On October 9, 2020, The Sullivan Law Firm filed a formal systemic complaint against the Savannah-Chatham County Public School System (SCCPSS).
On October 14, 2020, the Georgia Department of Education (GaDOE) notified SCCPSS that the complaint was found to be sufficient to investigate the following:
1. Placement (34 C.F.R. § 300.116);
2. Prior notice by public agency; content of notice (34 C.F.R. § 300.116); and,
3. Provision of Free Appropriate Public Education (FAPE) (34 C.F.R. §§ 300.101 and 300.17).
On February 12, 2021, the Georgia Department of Education (GaDOE) issued a Formal Resolution Letter and found SCCPSS to be out of compliance with federal law and state regulations in all areas investigated.
As news of this decision spreads throughout Savannah (and beyond), there are questions the community may have about what this all means. This is our effort to respond to the most common questions and concerns we have seen so far.
Is This a Lawsuit?
No, it is a systemic formal complaint.
What is a Systemic Formal Complaint?
The Individuals with Disabilities Education Act (IDEA), is the law that outlines the who, what, where, when, and how of special education and Individual Education Plans (IEPs). The IDEA has 2 main ways for parents to ask someone outside the school district to address a concern or resolve a dispute related to the appropriateness of an IEP. One way is a formal complaint (also called a state complaint). The second way is called a due process complaint.
Filing a formal complaint is what is called an administrative process. It operates outside of a court system. A formal complaint can be filed by any concerned individual (usually a parent) to the GaDOE about something covered under the IDEA. Once the GaDOE receives the formal complaint, they decide if the complaint should be investigated. Anyone is able to bring a formal state complaint without support of a lawyer.
The formal complaint is designed to address concerns and resolve conflict quickly. Therefore, it is well suited for some, but not all types of concerns relating to a student’s IEP. Whether a specific concern or dispute is best handled using a formal complaint or due process complaint must be determined on a case-by-case basis. Every student’s circumstances are unique.
Typically, the state complaint process has to be completed within 60 days from the date the GaDOE accepts the complaint for investigation. In some cases, the parties might agree to go to mediation to resolve the complaint through a negotiated settlement before the GaDOE issues its decision.
The complaint filed by The Sullivan Law Firm followed the same process with two slight differences. First, because it was a systemic complaint, specific individual concerns were not mediated. Second, given the district-wide nature of the complaint, the GaDOE needed more than the 60 days to complete the investigation as there was a lot of information to consider.
Does The Sullivan Law Firm represent my child?
The Sullivan Law Firm does not and has not asserted that it represents all students with disabilities within the district. We only represent students whose families engage directly with the firm. We did ask the GaDOE to look at our concerns on a district-wide level because they had the potential to implicate every IDEA-eligible student enrolled in the district.
If The Sullivan Law Firm does not represent my student, how can the firm bring a complaint that may affect my student’s IEP?
The Sullivan Law Firm submitted a systemic formal complaint using the procedural protections found in federal law. Section 300.153 of the IDEA’s implementing regulations permit any individual or organization to pursue a systemic complaint.
Did the firm receive money for bringing this complaint?
No one paid The Sullivan Law Firm to make this complaint to the GaDOE; nor has The Sullivan Law Firm asked that anyone pay it for bringing this complaint.
Could the firm get paid for bringing this kind of complaint?
Attorneys who represent IDEA-eligible students using either a state complaint or due process are usually paid in 1 of 2 ways: by the parents or by the school district. For this type of complaint, the firm gets paid when directly hired to prepare and file the complaint. That was not the case here.
While the IDEA does allow for an attorney to petition for and receive fees after a successful due process complaint, this was not a due process complaint. The 9th Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington) has said that attorneys fees can be paid for state complaints. Georgia (along with Florida and Alabama) is in the 11th Circuit, where there is no such rule.
In other words, SCCPSS will not and does not have to pay us because we got a favorable decision from the GaDOE.
Why did The Sullivan Law Firm make this complaint to the GaDOE?
We watched the roll out for virtual/online learning for the 2020-2021 school year and developed concerns over whether appropriate plans were being made for IDEA-eligible students. As the weeks and months went on, while some students were doing well in the virtual/online learning environment, others were not.
Through phone calls to the firm and social media contacts, families were expressing their concerns over how services were (or were not) happening. Therapy services like speech and occupational therapy that often require direct support were not occurring (other than virtually). Some students struggled to participate in an online/virtual classroom. The questions and concerns raised were as individualized as each student, but each boiled down to one key issue: can my student’s IEP be followed in the online/virtual classroom setting and, if not, why can’t my student receive the same services that they would be receiving in the actual school building despite the virtual setting?
Feeling that many of these types of questions were not being answered by SCCPSS, The Sullivan Law Firm decided to address these concerns directly to the GaDOE in a legally recognized format designed for this purpose.
Is this complaint part of an effort to force SCCPSS to return to full time, in-person instruction?
The Sullivan Law Firm has never demanded nor suggested that all students must return to in-person learning as a consequence of its advocacy efforts. Whether or not a student should receive in-person learning, supports or services is an individualized determination. In the decision issued on February 12, 2021, the GaDOE states:
“… the IEP team must be able to discuss and consider a student’s educational placement, which includes discussion and consideration of the location of those services and any potential harmful effect on the student or on the quality of services that the student needs, in accordance with the IDEA. While health and safety restrictions may prevent a district from sending their own staff into a student’s home to provide in-person services, the IEP Team must be able to discuss and consider whether in-person services are required for the student to receive a free appropriate public education (FAPE) and if so, how those services will be provided now (e.g., use of private contractors or outside agencies) or how those services will be provided in the future (e.g., provision of compensatory services).” Formal Complaint Resolution. (Findings and Resolution ), p. 5.
This statement by the GaDOE mirrors The Sullivan Law Firm’s longstanding position on this issue. We recognize that we are all living through a global pandemic. Things are not normal and while many of us are craving normalcy, we may never return to what life looked like pre-pandemic.
How does this complaint fit into disability rights advocacy generally?
Historically, the rights of people with disabilities in our country have been hard fought. The reality is that many of these issues existed pre-pandemic. For example, why not install ramps instead of stairs? It's a simple solution that creates access for everyone.
The issues inherent to the education context have simply become more obvious to others outside the disabled community, but for many families raising disabled children these issues have been present all along. Lack of planning and preparing for students with disabilities occurs at every level. These problems are rooted in ableist sentiments and attitudes that we must challenge.
Parents and advocates are asked all the time to accept what is available. Even at the best of times, when more is requested, parents are met with shoulder shrugs, blank stares, lowered eyes, and mumbled commentary about how “we can’t do that here.” These are not the best of times, and these shoulder shrugs, blank stares, and “we can’t do that” are at a fever pitch. The now overused adage of “unprecedented times” can fall flat for families raising students with disabilities. Many families are used to being left out of the discussion.
This is about more than following the law. The exclusion directly impacts how these children grow up, and how they internalize their worth. This is about where our values lay. For The Sullivan Law Firm, our values dictate that we presume competence, put the student at the center of decision making, and work outwards from there. We expect our school system and our community to do the same and, through our advocacy, work towards that goal each day.
The information provided here is not legal advice and is for informational and/or educational purposes only.