Suit Claims DPS Caused Teachers' Strike That's Hurting At-Risk Kids

The Denver teachers' strike is rolling into its second day, and while Denver Public Schools and the Denver Classroom Teachers Association union are slated to renew negotiations at 10 a.m. today, parents and guardians remain anxious about the possibility of an extended walkout that could result in more chaos of the sort that took place at East High School, where very little learning appears to have taken place yesterday.

Now, a new federal class-action lawsuit targets more fallout from the strike. The complaint contends that DPS precipitated the union's actions by failing to treat teachers fairly, thereby causing thousands of disabled children in the district to miss out on the services they so desperately need.

The document was filed on February 11 by attorney Igor Raykin of the Aurora-based law firm Kishinevsky & Raykin. DPS spokesperson Will Jones maintains that the district has not been formally served with the suit but offers a strong rebuke of the assertions based on its reading of a "courtesy copy." (Westword provided that copy; it's accessible below.)

"We are committed to keeping our students safe and supported," Jones states via email. "We will continue to monitor our allocation of staff supports in an effort to meet the unique needs of all students for the duration of the strike."

Schools in the DPS system remain open, but substitutes and administrators are filling in for teachers participating in the job action. The "statement of facts" section of the suit maintains that this plan is inadequate when it comes to more than 10,000 DPS special-education students, who "are in need of the most critical support to maintain their health and safety," including enrollees "with severe intellectual disabilities and serious health conditions" for whom Individualized Education Programs (known as IEPs) and/or so-called 504 plans have been tailored.

According to the suit, "These students require assistance from essential employees, such as special education teachers, counselors, social workers, school psychologists and therapists, and medical needs such as feeding tubes or breathing apparatuses operated by those employees and school nurses. Without these critical services, these students' health and safety would be in jeopardy. They could get hurt, hurt themselves and/or hurt others," especially given that subs will likely have "inadequate training and experience necessary to meet the needs of disabled children in DPS."

The plaintiff in the suit is E.A., whom Raykin identifies as "a child on a 504 plan due to ADHD. But this is not exclusively about E.A.," he continues. "We could have filed a civil-rights complaint based on E.A., but the larger concern is for all of the kids at DPS with special-education plans. So we're seeking to get certification that would allow us to file on behalf of every single student on an IEP or a 504 plan — that is to say, every disabled student in DPS."

For Raykin, this effort is personal.

"I worked in public education for ten years, including six years teaching in the juvenile system at Lookout Mountain," he says, "and my wife is a special-education teacher with DPS whose job is much harder than anything I've ever done. And we have a lot of friends who are teachers with DPS. I love teachers, and I don't blame them one bit for going on strike. I'm totally supportive of the teachers. I think teachers have been treated horribly and have been underpaid by DPS for years."

Worries that special-ed students in the district could be harmed in a conflict between DPS and the DCTA first surfaced for Raykin and his firm, he explains, "after seeing what happened with the L.A. unified school district," which went through a six-day strike last month. "When the teachers went on strike, they stupidly decided to sue the teachers' union to say that all the special-education teachers and special-service providers couldn't go on strike because there are federal laws that mandate special-education services for kids. A judge tossed that."

Nonetheless, Raykin believes that any interruption in care for disabled students in Denver is unacceptable — and based on his observations, he argues that "DPS took no steps to make sure that they would get the services they need. They could have had a vetting process for substitutes to make sure they had special-education training. They could have checked with other districts that use special care providers. But as far as I know, that wasn't done. Thousands of kids are not getting any services, and I don't know when they're going to get compensatory services."

This last term requires some explanation. IEPs typically designate services for special-ed students on a minutes-per-week basis. Making up time missed because of a strike would require compensatory services that would essentially add the time from previous days to the regular amount. If the strike lasts a week, a student designated to receive 120 minutes of instruction shouldn't lose that time, but get it added to care once the teachers return.

"This isn't a money suit," Raykin stresses. "This is about the kids getting the help they need."

In his statement, DPS spokesman Jones disagrees with Raykin's supposition that special-ed students have been forgotten amid the strike. On February 11, he says, "the district...checked in with all of the schools that have a center program for students with disabilities, and school leaders report that they are well supported."

Jones adds: "The lawsuit does not name any specific students being denied services under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act. Instead, the lawsuit appears to be based on speculation that students will be denied services as a result of the strike."

And that's not true, Jones insists. "When the potential for a strike became apparent, DPS immediately began planning to prioritize supports for our most vulnerable students, particularly our students with disabilities," he writes. "We actively recruited substitute teachers with special education endorsements and expertise. We also committed to deploying central office employees with a wide range of special education skills and specialties to our schools in the event of a strike, including licensed special education teachers, licensed principals, behavioral technicians, school social workers, and school psychologists. As we planned for the strike, we prioritized placement of both substitute teachers and central office employees in schools serving students with the most significant needs. We also developed a robust plan to ensure the availability of qualified staff to administer medications to medically fragile students and other students in need of medical support."

To prove otherwise in court, Raykin acknowledges, "we first have to get the court to agree that they're going to certify the class. In other words, the court would have to authorize us to move forward to represent an entire class of kids rather than one kid. But we're not overly concerned about that. I think we meet the elements of a class action, but that may slow things down a bit" as the case progresses through the justice system.

In the meantime, Raykin hopes that the suit turns a spotlight on at-risk students and pressures Denver Public Schools to give them the attention they deserve. "To tell you the truth, I'm much more interested in having these kids receive the services they need than being in a lawsuit with DPS for many years," he says. "If the district can do right by them, we can all move on."

Click to read E.A. v. Denver Public Schools.