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State Ready to Settle 2007 Lawsuit Over Placement of Special-Ed Students

Federal complaint challenged DOE’s lax oversight of requirements for 'least restrictive environment'

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A seven-year-old federal lawsuit challenging the state Department of Education’s oversight of special education in New Jersey is close to settlement.

The state Board of Education was expected yesterday to put the final signature on the case Disability Rights New Jersey et al. v. New Jersey Department of Education, et al. The board’s meeting was canceled due to the weather, with a rescheduled date yet to be announced.

Once signed by the board and approved by the federal District Court Judge Mary Little Cooper, the agreement would bring to a close a suit filed in 2007 by the state’s top disability advocates over the state’s failure to adequately ensure special education students were being served in the “least restrictive environment,” as required by law.

New Jersey has been notorious for the high percentage of special-ed students taught in separate settings, especially in out-of-district schools.

The state at the time the suit was first filed had less than half of special education students taught predominantly in the general education classroom, a rate that hasn’t much changed. Further, more than 10 percent of students were in outside schools, by far the highest rate in the country. That percentage has dropped to 7.2 percent in 2012, the latest available data.

“As a result of Defendants’ failures, countless children with disabilities have been denied an appropriate education,” read the initial 40-page complaint. “Children with disabilities are unnecessarily segregated and denied their right to be educated with children who do not have disabilities, to the maximum extent appropriate. ”

“Some children with disabilities are placed in general education classrooms, but are denied aids, services, and accommodations needed to receive an appropriate education, and many children are not even placed in general education classrooms.”

A department spokesman this week would not comment on the settlement until the board had approved it, but a lead attorney for the plaintiffs said it would be an important agreement once completed.

“It’s a big case and very exciting to be at this point,” said Ruth Lowenkron of the Education Law Center, one of four plaintiffs. “We have been working a long, long time on the case and the settlement, and this is the final piece of it.”

The other plaintiffs were New Jersey Protection and Advocacy, ARC of New Jersey, and the Statewide Parent Advocacy Network (SPAN).

Lowenkron also would not speak to the details of the proposed agreement until it is wrapped up, but she said it addressed the department’s role in providing training, technical assistance, and monitoring of special education services in districts.

She said it would have specific deadlines over the next three years and be “very prescriptive.” There would not be specific targets for the state to meet in terms of placement rates, nor did she say it would include funding to districts or compensation to families affected.

Under pressure from the federal Department of Education over its track record on “least restrictive environment” requirements, the state department has long contended that it has made improvements and has cited tighter compliance and monitoring of districts.

But Lowenkron said the improvements were not enough, and the agreement would lay out more aggressive steps that the department would agree to take. She said that state Education Commissioner Chris Cerf had already signed the agreement.

“Certainly there has been some improvement, but it has been modest at best,” she said. “There is much more to be done.”

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