Some three years and $100,000 still haven't ended one Ogden family's fight for the public education to which they believe their son is entitled.
The parents, identified as L.C. and K.C. in federal court records to shield the boy's identity, are suing the Ogden School District for allegedly failing to provide the special education the boy requires and are accusing the state of delaying the complaint process.The "medically fragile" boy, who has learning disabilities and attention deficit and communication disorders, has been through hospitals and private tutors trying to get back on track in school.
"So many kids get lost in the cracks because families feel like it's so hopeless," the boy's mother said. "But I feel we can be a beacon of light and be advocates and give them hope."
While the case being prepared for federal trial is one of the few to climb to the court system, many families understand the heart-wrenching battle for solutions for a child with disabilities.
And more Utah parents are becoming aware of the Individuals with Disabilities Education Act (IDEA) and taking school districts to task. In fact, a record number of parents have formally complained under the law this year.
Yet the schools say they are complying with IDEA. In the Ogden case, and others reaching federal courts, two state hearing officers have agreed the district is doing its job. And IDEA doesn't require schools to maximize children's potential -- which they probably could never afford to do, anyway -- just to ensure the child receives some educational benefit.
In a cash-strapped state that sometimes spends up to $150,000 per year to educate one child with severe multiple disabilities and health needs, schools are doing everything they can, said Ginger Rhode, special education coordinator and state and federal compliance officer for the State Office of Education.
"School people feel they are being personally attacked (that they) don't care about kids, and parents feel school districts are indifferent and not providing children with what they need," Rhode said. "No matter who wins, everybody loses."
Requests for due-process hearings under the act are rising in Utah and nationally. Officials and parents chalk the numbers up to increased awareness of IDEA, intended as a safeguard for the nation's 6 million children in special education.
Utah has received 17 requests, four times last year's numbers, the State Office of Education reports. Of those, two, plus another from last year, are pending in federal court, and 12 have been mediated or resolved. No one requested hearings in 1995; the previous high was in 1991, with 12 requests.
"Ours seems high to us because traditionally in Utah, we've typically had good communication between school people and parents," Rhode said. "I think that's gone a long way to avoid what other states are experiencing."
Judith E. Heumann, assistant secretary of the U.S. Department of Education, Office of Special Education and Rehabilitative Services, said the numbers are low compared to other states. The rise may be attributed to officials helping to increase parental awareness of the law.
"There's been some good work going on in Utah," Heumann said. "I would look at the increase in numbers of complaints . . . and utilize that to help me continue to work on my professional development and provide technical assistance to local school districts."
Some attorneys wonder why more Utahns aren't complaining. Either the state has a model education system or parents, though they receive information about the federal law, don't know their rights or how to pursue them, said Diane Lipton of the Disability Rights Education and Defense Fund in Berkeley, Calif.
Consider: California logs about 1,500 requests for due-process hearings annually. Most are mediated, Lipton said. But that state has 650,000 special education students -- more than Utah's entire school population. Utah has about 50,000 students in special education.
Complaints are filed under the IDEA, which for 25 years has required a free and appropriate public education for students with disabilities. The law requires that parents and schools map education goals for each child and that students receive the "least restrictive environment," or stay in the regular classroom as much as possible, among other points.
The Supreme Court has ruled schools don't have to provide a maximum education to special-needs children, but their education must have some real benefit. No such standard has been applied to regular education, so equity is hard to measure, officials say.
Yet interpretations abound. Schools believe they follow the law and correct themselves if they don't. But Rob Denton, an attorney with the Disability Law Center, says schools rely on the lowest standard when disagreements arise, breeding mistrust among parents.
"Certainly kids suffer when education programs they receive are geared only to provide some non-trivial benefit and nothing more," Denton said.
But that is subject to interpretation. "Just because a program does not meet parent demands does not mean the program is inappropriate," said Doug Bates, state director of school law and legislation.
For instance, parents have fought to keep children with severe behavioral problems in the regular classroom, even after the child has injured teachers, Bates said.
Some parents have complained their children don't have interpreters for the deaf -- who are in short supply partly due to low pay -- as the act requires. The state scrambled to find more interpreters to resolve the issue. It also has sought grants to help recruit special educators, who are becoming a rare breed, said Mae Taylor-Sweeten, state director of at-risk student services.
The Ogden case takes on the process, which the parents say takes too long to render decisions and is unfair.
Hearings are supposed to be resolved within 45 days. But the system can take months with extensions and time spent getting both sides to agree on a hearing officer, Rhode said.
The first hearing in the Ogden case alone took 13 months, the lawsuit says. "In my opinion, it's a futile process in Utah," mother K.C. said. "I think there are definite ways to make this more fair."
The state office is examining whether to shorten time lines, Bates said. And Rhode in the next few weeks plans to propose the State Board of Education adopt a rotating hearing officer list to help speed the process.
But K.C. would want safeguards to ensure the hearing officer indeed is randomly chosen. Really, she would rather see districts and parents cooperate in impartial mediation than rack up legal fees.
"I feel a lot of taxpayers' dollars have been wasted on a very unfair process -- both money for the school district and money that could go to children," K.C. said.
Hearings are like going to court and can cost a district $50,000, although some cases have cost as much as $120,000, Rhode said.
That concerns the State Board of Education. In September, a committee discussed whether to seek additional state funds for litigation but decided against it, said board member Kim Burningham.
If the matter goes to court, costs increase -- and courts are beginning to decide whether parents can seek damages. That could help parents but hurt school districts, said assistant attorney general Peggy E. Stone, who is defending school districts in two cases.
"We may be harming the very kids we're trying to help because if school districts are bankrupt by huge awards, are they going to be able to provide special education services to everyone?" Stone said.
U.S. District Court in Salt Lake City soon may have to weigh that issue.
In a different lawsuit filed against the Salt Lake City School District, a mother claims the district did not continue special education services a boy received in California. Three years later, when the district declared him eligible for special education, it did not live up to agreed education plans, the lawsuit states.
"This is not a case to get rich. I think (the mother) would like to recoup some expenses in providing counseling and tutoring and pursuing due-process claims," said the mother's attorney, Cameron S. Denning.
K.C. also wants schools to repay what her family has spent on private tutoring and attorney's fees. "I think it's only fair that parents get back, especially when they go through a process that's futile," she said.
But she said she's not driven by bitterness.
"The important thing about this is we all learn from it," she said. "It's important we find a way to work together to make us more united."