” and receive “small resource” instruction for reading, math, language arts, science and social studies.

She forwarded this information to the district in May, but received no reply.

When a student like Christina moves from one district to another, the receiving district retains the right to re-evaluate a student’s IEP. The district has 60 days – not including summer break – to perform its evaluation, but, until it does, it’s legally required to serve the student’s existing IEP.

LaTonia attempted to speak in person with someone from the school, but because budget cuts slashed summer staff, she didn’t see someone face-to-face until the actual school year began.

When she eventually did speak with staff, first Feltonville told her that Christina would have a speech and language therapist, but later she learned that the therapist was on sick leave indefinitely.

Meanwhile, the position remains vacant, and LaTonia’s head keeps spinning.

When she tried to engage with Feltonville’s special-education district liaison, she learned that post was also abandoned.

At this point, Christina has small-resource special-education classes in reading, language arts and math. The rest of the IEP remains unmet.

In the mean time, Christina – the shy ‘new-girl’ among middle-school girls – suffers not just academically, but emotionally.

“I’m always getting like bullied, picked on, messed with,” Christina said, “always getting name called.”

LaTonia wonders if the bullying would be lessened “if she were in the appropriate classes surrounded by the appropriate instruction,” but until she convinces the district otherwise, the status quo will remain.

“I’ve never been in a situation where they’ve just said, ‘There’s nothing: deal with it.'” LaTonia said. “I mean that’s kind of what I feel like is going on here.”

Help wanted

Believe it or not, despite shedding 15-percent of its staff this year, the Philadelphia School District says it’s hiring.

Turns out, though, it’s only for positions that nobody wants — at least for the money offered and qualifications required.

Asked specifically about the struggles LaTonia and Christina have been facing without a speech therapist, Superintendent Hite said, “We’re actively recruiting for speech and language, and for occupational [therapists] and for everybody else that we need in order to [meet IEPs].”

Philadelphia School District Chief Financial Officer Matt Stanski said certified speech therapists are “difficult to hire, tough to find,” and that the district would have a speech therapist in Feltonville “if we could find somebody.”

The U.S. Bureau of Labor Statistics says the annual mean-wage for elementary and secondary school speech therapists is $66,440.

No matter staffing difficulties, IDEA holds districts legally accountable for failing to providing services to children with special needs.

Squeaky Wheel

To her credit, LaTonia Lee is the quintessential squeaky-wheel parent. She understands exactly what IDEA entitles her child and she’s not afraid to fight for it. With a law degree and an MBA, she steps to the district empowered with the social capital that many Philadelphia parents lack.

Since the beginning of the school year, LaTonia has devoted much of her waking life to Christina’s education, momentarily forgoing her own job hunt and often relying on her mother to babysit her three-year-old.

She’s filed complaints with the state, spent fruitless hours waiting in vain to speak to administrators at school district headquarters, and vanquished afternoons pouring through tomes of literature on the complexities of special-education law.

Although the process has already been long and arduous, LaTonia knows it’s only the beginning. No matter, she’s willing to do whatever it takes, including filing a lawsuit, to put Christina in a better position  — be that in another district school or a private school paid at district expense.

“[My children] will not be anyone’s victims. They are going to college,” LaTonia said. “Just because you learn differently, just because you don’t process the same way someone else processes, it doesn’t mean that you get shut out of education.”

To Kenneth Cooper, who spent eight years as an attorney representing the Philadelphia School District, LaTonia is exactly the type of person who typically succeeds in a complaint against the district.

“Essentially what happens is the squeaky wheel is the one that gets the oil,” said Cooper, who left the district in 2010 to become a private-practice attorney representing students and parents.

The scary thing, he says, is what happens to students whose parents don’t understand their rights under the law.

“The other parent, the homeless parent, the immigrant parent, the parent from a country where education is not a priority, [their] kid is going to slip through the cracks — or the chasms: They’re not cracks, they’re chasms,” said Cooper.

Inside man

From 2002 to 2010–under superintendents Paul Vallas and Arlene Ackerman–Ken Cooper served the Philadelphia school district as assistant general counsel in the district’s in-house special-education law department.

When a parent filed a due-process complaint against the district for its alleged failure to meet their child’s IEP, Cooper was one of as few as four lawyers to get the case.

At any one time, he said his personal workload consisted of 100 open cases. Office-wide, that number would be more than quadrupled.

Although the workload overwhelmed him, the thing that really got to Copper – and ultimately made him quit – was working for a system that he perceived as a uncaring, bloated bureaucracy.

“I spent probably the greater part of my time each day fighting with and trying to contact my client [the school district] — not fighting with parent attorneys or parents,” said Cooper.

“People [in the district] were more interested sometimes in ‘fighting the fight,’ which was ridiculous because you don’t fight a fight where a kid’s involved,” he said. “You try to fix the problem.”

Even when his investigations clearly found evidence of district wrong-doing, Cooper said it was “very difficult…to get somebody to respond to the problem.”

And when the district did respond to issues, Cooper said all too often it would develop a whole new IEP “with all the bells and whistles,” but then, a few months later, he’d find that school faculty weren’t aware of the changes, and kids needs were still being unmet.

The district did not reply to Cooper’s accusations in time for publication, despite requests made earlier in the week.

Underfunded Mandate

These problems are far from unique to the Philadelphia School District.

Almost all districts have long struggled to live up to the strict standard set by IDEA, which many special education attorneys interviewed for this story called “an underfunded mandate.”

Montgomery County-based special-ed attorney Josh Kershenbaum put it this way: “The federal government imposes these requirements, but doesn’t follow up or match those obligations with a commensurate level of financial commitment to public schools.”

Kershenbaum says the law is written is such an inclusive way, that “if every student who was legally eligible to receive special education services was actually offered those services, the system would collapse very quickly.”

To some extent, he says, “the only reason why the system works as well as it does is because it is vastly underutilized.”

Dirty little secret

And here’s where special-education law takes a turn that often leaves parents like LaTonia Lee feeling like they’ve been sucked down the rabbit-hole.

Even when the law is utilized, and even when parents prove that a school district has failed to meet their child’s needs, the district’s punishment is doled out not in cash, but in compensatory education hours — a bank of district-controlled money that only can be used for educational expenses such as private tutoring.

If, hypothetically, LaTonia files a legal claim against the district and wins, the district will have to provide Christina the programming that she needs (either at Feltonville, another public school in the district or a private one at district expense).

On top of this, depending on the exact agreement, the district would have to provide Christina with the same amount of hours of compensatory education that it failed to provide in the first place.

In an extreme example, if a student has an IEP that’s unmet (or undiagnosed) for every hour of every school day for two years, the district would be responsible for roughly 2,000 hours of compensatory education, which, at $60 a hour, equals $120,000.

But here’s the dirty little secret that Ken Cooper says districts know full well: kids don’t often use the hours.

“The big joke in the school district was well: ‘we can give these kids a ton of compensatory education. We don’t care,'” said Cooper of the rationale inside the Philadelphia School District’s headquarters during his tenure there.

“The reality is that compensatory education is rarely, if ever, used to its fullest extent,” he said, “and they know that.”

He said there’s a simple reason.

“You and I were kids once, and if mom said, ‘You know, after school you’re going to go to the tutor for an hour. You can’t go out and play basketball, you can’t do this, you can’t go here, you can’t go there. And, special treat, over the summer: more tutoring.’ So the kids rebel,” Cooper said. “They won’t do it.”

What often ends up happening, Cooper says, is the kids use a little bit of the money, the district and the state come out relatively unscathed and the lawyers on either side make lots of money.  The district did not respond to this claim either.

“Bottom line, this whole thing,” Cooper said, “the kids lose.”

The fight continues

Despite the uphill battle against her, LaTonia Lee continues to, as she wrote in an email this week, “complain and wait.”

At this point, Christina has been evaluated by Feltonville’s school psychologist, but the Philadelphia School District’s assessment remains incomplete, and her IEP remains unmet.

The district has now assigned a new special-ed district liaison to look into Christina’s case, but LaTonia says the liaison wanted to schedule an IEP meeting based on the incomplete report.

LaTonia wrote the liaison that she was “disinclined” to have the meeting until the district completed Christina’s evaluation.

But LaTonia knew this was her legal right only because of the massive amount of time she’s spent researching special-education law since the school year began.

What’s happening right now to students lacking parents with LaTonia’s time and education, one can only assume.

Special-education attorney Josh Kershenbaum knows this for sure: the more special-ed students the district passes over now, the more it will cost society in the long run.

“If we fail those students young, then we will come back and pay for it later,” he said. “It may come out of a different budget. It may come out of a different pocket, but we will pay.”

Although this rationale makes sense to LaTonia, to her, the stakes are much more personal.

While some may meet Christina and see only a “slow learner,” LaTonia sees that elusive sparkle in her eyes and believes that–if she keeps on fighting for her daughter’s educational rights –Christina’s potential truly can be made to shine.

“Some kids are super swift and they ‘get it,’ and they’re gifted and they’re amazing, and ‘hallelujah’ for them,” the mother said, “but my kid will not be crushed because she’s not.”

Whether that’s the fate for other special-needs students in Philadelphia this year, only time will tell.

A previous version of this story incorrectly stated that the Philadelphia School District contracted special-education legal services with Schnader.

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