How Grassroots Effort Saved a Deaf Program at Evergreen Public Schools

How Grassroots Effort Saved a Deaf Program at Evergreen Public Schools

Cedar Law recently had the exciting opportunity to come together with teachers of the Deaf, Deaf education advocates, and parents of Deaf students in Evergreen Public Schools (the “District”) in Vancouver, Washington to change the future of Deaf education in the District and thwart the efforts of several hearing District administrators that wanted to shut down the District’s Deaf and Hard of Hearing (“D/HH”) program at Fircrest Elementary. The effort to save the D/HH program would not have been possible without the voracious efforts of teachers, activists, and parents working together in conjunction with Cedar Law employing the legal tools available to protect the education of Deaf students.

Background

Evergreen Public Schools sits in the proverbial backyard of the Washington School for the Deaf (“WSD”) in Vancouver. WSD is a fully immersive school for students with hearing loss where students are educated directly in American Sign Language (“ASL”). The school draws Deaf professionals and families to the area making Vancouver a unique city with a larger population of Deaf students than other similar sized cities.

For Deaf and Hard of Hearing (“D/HH”) students within the District, WSD might be a good option for some D/HH students that need to be totally immersed in ASL, but for elementary students that do not need that level of immersion, Fircrest Elementary provided a good in-between option between WSD and the student’s neighborhood school. Over the last 20 years, Fircrest Elementary housed a small cohort program of D/HH students. This program — colloquially called the “Fircrest D/HH Program” — filled a gap in services for D/HH students as it allowed them to access general education and hearing peers, without facing the total isolation of being the only Deaf student in their neighborhood schools.

The Fircrest D/HH Program had skilled teachers of the Deaf, interpreters, audiologists, and speech services on site for students. The consolidation of those services at one school was a huge cost savings for the District. On the continuum of available educational placements for D/HH students, the Fircrest D/HH Program served unique niche of students that still required access to ASL for language development, Deaf community awareness, and formation of a strong Deaf identity while still being able to integrate into general education with interpreter services when the student was able. Placement at Fircrest Elementary was up to each student’s individualized education plan (“IEP”) team to consider. Under the Individuals with Disabilities in Education Act (“IDEA”), placement determinations should be made based on each individual student’s needs and consideration for what environment will be the “least restrictive.”

The District’s Illegal Closure of the Fircrest D/HH Program

However, in early 2023, hearing District administrators started ordering the teachers of the Deaf to amend the Fircrest D/HH students’ IEPs to change the student’s placement to the neighborhood school, thereby taking the placement decision away from the IEP team and parents. A neighborhood school is the term that describes the school the student would normally attend based on address. This change effectively would separate all the D/HH students at Fircrest and eliminate the D/HH Program. The teachers of the Deaf immediately recognized the legal and ethical problems with this order from their supervisors. First, the decision about appropriate placement was being taken away from the IEP teams and done in “backdoor dealing.” Second, placement at a neighborhood school rarely reflects the least restrictive environment for D/HH students.

The least restrictive environment (LRE) is a legal term of art under the IDEA. The LRE provision provides that to the maximum extent appropriate, children with disabilities are educated in a regular classroom setting. The purpose of the LRE was to prevent removal of special education students from the classroom with their non-disabled peers.

However, LRE for Deaf students requires a different analysis. After the passage of the IDEA, Deaf education advocates started to become concerned that schools for the Deaf and cohort programs were closing across the country and Deaf students were being mainstreamed at their neighborhood schools. Often these Deaf students would be the sole Deaf child in the school and could not communicate with anyone except their interpreter. Educators and Deaf advocates reached out to the Department of Education with their concerns that Deaf children were being forced into the mainstream environment and being separated from Deaf peers and adults. This change in the landscape of Deaf education was leading to increased language deprivation, isolation, and leaving Deaf students with a fractured sense of identity as they tried to fit into predominantly hearing schools.  The Department of Education recognized the dilemma and issued policy guidance specifically for considering LRE for Deaf students. This guidance says in part:

The Secretary is concerned that the least restrictive environment provisions of the IDEA and Section 504 are interpreted, incorrectly to require the placement of some children who are deaf in programs that may not meet the individual student’s educational needs. Meeting the unique communication and related needs of a student who is deaf is a fundamental part of providing a free appropriate public education (FAPE) to the child. Any setting, including a regular classroom, that prevents a child who is deaf from receiving an appropriate education that meets his or her needs including communication needs is not the LRE for that individual child.

The teachers of the Deaf at Fircrest sounded the alarm when they found out District administrators were planning to eliminate the Fircrest D/HH Program and force all the D/HH students into their neighborhood schools. Initially, they worked with District administrators to educate them about what the Fircrest D/HH Program was providing to students, the increased costs of returning all the students to their neighborhood school, and the impact that change would have on these students and their language development. District administrators ignored the teachers of the Deaf and pushed forward with their decision to eliminate the D/HH program although they had been told that what they were doing violated the law. 

Teachers, Parents, and Deaf Advocates Get Organized

When school administrators failed to change course, the teachers of the Deaf worked to educate parents of children that would be impacted and local Deaf education advocates. As an organized group, the teachers, parents, and advocates rallied together and spoke up at IEP meetings, at school board meetings, sent letters to the school board, contacted their representatives in the State legislature, contacted the superintendent of public instruction, spoke to the local paper, and contacted national and local Deaf organizations. Although there was national attention and scrutiny on the District closing its Fircrest D/HH program, District administrators continued to move forward with their efforts to shut down the program.

Several teachers and parents from this group also approached Cedar Law because of our specific expertise in Deaf education law. Saving an entire program for multiple students is not something that there is a direct legal remedy for under the IDEA, which is narrowly focused on individual students rights. However, given the serious threat facing all the students in this case, we looked for a creative legal approach that could stop the closure of the program. Cedar Law worked with the group to push forward with a “double punch” approach to force District administrators to reopen the doors to the Fircrest D/HH program. 

Cedar Law’s Creative Legal Strategy

Our first punch was to encourage the group to use the community complaint process to file complaints with the Office of the Superintendent of Public Instruction (“OSPI”). A community complaint is a written statement to OSPI, alleging that a federal or state special education rule or law has been violated by a school district. After receiving a community complaint, OSPI investigates, and issues written findings. When there has been a legal violation by a school district, OSPI can order the school district to undergo corrective action.

Our second punch was to represent an individual family in filing a due process hearing request. A due process hearing is an administrative hearing with procedures outlined by the IDEA specific to special education disputes. In most cases, due process hearings are formal, contested, adversarial trials. When we filed our due process hearing request, we invoked the student’s right to remain in his “stay put” placement — which was the Fircrest D/HH Program.

The “stay put” provision under the IDEA is one of the most important legal rights in special education law. “Stay put” rights apply when parents dispute a change the school district wants to make to the student’s IEP. When you invoke this right, the student’s current placement can remain the same until the dispute is resolved. In this case, we asked for the student to be returned to the “Fircrest D/HH Program” as his “stay put” placement until the dispute was resolved.

The judge assigned to the case set an evidentiary hearing on the stay put issue for the first week of October 2023. We believed we had a strong case for forcing the District to return this student back to the Fircrest D/HH Program because his IEP specifically required “a teacher of the Deaf who can communicate directly in ASL;” “access to staff trained in Deaf education;” “peers who are D/HH;” and “a Deaf friendly community where he can cultivate a positive self identity and cultural roots.”

The District informed us that “the IEP could be implemented at the neighborhood school,” but in this case, that argument was a losing one. The District could not actually implement any of these requirements at the neighborhood school because this student’s neighborhood school did not have any D/HH peers that used ASL to communicate. The reason the “stay put” requirement was so powerful in this case is because of the advocacy of the parents and skill of the teachers who wrote the IEP in identifying specifically why the neighborhood school model would not be appropriate for this particular student.

Just as we were preparing for a hearing to prove that “stay put” could not possibly be at the student’s neighborhood school, OSPI issued a decision on the community complaints filed by teachers of the Deaf, Deaf advocates, and parents. OSPI came down hard on the District administrators with a strongly worded decision. OSPI concluded that the District specifically violated the law and denied several D/HH students a “FAPE” in the following ways:

• District administrators violated the IDEA when they improperly predetermined that student IEPs would be amended to reflect placement at the neighborhood school prior to the IEP team meetings; and

• District administrators violated the IDEA when they failed to discuss the full range of special factors and additional considerations for Deaf students including communication with peers and staff, language acquisition, and cultural/community considerations.

OSPI ordered the District to undergo specific corrective actions including holding IEP meetings for all the D/HH students impacted by the changes to the Deaf program at Fircrest. OSPI encouraged the District to consult with the Center for Deaf and Hard of Hearing Youth (“CDHY”) and to invite the CDHY to attend IEP meetings if that would be beneficial.

OSPI also ordered the District to retrain all its special education administrators including program directors and program coordinators, principals, and assistant principals on the following topics:

• Placement and LRE considerations for DHH students.
• Considerations for DHH early learners, including language acquisition and language deprivation.
• Special factors and considerations for DHH students.

OSPI went on to recommended the following:

OSPI notes that the Complainant, Parents, and TODs shared their experience, expertise, and concerns related to DHH student access to DHH peers, language and communication development, and a sense of culture and community. Information was shared about how much of this already exists at the school highlighted in this complaint. OSPI recommends the District form a workgroup to explore the concerns around culture and community for DHH students, what inclusion means for DHH students, and school culture.

With this decision in hand, the District reached out to the parents that filed the special education lawsuit and asked that they try to settle that case as they knew they were likely to continue to lose. For the student involved in the lawsuit, the District agreed to return the student to Fircrest and pay all attorney fees. The District also agreed to the following conditions:

1. As the District is holding IEP meetings for D/HH students, the students’ IEP teams will not foreclose Fircrest Elementary School as an option where those students may receive the services in their IEPs;

• The District will schedule a training for parents of DHH students that will cover the following topics: placement and least restrictive environment considerations for DHH students; considerations for DHH early learners, including, language acquisition and language deprivation; and special factors and considerations for DHH students; and

• The District will form a workgroup to explore the concerns around culture and community for DHH students, what inclusion means for DHH students, and school culture. The District will consult with the CDHY in forming this workgroup.

The District’s agreement effectively reopened the Fircrest D/HH Program, but continues to require the parents to organize that program back into existence. It is important to note that the District only agreed not to “foreclose Fircrest Elementary as an option” but the District would not agree to affirmatively inform any parents that this was an option on the continuum of placement options at IEP meetings or agree to correct any misinformation the District had previously given to parents about the Fircrest D/HH Program. We believe the District’s failure to affirmatively inform parents (and potentially withholding important information from parents about the continuum of placement options) continues to violate the District’s obligations under the IDEA and we would encourage the District to start taking its legal obligations to D/HH students seriously.  However, we would also encourage all the parents of D/HH elementary age children in the District to ask your IEP team about the available programming at Fircrest. We believe the District has underestimated the power of parents and advocates to organize within their own boundaries and we would encourage parents to reclaim the power given to them by law by working together with other parents to design a program that would be meaningful to them and their children.

If you are a parent of a D/HH child and believe that your child is being denied access to a FAPE (at Evergreen Public Schools or any other school district in Washington State) please reach out to Cedar Law and ask about potential legal remedies. Additionally, Washington Hands and Voices provides support through their Guide By Your Side program. Washington State Hands & Voices is a non-profit parent led organization that offers support and information to families without a bias towards any one communication modality or language approach. We help families focus on the needs of their individual child. This also applies to LRE, working with families to identify special factors specific to their child’s unique needs.