In March, AdvocacyDenver filed a complaint against Denver Public Schools with the Colorado Department of Education, alleging that DPS systemically denied Black students who were identified with disabilities and placed in affective needs programs an appropriate public education.
Rachel Dore, the state complaints officer for the education department, agreed with AdvocacyDenver, issuing a decision on September 7 that affirmed the problems it had identified and directing the district to take corrective action.
The DPS's affective needs program operates at 33 schools, from elementary to high school; students placed in the program are identified as having social, emotional or behavioral struggles associated with a disability. About a third of those students are Black, while only 14 percent of all DPS students identify as Black.
“The district admits Black students are consistently overrepresented in center programs,” Pamela Bisceglia, executive director of Advocacy Denver, says of the affective needs program. “White students are consistently underrepresented. … We stated concerns in terms of the evaluation procedures; we saw that they were biased.”
Bisceglia, who has worked in the disability education space for over a decade, says that DPS has always had a problem of over-identifying Black students, particularly boys, as having emotional disabilities.
In addition to finding that Black students were overrepresented in the program, Dore found that some students were not evaluated in their primary language, and that evaluations for students weren’t properly revisited.
“There should be a pathway for them to leave the program,” Bisceglia says. “That was one of the issues and concerns that we have, is we see that a student might be assigned to an affective needs program when they're in elementary school, and then we see them continuing that program in middle school. It isn't always clear what the student needs to demonstrate in order to move to a less restrictive environment.”
Legally, students are required to be educated in the least restrictive environment possible. Before assigning students to an affective needs program, where they are separated from the general student population, schools are required to exhaust other strategies for helping with their behavioral and emotional needs. According to the decision, the school district only did so in 24 percent of the cases.
“We knew that there were concerns and issues, but it really has been shocking, the scope,” says Julie Rottier-Lukens, executive director of the Office of Exceptional Student Services for Denver Public Schools. “We, and I include our district leadership team, including the superintendent...are immediately prepared to address this head-on.”
According to Rottier-Lukens, identifying and dismantling systems of oppression within DPS is a priority for Superintendent Alex Marrero, and reforming affective needs programming is a first step for the Office of Exceptional Student Services, which includes special education and special services.
The office, formerly called Student Equity and Opportunity, was reorganized in 2021, after the district acknowledged that the affective needs programming was an example of institutional racism and pledged to reform it, establishing Project DISRUPT. But nothing changed, Bisceglia says, and in June 2021, Project DISRUPT was shuttered.
Its work now continues through Project Continuum, which is taking a broader look at the special education department. “What we found was that there were concerns regarding least restrictive environment and supports along the continuum for many different areas of kids with disability and or giftedness,” Rottier-Lukens says. “That was the rationale for shifting the project to focus on the continuum of programming in different areas to make sure that we were addressing needs of various students.”
But Bisceglia didn’t approve of the broader focus, arguing that the district was going back on its commitment to the students in affective needs programming, who have one of the lowest graduation rates. “There was a promise that they were going to do something, that they recognize the issues, that they recognize the harm that their practices were causing,” she says. “At the last minute, they said, ‘No, we're going to put this on the back burner. We're not going to move this forward.’ And we were concerned that something needs to happen for these students.”
Two months after DPS shut down Project DISRUPT, AdvocacyDenver filed a complaint with the U.S. Department of Education Civil Rights Officer regarding problems in the affective needs program. That investigation is still pending, so Bisceglia decided to file a complaint with the state in March.
Dore’s decision on that complaint includes five conclusions. The first affirmed that the district systemically failed to conduct comprehensive evaluations and make appropriate eligibility determinations.
The second found that the district failed to provide a least restrictive environment; among other things, it failed to ensure that students in affective needs programming could participate in extracurricular activities. “The district argues that if a parent wanted their child to participate in an activity at another school…they could have applied for that,” Bisceglia says. “Yet there was no evidence that showed that that was ever offered, or that any parent knew about that.” Those concerns extend to field trips and after-school clubs, as well, she notes.
The third conclusion determined that the district failed to issue written notice of placement changes to parents. Since only 33 schools have affective needs centers, students placed in those programs often must go to schools other than their neighborhood schools, and parents weren’t always properly informed.
The fourth conclusion found that teachers at two schools didn’t possess the proper certifications and licenses to teach in affective needs programs; Bisceglia says that shows the district's lack of support for teachers. “Something that didn't come out in the report is the fact that — there were just a couple of exceptions — almost every single teacher at an affective needs center program has less than three years, many times two years, of experience as a teacher,” Bisceglia says.“They have probably wonderful intentions, but the only training that they're provided by the district is how to use the Enrich program to write [Individual Education Plans] and how to physically restrain the students.”
Individual Education Plans direct how students within special education programs will be treated in classrooms in order to better their educational outcomes. The fifth conclusion in Dore’s decision found that Denver Public Schools failed to “develop, review and revise IEPs tailored to students’ individual needs.”
That conclusion speaks to students lacking a pathway out of affective needs programming and hinders academic progress for students in the program, Bisceglia says. Often schools focus on behavioral improvements rather than academic progress or give students the exact same IEP year after year even when goals aren’t met, she adds.
In its ruling, the state issued remedies. By October 1, the district must submit a corrective action plan to the Colorado Department of Education. As part of that plan, the CDE will provide training to the district by January 2023. The plan must include updated procedures regarding location determination by October 31 and a review of all current evaluations by June 2023, which will then be used to craft new policy.
Rottier-Lukens says the district is not only prepared to meet all the requirements in the decision, but to go further.
“One of the things that we intend to do to go beyond that is to invite and include more individuals to participate in those trainings,” she says. “For example, the focus of the findings was on the teachers in the [affective needs] program and their mental health providers. ... We want to expand to really consider special education teachers across the board, because kids are first identified in their neighborhood school. We want to ensure we're building the understanding at that level before kids get to the referral of being placed in a most restrictive setting.”
In light of the decision, the district also plans to look into other, similar programs. “As a district, and as the leader of this department, we definitely take accountability and responsibility for this problem,” Rottier-Lukens says. “It didn't just start. This has been an ongoing issue for, likely, decades, but we are prepared and committed to address this and really change the system.”
That the state is stepping in to train the district shows how big the problem is, according to Bisceglia.
“Some people would say this is one of the biggest decisions that the Colorado Department of Education has ever issued,” she says. “It speaks to the largest district, and it puts the district under close monitoring. It's a decision where they say: Your procedures may be well defined, but we don't know that you understand them, or any of your teams understand them.”