AJC Watchdog: First Alert

Keeping watch on those who hold the public trust and money

States' rights? Georgia seeks to dismiss federal suit over schools for disabled students


Georgia is refreshing an old battle cry to defend its psychoeducational school system for disabled students: states’ rights.

In a motion filed Tuesday, lawyers for the state sought to dismiss a federal lawsuit alleging that placing disabled children in segregated psychoeducational schools violates the Americans with Disabilities Act, or ADA.

Georgia’s lawyers argued that the U.S. Department of Justice has neither jurisdiction to enforce the ADA nor the authority to sue the state under the act’s provisions.

“This is no ordinary lawsuit,” the state’s lawyers wrote, “and it seeks relief that no court ever has issued.”

At issue is the Georgia Network for Educational and Therapeutic Support, created more than 40 years ago to serve students with behavioral and emotional disabilities. The state says the GNETS network – the only one of its kind in the nation – is necessary because some disabled students cannot succeed in a regular school, even in special-education classes.

The Justice Department's civil rights division sued the state in August after a lengthy investigation and intensive negotiations with state officials.

The suit said the state unnecessarily segregates disabled children as young as 4 in schools that do not provide adequate instruction or mental health treatment. Many students, the suit alleged, attend classes in decrepit buildings that housed black students in the Jim Crow era.

The state is “depriving students in GNETS of the opportunity to benefit from the stimulation and range of interactions that occur in general education schools, including opportunities to learn with, observe, and be influenced by their non-disabled peers,” the suit says. With “appropriate mental health and therapeutic educational services and supports,” most disabled students would flourish in traditional schools.

Georgia schools assign 4,000 to 5,000 children to GNETS each year. About 125 are in kindergarten and pre-kindergarten.

The Atlanta Journal-Constitution reported earlier this year that Georgia schools assign a disproportionate number of black students to GNETS. The newspaper also found that some GNETS programs conducted psychological experiments on disabled students and that physical restraints are used far more often on GNETS students than on other children in all public schools statewide.

The state’s response said the Justice Department’s allegations are “woefully dated.” In July, shortly before the current school year began, state officials ordered several GNETS programs to move students out of older, run-down schools. Student welfare, the state said, is the “highest priority.” Schools assign students to GNETS “only where the nature or severity of the disability is such that education in general education classes … cannot be satisfactorily achieved.”

Much of Georgia’s argument echoes pleadings during the 1960s, when states claimed the Justice Department and other federal agencies had no authority to enforce civil-rights laws within their borders.

The state said the federal government lacks standing to file an ADA suit, because the act reserves that right for “persons” – that is, individuals who are denied accommodations for their disabilities.

The state cited a recent decision in a federal lawsuit that claimed Florida’s administration of its Medicaid program violated the ADA. When the Justice Department tried to intervene, a federal judge in South Florida ruled the department could not litigate claims under the ADA. Otherwise, the judge said, federal intervention would result in “significant federalism costs, subjecting state-run public services to federal judicial review.”

The Justice Department has said it will appeal the judge’s ruling.

Regardless, Georgia’s lawyers said, the department has tried to claim authority not granted in the ADA.

“It was not enacted to allow DOJ to commandeer state coffers to provide an unquantifiable level of services or eradicate educational options for students who can avoid residential treatment but do not thrive in the general education environment,” the state’s motion said.

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