Ask Mike and Stephanie Frank to describe their son Josh, and like most parents, they have a lot to say.
“He is a very energetic, very intelligent, 9-year-old little boy who is great at problem solving,” Mike Frank said.
He loves hugs, and Legos. With new people, he may seem shy at first, the Franks say, but he warms up to them.
In 2016, Josh was diagnosed with autism.
The Frank family — Mike, Stephanie, Josh, and little sister Sarah — live in Nampa, Idaho. But before Nampa, they lived in Hood River, Oregon.
It’s at Hood River County School District’s Westside Elementary where Josh’s parents say their son — a kindergartener with a disability — was denied the education and support he needed and was legally entitled to. An administrative law judge agreed with them. So did a federal court judge.
In a lawsuit against the district, the Franks argued that Hood River denied their son a “FAPE” — rhymes with “cape” and stands for Free Appropriate Public Education. It’s something every student in the country is entitled to, through the Individuals with Disabilities Education Act.
When the Franks won their court case — and the Hood River County School District lost — the judge ordered Hood River to provide training for school staff, as well as compensatory education to Josh.
Some of those things Josh didn’t consistently get in kindergarten — a full school day, dedicated one-on-one staff, and inclusion with his peers — are some of the same things students with disabilities may regularly miss out on in schools around the country, especially during the COVID-19 pandemic.
Earlier this month, special education advocates and the Oregon Department of Education reached an interim agreement in a class action lawsuit related to shortened school days for students with disabilities. An expert is set to review state records and data on where and why students do not attend a full day of school, and whether shortened school days violate IDEA.
In Josh’s case, a judge ruled that the Hood River County School District did violate the IDEA.
A good start at Head Start
Josh started school at Head Start in 2015. Things were great, his parents said. Their son was progressing, he was learning. Staff worked with Josh on transitions, something he struggles with.
“They were amazing, amazing there,” Stephanie Frank said.
“He did well with the students there, he did well with the teachers and the staff there,” added Mike Frank.
“I mean, he would have struggles, but they would work through them and work with him, and support him.”
Josh had an Individualized Family Service Plan prior to his Individualized Education Program. Both are ways for school officials and families to plan out education for students with disabilities.
Josh’s parents had “high hopes” on the first day of kindergarten at Westside, in 2018. But those quickly turned to worries.
On his first day, the school called Josh’s parents in the middle of the day for them to pick him up. They said Josh was having behavioral issues during a transition. The next day he went to school, Mike Frank received a call to pick Josh up again.
“We were hoping to be able to work through it, just you know, settling down and give them a little bit more feedback on what works to help calm him down and work with him,” Frank said.
“But we walked into the room where they were holding him and it was just utter chaos.”
In legal documents, Frank describes seeing his son “cornered like a wild animal.” Josh was on the ground, in a fetal position, surrounded by adults using mats to form a wall around him.
Josh was six at the time, and crawled into his father’s lap, Frank said.
“Just sobbing and so upset,” Frank said.
School and district staff said Josh’s behavior was unsafe for them and for other students.
After those first couple of days, Josh’s parents spent months going back and forth with educators at the Hood River County School District, trying to figure out a plan for Josh.
Josh’s school day would be shortened, then slowly increased by an hour or two. One day, the bus did not show up to take Josh to school. Josh would spend extended periods of time in a room with an instructional assistant, one-on-one, without spending time with his peers. Even though Josh was progressing and learning new skills, his IEP would not be updated to reflect that.
The difficulties led Mike and Stephanie Frank to hire Diane Wiscarson, a Portland attorney who specializes in special education law. They pulled Josh out of Westside and filed a complaint with the Oregon Department of Education, saying the district, denied their son a FAPE, in violation of state and federal law.
During the hearing, according to the 163-page final order, the district spent a “significant amount of time” talking about Josh’s behavior, saying it presented a safety risk. Josh’s parents said the district’s response to Josh’s behavior only increased his “emotional dysregulation…and created an aversion to the school environment.”
In his order, Oregon Administrative Law Judge Joe L. Allen sided with the parents, saying the district didn’t provide the support Josh needed.
“A preponderance of evidence indicates that Student was capable of being educated within the general education classroom during the 2018-2019 school year if provided with proper supports and services,” according to the order.
The judge ordered Hood River to pay for 900 hours of compensatory education — the equivalent of a whole school year. Because the Frank family is no longer in Hood River, that money would likely pay for extra tutoring to help Josh catch up. The judge also mandated special education training for district staff at Head Start and Westside.
Even for Wiscarson, the order was extraordinary.
“I’ve never seen an order as large as 900 hours, ever,” Wiscarson said. But she was also excited for Josh to get what he needed, like time in a classroom with other kids.
“This is when you learn how to be a student, right?” Wiscarson said.
“…You learn about how all these social nicety things that you can’t really just instruct kids, but you learn by participating in, he was deprived of all of that, in addition to the academics and everything else.”
From “worst child” to good character award
Josh is in second grade now, at Birch Elementary in Nampa, Idaho. Last spring, he received a Good Character award. Mike and Stephanie went to his school to see Josh get recognized.
“We sat in the outer office while the principal made the announcement and to hear our son’s name announced to all the school in recognition of the progress that he had made, and how good of a citizen of the school he was, was incredible,” Mike Frank said.
“That was a fantastic day, that was a fantastic moment.”
Wiscarson said it’s a stark contrast to what she heard during the due process hearing against the Franks’ former district in Oregon.
“In the testimony given at the hearing was, ‘he’s the worst child they’d ever seen’,” Wiscarson said.
In Hood River, Frank said she would try and teach her son herself.
“We had a spare room, and we’d go up…it was our classroom. We would do different activities, whether it was writing letters, or working on numbers or colors, and I would work with him,” Frank said.
“…When he’s being sent home for not having the right behavior, then, if he’s not getting an education at school, it doesn’t mean he still shouldn’t be educated.”
Today, Josh receives support from school, plus a tutor comes to the house to help him with certain skills and fill in the gaps in his education.
His parents say Josh spends most of his time in a general education setting, with his peers.
At the same time, Josh’s parents said their son has not caught up to his peers academically. They’ve held him back a year to help him catch up.
“When it comes to writing, reading, he is still at a first grade level,” Stephanie Frank said.
“While we tried in that two years to continue and help him, educate him as best we could, we’re not educators…,” said Mike Frank. “There’s so much more to providing an education to a child than what parents can do when they’re not armed with that knowledge.”
For Wiscarson, she’s happy Josh is succeeding despite all the family has been through.
“The saddest part to me is that this family had to move to another state to get their child served,” Wiscarson said. “That’s, that’s wrong, and today it still continues.”
District still fighting
It’s been three years since that first day of kindergarten, but the case still continues on appeal.
The final order from Judge Allen was signed July 2, 2020. An order from U.S. District Court Judge Michael Simon came down a year later, almost to the day, on July 1, 2021. Simon’s order affirmed the previous decision with one exception — the district was no longer required to conduct an evaluation of Josh’s behavior.
Less than a month later, the Hood River County School District filed a notice to appeal the ruling again. This time to the U.S. Court of Appeals for the Ninth Circuit, which covers the entire West Coast and inland through Arizona and Montana.
School district leaders said, through the district’s attorney, it was unable to comment on pending litigation.
The district has not confirmed that it has completed the training ordered by Allen. Wiscarson’s office said they’d received confirmation that the district will not do the training because of the appeal.
As far as what this means for future cases, Wiscarson said it’s hard to tell. Cases like this are based on specific facts, she said, though she said some rulings the judge made may help future families or special education attorneys.
“For example, because Josh missed general education time, the judge ordered him to have general education time,” Wiscarson said. “That usually doesn’t happen, so that’ll have a little bit of precedential value.”
But more broadly, both the Franks and Wiscarson say their court victory can serve as encouragement to families.
“I think it is important that parents know that they have rights, and that the school has a certain obligation to their child,” Frank said.
And a potential warning to school districts.
“I think it does put districts on notice that there are parents who will take them to hearing if their kids don’t get their FAPE, their Free Appropriate Public Education,” Wiscarson said.
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