Judge allows Kanawha students with disabilities case to become a class-action lawsuit

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This article was published on The Charleston Gazette-Mail by Ryan Quinn on August 25, 2021.

A federal judge has opened the door to allowing an ongoing lawsuit to dramatically change the way Kanawha County public schools must support children with disabilities and behavioral issues.

U.S. District Judge Irene Berger ruled Tuesday that what was a 2020 lawsuit filed by parents of just a couple of students, and a national disabilities rights group called The Arc, can become a class-action lawsuit.

The suit could now possibly encompass more than 1,000 children who need behavior supports and have faced disciplinary removals from any classroom. That’s not counting the future children impacted by possible policy changes stemming from this litigation.

“We can now proceed to hopefully change the way Kanawha County is providing services to all students with disabilities, not just those individual kids,” said Lydia Milnes, an attorney for the nonprofit law firm, Mountain State Justice, that’s representing the children. “So the families have always, since the beginning, wanted to see change that was bigger than just them.”

The suit is demanding changes and the appointment of an independent monitor to ensure the possible future court order in the children’s favor is followed. It also asks for payment of attorney fees and costs, but not payouts to the families for past or current damages.

The county school system, which declined comment Tuesday, had tried to stop the suit from growing into this.

While Berger didn’t rule Tuesday on which side will ultimately win the case, she cited excoriating testimony from an expert witness for the students’ side.

Berger wrote that the expert, Dr. Grace “Judy” Elliott, testified that a “significant number of students” had “over 10, 50, or even 100 suspensions during the two-plus years for which [Elliott] received records.”

Amid recounting Elliott’s testimony, Berger wrote that the district “rarely provides behavior supports that are customarily offered in other school districts, including training for students in social skills, anger management, and self-control, de-escalation supports, re-integration following suspensions, processes for regular check-ins with adults, and cognitive behavior supports.”

Berger also pointed to testimony from Kanawha’s former special education director, Kate Porter, that “the District does not monitor each school’s behavior policies and administration of discipline,” save for when suspensions exceeded 10 days.

“Here,” Berger wrote, “the Plaintiffs presented expert evidence that combined statistical analysis of the disproportionate rates of suspension for students with disabilities with detailed qualitative analysis of student records isolating the deficiencies in behavioral supports that led to those suspensions.”

Berger, who serves the Southern District of West Virginia, wrote that “students with disabilities in Kanawha County are subject to disciplinary removals at a rate disproportionate to their non-disabled peers, and at a higher and more-disproportionate rate than students with disabilities in most other school districts in the state and most other large school districts nationally.”

“Dr. Elliott’s report reveals a lack of oversight and training at the district level, which deprives school-level IEP teams with the direction and resources necessary to support students,” Berger wrote. “As a result, classroom teachers without adequate training bear the burden of identifying students who require behavior supports and designing such supports for the complex, individual needs of students with a variety of disabilities.”

Berger wrote that “Dr. Elliott identified similar procedures and deficiencies throughout the district, including inadequate attention to root causes of behavior, mis-classification of disability eligibility categories, failure to collaborate with parents to design effective and consistent BIPs (behavior intervention plans), a failure to consistently implement BIPs or less formal behavior support plans, and a lack of evaluation and adjustment to plans over time to reflect the responses and changing needs of students.”

The judge also ordered that the two sides try to mediate the dispute before litigation continues.

Milnes, the attorney for the students alongside lawyers from other firms, said “we would rather spend our resources and the district’s resources working together on the reforms that are needed, rather than continuing to litigate, so we will certainly be coming to the table.”

Lori Waller, a staff attorney for Disability Rights of West Virginia and another lawyer representing the students, said her group “is very pleased this case has been given class certification and can move forward. It is an important case not just for students in Kanawha but for students throughout the state as well. We look forward to the mediation and improving the school experience for children with disabilities.”