L Doe v. R.I. Bd. of Educ.
| Decision Date | 14 June 2022 |
| Docket Number | C. A. PC-2020-2619 |
| Parties | L DOE, S DOE, and A DOE, on behalf of their children, X DOE, Y DOE, and Z DOE, and on behalf of similarly situated children in the Providence School District v. RHODE ISLAND BOARD OF EDUCATION, COUNCIL ON ELEMENTARY AND SECONDARY EDUCATION, AMY BERETTA, COLLEEN A. CALLAHAN, BARBARA COTTAM, KAREN DAVIS, GARA BROOKE FIELD, JO EVA GAINES, MARTA V. MARTINEZ, DANIEL P. MCCONAGHY, and LAWRENCE PURTILL, in their official capacities as members of the RHODE ISLAND BOARD OF EDUCATION, COUNCIL ON ELEMENTARY AND SECONDARY EDUCATION, and PROVIDENCE SCHOOL DISTRICT |
| Court | Rhode Island Superior Court |
L DOE, S DOE, and A DOE, on behalf of their children, X DOE, Y DOE, and Z DOE, and on behalf of similarly situated children in the Providence School District
v.
RHODE ISLAND BOARD OF EDUCATION, COUNCIL ON ELEMENTARY AND SECONDARY EDUCATION, AMY BERETTA, COLLEEN A. CALLAHAN, BARBARA COTTAM, KAREN DAVIS, GARA BROOKE FIELD, JO EVA GAINES, MARTA V. MARTINEZ, DANIEL P. MCCONAGHY, and LAWRENCE PURTILL, in their official capacities as members of the RHODE ISLAND BOARD OF EDUCATION, COUNCIL ON ELEMENTARY AND SECONDARY EDUCATION, and PROVIDENCE SCHOOL DISTRICT
C. A. No. PC-2020-2619
Superior Court of Rhode Island, Providence
June 14, 2022
For Plaintiff: Ellen M. Saideman, Esq. Veronika Kot, Esq.
For Defendant: Paul V. Sullivan, Esq.
For Interested Party: Andrew Henneous, Esq.
DECISION
VOGEL, J.
L. Doe, S. Doe, and A. Doe, on behalf of their children, X. Doe, Y. Doe, and Z. Doe, (collectively, Petitioners) bring this appeal from a March 3, 2020 Decision by the Rhode Island Council on Elementary and Secondary Education (Council) affirming a March 8, 2019 Ruling on the parties' Cross-Motions for Summary Judgment.[1] In that Ruling, the Hearing Officer found that the Providence School District's (the District) Collaboration/Consultation Model for the
provision of English Language Learner (ELL) services does not violate the Rhode Island Regulations Governing the Education of English Language Learners (State Regulations).[2] This Court exercises jurisdiction over this matter pursuant to G.L. 1956 §§ 42-35-15 and 16-39-4. For the reasons set forth below, this Court reverses the Hearing Officer's Ruling and remands the matter for further proceedings consistent with this Decision.
I
Facts and Travel
During the time period at issue in this appeal, Petitioners and their children resided in Providence, and the children were enrolled in schools within the District. (R., Ex. 35 (Joint Stips. Fact), ¶¶ 2-3.) All three children qualified as ELLs and spoke Spanish at home. Id. ¶¶ 3-4. As students with disabilities, the children also received special education services under the federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq. Id. ¶ 5.
With respect to the individual children, as of July 2016, X. Doe was an eleventh-grade student with learning disabilities who "scored 324 SS on her most recent STAR reading assessment . . . placing her at the 1st percentile when compared with typical peers." Id. ¶ 6
Y. Doe was a ninth-grade student with learning disabilities who scored 284 on the STAR reading assessment. Id. ¶ 8. School records described Y. Doe's "Model of Services" as "sheltered content instruction" for the 2013-2014 school year, and as "Collaborative ESL and sheltered content" for the 2015-2016 school year. Id. ¶ 9. However, the school records further revealed that Y. Doe did not receive any hours of ELL services and did not have an ELL teacher of record during those same two school years. Id.
Z. Doe was a second-grade student whose mother signed a waiver of ELL services on March 13, 2013. Id. ¶¶ 10-11.[3] The stated reason for the "waiver" was "Student Placed by Special Ed Dept." Id. ¶ 11. School records listed Z. Doe as "eligible but not enrolled" in ELL and indicated that Z. Doe did not receive ELL services during the 2013-2014, 2014-2015, and 2015-2016 school years. Id.
On April 12, 2016, Petitioners filed a Complaint (Agency Complaint) against the District "on behalf of their own children, [X. Doe, Y. Doe, and Z. Doe], and [on behalf] of a class of similarly situated children in the Providence School District." (R., Ex. 38 (Agency Compl.), at 1.)[4]Through the Agency Complaint, Petitioners alleged that the District was not providing ELL services consistent with state and federal law and sought to enforce the pertinent provisions of those laws and the State Regulations. Id. The Petitioners brought other claims in the Agency Complaint that later settled by way of a Consent Judgment and that are not pertinent to this appeal. See Record, Ex. 35 (August 2016 Consent Judgment).
On July 20, 2016, the parties entered into a Joint Stipulation of Facts and filed Cross-Motions for Summary Judgment. See Parties' Joint Stips. Fact; R., Ex. 34 (Providence School District Mot. Summ. J.); R., Ex. 33 (Pet'rs' Cross Mot. Summ. J.). Thereafter, on December 15, 2016, the parties entered into a Second Joint Stipulation of Facts and filed new Cross-Motions for Summary Judgment. See R., Ex. 32 (Second Joint Stips. Fact); R., Ex. 27 (Providence School District's Second/Cross Mot. Summ. J.); R., Ex. 30 at 15-30 (Pet'rs' Mem. Law. Supp. Second Mot. Summ. J.); R., Ex. 26 (Pet'rs' Reply Mem. Law Supp. Second Mot. Summ. J.). Through the
Second Joint Stipulation of Facts, the parties agreed upon a description of the Collaboration/Consultation Model as follows:
"1. The Providence School District's Collaboration/Consultation Model of service delivery to English Language Learners (ELLs) (hereinafter Collaboration/Consultation Model) is described in Providence Schools English Language Learner Handbook: A Resource for Providence Educators . . . under subtitle Collaborative ESL
"2. The Providence School District's Responsibilities of the ELL Collaborative Teacher . . . describes the expectations for an ELL certified teacher working within the Collaboration/Consultation Model.
"3. The Collaboration/Consultation Model requires that the ELL endorsed or certified teacher, known as the Collaborative Teacher, Provide direct instruction, 30-60 minutes daily, of English Language Development (ELD) to all WIDA[5] Literacy Proficiency levels 1.0-2.9[6] students who are in regular education.
"4. If an ELL student is in levels 2.9 and above, the Collaboration/Consultation Model does not require any direct instruction time to the student by the Collaborative Teacher . . . .
"5. The Collaboration/Consultation Model further requires that the Collaborative Teacher consult and collaborate with the non-ELL teachers (i.e. general and/or special education teachers) of ELLs . . . .
"6. Collaborative teachers are required to fill out a Consultation Log . . . every time they consult with the teacher of a student they are servicing. [C]onsultations must take place at a minimum of every 8 weeks. . . . No minimum time per student for the consultation is specified." (Second Joint Stips. Fact 1-2) (internal citations and quotation marks omitted; footnotes not present in original).
The District's "English Language Learner Handbook: A Resource for Providence Educators" (Handbook) states:
"Within the Collaborative ESL model is housed Consultation. Much like Collaboration, Consultation requires ongoing communication and collaboration amongst ELL and non-ELL certified colleagues. Consultation may be used as a stand-alone service for ELLs or in conjunction with Collaboration." Second Joint Stips. Fact Ex. 1 (Handbook) at 2.
The Handbook further explains:
"In the Consultative model, the ELL certified case manager meets with the general or special educator(s) working with the student to determine what the student's areas of strength and areas of needs are as it relates to academic language development. In addition, a schedule for ongoing consultation is proposed. This initial meeting is memorialized on an ELL Collaboration/Consultation Log and is submitted to the Director of ELL or his/her designee for approval. Once the plan is approved, consultation services begin as scheduled in the proposal. From there the ELL certified case manager meets, as agreed upon, with the general and/or regular educator(s) and provides written recommendations to his/her colleagues regarding the specific language development accommodations and modifications that should be provided in order to ensure that the student has meaningful access to the instruction. The ELL certified case manager will provide job-embedded coaching support, as needed, to the general or special educator(s) involved in order to ensure that they understand how and when the accommodations/modifications should be provided. Each consultation between the ELL certified case manager and the general and/or special educator is documented on an ELL Collaboration/Consultation Log. Once the log is completed and signed, a copy is placed in the student's record while the original is submitted to the Office of ELLs. During each consultation, the student's data (formative, diagnostic and/or summative) will be reviewed and changes to the modifications/accommodations will be made to best meet the language development needs of the students." Id.
Before resolution of the parties' Cross-Motions for Summary Judgment, the United States Department of Justice (DOJ) concluded its separate investigation of the District's ELL services program. See Pls.' Mem. Law, Ex. A (March 8, 2018 DOJ Letter). The DOJ found that the
District's Collaboration/Consultation Model "fail[ed] to provide EL[L] students any direct EL[L] services from an instructor qualified to provide those services and is devoid of any curriculum that is distinct from the regular education curriculum." Id. at 4-5. On August 9, 2018, the DOJ and the District entered into a settlement agreement regarding the DOJ's investigation. See R., Ex. 18, at Ex. A (DOJ Settlement).
On August 28, 2018, counsel for Petitioners brought the DOJ Settlement to the Hearing Officer's attention and stated that the DOJ Settlement resolved all disputed issues of federal law. (R., Ex. 18 (August 28, 2018 Kot Letter)). Specifically, counsel for Petitioners argued that the DOJ Settlement should be binding on issues of federal law, stating:
"State laws and regulations in the area of language access may go above and beyond minimums required by federal law, but may not fall short of such requirements. Thus any...
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