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U.S. DOJ finds separate schools program for students with disabilities violates ADA

A ruling on Georgia’s segregated schools program should prompt North Carolina to examine its own less visible violations of the rights of students with disabilities.

In July, the Civil Rights Division of the U.S. Department of Justice (DOJ) issued a notice of findings and required the State of Georgia to make changes in its separate school program for students with behavior-related disabilities. The DOJ determined that the State, by operating and administering the program, called GNETS, is violating Title II of the Americans with Disabilities Act (ADA) because the program is “unnecessarily segregating students with disabilities from their peers” and providing inferior opportunities to students with disabilities as compared to non-disabled students.

Georgia’s program, created in 1970, currently serves approximately 5,000 students, with two-thirds attending schools that are completely segregated from regular schools, and the other third in a self-contained setting that allows little or no contact with non-disabled peers. The DOJ found that Georgia places students at these segregated schools who can and should be in a non-segregated setting to receive therapeutic and behavioral health services, and that the “vast majority of the students in the GNETS Program could participate with additional aids, services, and supports in the variety and rigor of educational opportunities available in general education schools.” In other words, with the supports and services required by federal law for over four decades, including Section 504 of the Rehabilitation Act (1973), IDEA (1974), and the ADA (1990), these students could be educated in a regular school.

The DOJ ordered Georgia to implement extensive remedial measures, including (i) delivery of services without disability discrimination; (ii) education of students with behavior-related services in the most integrated setting appropriate; (iii) amendment of placement and retention policies for GNETs; (iv) reevaluation of the services the students need for placement in an integrated setting; (v) transition and support services to school districts to ensure the continued placement of students in the most integrated setting; (vi) training for regular education school staff on meeting the needs of the students; and (vii) outreach, education, and opportunity for meaningful input for parents about the service and placement options.

The DOJ’s findings and recommendations are a clear statement against self-contained settings for students with disabilities. Georgia’s practice of placing students with certain disabilities in physically separate settings may be more visibly exclusionary than North Carolina’s, where there are fewer separate buildings and campuses for those students, but there is room for North Carolina to make significant improvement in educating students with disabilities in inclusive settings, particularly students exhibiting behavioral challenges and students with cognitive differences.

In North Carolina, thousands of students with disabilities spend their school days in self-contained classrooms behind closed doors, with no inclusion in any regular education settings and no interaction, meaningful or otherwise, with non-disabled peers. Many more are permanently assigned to alternative schools, without access to electives and extracurricular activities. This occurs despite the legal mandate that students with disabilities receive the same access to education as non-disabled students. There is a legal presumption that students with disabilities will attend school in a regular education setting and be provided with supplementary aids and services, including special education staff members, if necessary, so they can access the general curriculum, make reasonable progress on Individualized Education Plan goals, and remain in that setting. North Carolina’s exclusionary practices violate the ADA, the Rehabilitation Act, and IDEA, just like Georgia’s system of separate schools.

Significant and meaningful inclusion can and does occur when attention is given to planning, training, and flexibility. Behavior Intervention Plans (BIPs), for instance, are required for students with behaviors that lead to suspension for longer than 10 days, and recommended for students whose behaviors interfere with learning. BIPs can address and remedy adverse behaviors that lead to exclusion from regular settings.

More information about the rights of students with disabilities to be included in the regular education setting can be found in Parents Together. The manual also describes methods of addressing behavioral issues.

Virginia Fogg

Virginia joined DRNC in September 2014 as a member of the Education team. Her legal background includes representing children in special education and discipline matters for six years in her solo law practice. She grew up in Wilson and attended UNC-Chapel Hill as an undergraduate. Virginia received her law degree from Columbia Law School in 1994. While in law school, she served as the Executive Editor of the Journal of Law and Social Problems and represented parents with children in the New York City foster care system through the law school’s Family Advocacy Clinic. After law school she clerked for the NC Supreme Court, then practiced class action litigation and transactional law in Northern California. Virginia enjoys working to resolve special education and discipline issues to help ensure positive outcomes for children and families. She is married, has two children, and spends her free time attending sporting events and exploring the Triangle food scene.