Parents Of Special Needs Children Join Appeal Of Education Funding Decision

Julie Swanson of Durham

Julie Swanson, of Durham, is the mother of a grown son with autism and a special education advocate. She is part of group that has joined with the state in its appeal of a Superior Court judge's ruling that would radically change the way public education is funded in Connecticut. Swanson and advocates across the state were stunned by Judge Thomas Moukawsher's suggestion that school districts could deny educational services to profoundly disabled students. (Cloe Poisson)

Parents and advocates have joined in the state's appeal of a judge's ruling striking down Connecticut's school-funding formula, seizing on language that described some children with profound developmental disabilities as possibly incapable of learning and unworthy of local education dollars.

"These were the arguments of the 1940s and 1950s, when they wanted to keep children in institutions," said Shira Wakschlag, the lead lawyer for The Arc in Washington, D.C.

"Not only does it violate federal law, it flies in the face research that says that even children who do not look like they are learning, are taking in information," Wakschlag said.

Her organization has joined the Connecticut chapter of The Arc, a constellation of national disability-rights groups, and a dozen Connecticut parents of students with developmental disabilities, in the filing of three amicus briefs. They serve to complement Attorney General George Jepsen's appeal of Superior Court Judge Thomas G. Moukawsher's decision in September.

In sworn affidavits collected by special-education lawyer Andrew Feinstein, the parents described battling school districts for educational programming for their children and the progress that many of the children made when they were given the chance. As the children grew, the parents said, in many cases they required less medication and less intense staff supervision, and became markedly more independent.

Julie Swanson Augeri's son, Alex, has autism, an intellectual disability, and doesn't speak. Beginning when he was 3 years old, Swanson Augeri, of Durham, had to battle for services far more extensive than school officials were prepared to offer.

"Had I accepted the minimal progress and outlook that many in the system expected for him, I feel his behaviors and lack of skill would have become barriers to a meaningful life," Swanson Augeri said in her affidavit.

In an interview, she said, "Alex would have been one of the children the judge was talking about, as not being worthy of an education."

Now 22, Alex, works at horse farm, volunteers at a hospital, has a host of friends, and is independent in most of his daily activities. Had he not had the opportunity to progress in school, he would require much more public funding for his support than he does now, Swanson Augeri said.

"He has a life full of meaning," she said.

The national groups said they felt compelled to join in the appeal because the implications of the judge's opinions on special education were too explosive to ignore. And the stakes are even higher now, they said, as Betsy DeVos, President Donald J. Trump's nominee for secretary of education, seeks confirmation from Congress. DeVos favors leaving special-education funding decisions up to the school districts in individual states, which often balk at the costs. Her opponents point out that federal law guarantees a free and appropriate education for all students, including those with disabilities.

"When she said special education should belong to the states -- that is just frightening and of course it violates federal law," said Nancy Alisberg, the top lawyer for Connecticut's Office of Protection and Advocacy for Persons With Disabilities.

Alisberg assisted the National Disability Rights Network, based in Washington, D.C., in filing its amicus brief with the Connecticut Supreme Court.

Moukawsher ruled in a longstanding lawsuit pitting an atypical coalition of teachers and school administrators, and cities and suburbs, against the administration of former Gov. M. Jodi Rell. He rightly pointed out inequities in a state with both impoverished schools and sublimely wealthy ones, but he ventured into areas that are the responsibility of elected lawmakers, not a single appointed judge, say critics of the ruling.

The judge found that the state's funding of education met the Constitutionally required minimums, which was a blow to the coalition's case and is where Jepsen wanted him to stop. But the judge went further, saying the system by which the state funds schools was "irrational" and often not linked to teaching children. Ruling in September 2016, he gave the legislature until March to propose a new system which he would assess.

And he went further. Referring to special education, the judge said, in part, "The call is not about whether certain profoundly disabled children are entitled to a 'free and appropriate education.' It is about whether schools can decide in an education plan ... that the child has a minimal or no chance for eduction, and therefore the school should not make the expensive, extensive, and ultimately proforma efforts."

That language, said Feinstein, one of the state's most seasoned education lawyers, "would give school boards license to provide substantially less services. As it stands now, many skimp anyway, and some just babysit."

Intentionally or not, Moukawsher's ruling "pits special education students against regular education students," said Shannon Jacovino of The Arc Connecticut. "If this happened with students' race or religion, there would be a massive outcry."

Wakschlag, of The Arc in Washington, D.C., said research shows that non-disabled students benefit on many levels from having disabled students in class.

Both the coalition and the state view Moukawsher's ruling as flawed and are appealing. Among the arguments of Jepsen and Associate Attorney General Joseph Rubin are that Moukawsher's ruling is overbroad, and that he ventured into policy areas that are the province of an elected legislature.

In an op-ed piece in The Courant a month after the ruling, Moukawsher revealed that he has struggled most of his life with attention-deficit/hyperactivity disorder.

"[W]e are entitled to be judged as individuals and, as we all should be, with reason and common sense," Moukawsher wrote of those with similar impairments. "After having said nothing about this to virtually anyone at any time, I think it may be worth it for someone in my position to share my story and assert my conviction that our group is everywhere, is of every stripe, and can do everything."

Moukawsher did not say why he chose to raise questions in his ruling about whether schools should pay to educate certain children with profound disabilities, a position that Feinstein described in his brief as nothing less than "utterly cruel."

Rhonda Stearley-Hebert, spokeswoman for the Judicial Branch, said Moukawsher can't comment on his ruling because the code of conduct bars judges from remarking about pending matters.

Jepsen said he welcomed the amicus briefs.

"We are in agreement," Jepsen said in an interview. "This decision violates federal law. Speaking personally, as a citizen, my heart goes out to these families."

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