Updated January 3, 2020: A spokesperson for Flint Community Schools sent the following statement, attributed to FCS Superintendent Derrick Lopez: “The Flint Community Schools District is deeply committed to the well-being and success of all students. In keeping with District policy, we will not be commenting on pending litigation.” Requests for comment to the Michigan Department of Education were directed to the Attorney General's office, which has not yet responded at this time.
Fifteen families of special needs students in Flint may finally get the chance to plead their case against the school system in trial this spring. It’s been more than three years since they sued the city’s schools, the intermediate school district, and the state of Michigan.
They’re arguing that their children were exposed to brain-damaging lead during the water crisis, and that may have caused or exacerbated the children's special needs. Yet they say the public schools have systematically failed to provide the special education services they need, while disproportionately suspending, expelling, and in once case, handcuffing their children for disability-related behaviors.
While a partial settlement was reached in April 2018, the case has essentially been on hold for the last year, says plaintiffs’ attorney Greg Little of the Education Law Center. He says they were hoping a full settlement could be reached with the state once Governor Gretchen Whitmer took office in January 2019.
“With respect to the new administration, one of the things that’s been very disappointing is, I mean, we've put this case on hold for a year to work with the state to try to come up with a prompt resolution,” Little says. “And we do not believe the state has stepped up to do what they need to do to make that happen. And that's why we're no longer just sitting back. We're still willing to talk with them if they decide to do the right thing. But so far, they have not. And that's why we're moving forward as aggressively as possible for trial.”
Little and his team have asked a judge to certify their case as a class action, thereby extending it to include all students in Flint, rather than just the fifteen mentioned in the complaint.
The defendants, which include the Michigan Department of Education, the Genesee County Intermediate School District, and Flint Community Schools, were due to respond to the class action request by early December. But that deadline was extended after a pretrial conference between the attorneys this month.
Michigan Radio asked both the state attorney general's office and the MDE whether their stances toward the case had changed compared to the previous administration's, but they didn't respond.
A growing special education crisis in Flint
In their initial complaint, the families say their children were victims of the “state-created public health crisis in Flint, Michigan, whereby an entire population was poisoned with lead-contaminated water.” At the time the suit was filed by attorneys with the ACLU of Michigan, the Education Law Center, and a private law firm, the youngest plaintiff was just three years old.
Children exposed to lead are at higher risk for neurological damage and developmental delays, according to the U.S. Office of Special Education Programs. Even at lower levels of exposure, lead has been linked to reduced test scores and IQ deficits. Meanwhile, Flint’s rate of special education students has been steadily growing since the water crisis began in 2014, and is approaching 28%, according to the district’s superintendent (the state average is about 13%.)
Yet the families say their children have not been provided with the legally-required evaluations, interventions and special education services they need. Because the district is so strapped for cash, has had to lay off staff, and was forced by budget constraints to divert funds from general education programs to the growing special education needs, plaintiffs argue the Flint school district has motivation to not identify kids for costly special ed services in the first place. The state bears the ultimate responsibility for fixing the problem, they say, and unless it diverts significantly more resources to the district, a real, systemic solution is impossible.
The children’s stories: denied services, beaten by bullies, and handcuffed
One boy, identified only as D.R. in the complaint, was 12 when the lawsuit was filed. Even before the water crisis, D.R.’s mom notified the school that he had been diagnosed with ADHD and Asperger syndrome. Yet for years, the school’s own evaluators refused to give him an Asperger’s diagnosis, and decided he only qualified for speech and language impairment services, according to the complaint. And while his Individual Education Program (or IEP, which is a written document put together by the school, outlining what services a special education student should receive) said he should get speech therapy at least once or twice a month, he received just five sessions over 12 months. “His teachers indicated that he was often bullied because he did not understand social cues,” the complaint says.
“On four or five occasions, D.R. was bullied in the bathroom...by a large group of 10-12 male students. On these occasions, he was held against the wall, hit, kicked, pushed to the ground, and stomped on. His head was also violently smashed against the hard tile in the bathroom. The behavioral specialist...dismissed these incidents as ‘horseplay,’” the complaint reads.
By 6th grade, D.R. tried to avoid going to the bathroom at all, instead opting to “hold it” throughout the day. According to the complaint, he was frequently “disciplined, secluded from the general education environment, or suspended when he became enmeshed in fights.”
With schools either unwilling or simply unable to provide the needed supports, the complaint alleges administrators often essentially removed the kids from school instead, suspending or expelling them for disability-related behaviors. Another boy in the lawsuit, then an 8-year-old with ADHD, was disciplined in 2015 by being “handcuffed for nearly an hour by a Flint Police Department school resource officer” in front of other students. Yet another boy with ADHD, who was 7 when the complaint was filed, was suspended and disciplined so often for his “disability-related behavior” that he racked up “more than 70 absences and more than 30 suspensions during the 2015-16 school year.”
While the complaint says several parents discovered the children’s suspensions and expulsions weren’t even being documented by the school, the state has repeatedly flagged Flint Community Schools for disproportionately disciplining special ed students (the year after the water crisis began, the rate of special ed students being suspended or expelled for more than 10 days a year shot up more than 1600%, according to state data)
A partial settlement, but more help needed, complaint says
Initially, the suit asked for the court to declare the schools have a “duty to conduct testing and enhanced screening of all children ages 3-5 and all those attending, or who may attend, FCS for elevated blood levels and a determination as to whether the child is eligible for special education services.” That led to a partial settlement in 2018, when the Michigan Department of Education agreed to spend $4 million on an independent screening center to evaluate Flint kids for special needs.
But the plaintiff’s attorneys say just identifying those kids isn’t enough.
They also requested that the court ensure “every public school has sufficient qualified personnel to evaluate and complete IEPs, including nurses;” offer free, high quality universal preschool; provide teacher training; “end the practice of restraint and seclusion,” and create a panel of experts who can oversee the “provision of special education services as mandated by law” as well as “identify corrective measures that address the medical, health, and trauma issues that result from lead exposure.”
What the court has said so far
All three defendants: Flint Community schools, the Genesee ISD, and the Michigan Department of Education asked the judge to dismiss the lawsuit for several reasons. For one, they said, the plaintiffs didn’t “exhaust administrative remedies as required under the IDEA,” referring to the federal law known as the Individuals with Disabilities Education Act. For another, they claimed the plaintiffs lacked legal standing to even bring suit against the state. And both GISD and MDE argued that they couldn’t be legally held accountable for what was essentially one school district’s failures.
But in September 2017, judges with the U.S. District Court in Eastern Michigan denied the defendants’ motion to dismiss, although they did concede “there is no showing that this Court has the power to order the creation of public universal preschool.”
Yet the plaintiffs don’t have to “exhaust administrative remedies” because they’re not seeking a solution for just one individual student, the court ruled. Instead, they’re seeking “systemic change” that can’t be solved within an already flawed system. And because both GISD and the MDE have “responsibility to oversee and coordinate special education,” these claims can be brought against them.
Lindsay Heck, another attorney for the plaintiffs, says it’s crucial the court certify this case as a class action.
“The violations that they've endured and experienced in the school are systemic in nature,” says Heck. “We want to make sure that any relief that’s ultimately put in place as the result of our case is available to all of the children across Flint community schools.”
The defendants are expected to file counter motions in the coming months, arguing why the suit shouldn’t be opened up to an entire class of plaintiffs beyond the initial 15 families.
Depositions of both GISD and state officials will resume in the new year, Heck says, and if no settlement is reached, the trial is tentatively scheduled for June-September 2020, according to a prosposed scheduling order that's pending court approval.