This is a formal complaint letter I have sent to my daughter's school district.
I have buried this in my blog because I am not ready to go full public with it but if you are reading this and you have advice, I would love to hear it! matthew.m.linden@gmail.com
(seriously, as if we don't have enough to contend with)
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My daughter, Annabelle, is a three year old paraplegic with learning delays attending Mrs. Zamora’s severe to moderate preschool class at Vista La Mesa Academy.
I am writing to you because I am concerned about classroom safety, access to educational materials and playground equipment at my daughter’s school. I believe that these three issues show a pattern of administrative disregard for the rights and well being of our educationally delayed students and students with physical disabilities.
Classroom Safety:
In recent weeks a new student has begun attending my daughter’s class. This new student clearly has significant emotional issues as he seems to be continually enraged; screaming, yelling, throwing himself against cabinets, launching himself chest-first onto tables etc. Every morning the staff has to physically restrain him to keep him from harming himself, the other students or running out of the classroom. I have watched this student, while holding his mother’s hand with one hand, shove an unsuspecting classmate in the back with his other hand. I believe this boy represents a significant danger to the safety of my daughter.
As a paraplegic, my daughter does not have the same bone density as other children. In the past, she has actually fractured her left femur under circumstances that would not normally result in a fracture for a typical child. Should this boy collide with Annie during one of his hyper-active and uncontrollable outbursts while she is in her wheelchair there is a good chance a bone fracture would result. Should he trample or fall over her while she is playing on the floor, a fracture would be almost guaranteed.
It is clear to any reasonable observer that this boy needs a one-to-one aid not only for his safety but the safety of the other students as well.
I expressed my concern for Annie’s safety to Mrs Zamora. Mrs Zamora expressed that she is also concerned for my daughter’s safety in the presence of this boy and that she has expressed that safety concern to both the Principle as well as the Director for Special Education without result. This despite a report by Dr. Lee Funk, director of special education for SI&A which was presented to the Governing Board on October 11, 2011 stating “there are 9 one-to-one aides, which is low for a district our size”.
For the time being, both Mrs Zamora and I have agreed that it is not safe for Annie to be out of her wheelchair, on the floor, while this boy is in attendance. It is wholly unacceptable to expect my daughter to be confined to her wheelchair without the opportunity to participate in floor activities with the other students because another student’s emotional needs which are not being met by the district are threatening her physical safety. This is a clear violation of Section 504 of the 1973 Rehabilitation Act which states in part:
“No otherwise qualified individual with a disability . . . shall solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
To be clear: Using the verbiage of Section 504, my daughter is “otherwise qualified” to engage in educational opportunities outside her wheelchair (ie; floor) but is being denied that opportunity by the district who refuses to provide a reasonably safe environment to do so.
Given that proper and reasonable concerns for student safety have already been related to the administration some time ago by Mrs Zamora, I would think that the district would want to move swiftly to address a clear liability concerning student safety as well as my daughter’s educational right to not be restricted to her wheelchair because another student’s consistent, predictable, uncontrollable and enraged behavior is not being appropriately addressed by our district.
Classroom Materials:
As Mr. Shaw stated at the District Governing Board Meeting on September 27, 2011, “many parents are interested in the Promethean Boards”. Parents of learning delayed students are no different. Upon seeing a Promethean Board in a neighboring preschool room, I questioned Mrs Zamora as to why my daughter’s classroom, which serves the most severely delayed preschoolers in the school district, does not have one. She replied that she had asked for one and been denied.
Mary Kraus, District Program Manager of Technology Services is quoted in a Lemon Grove Patch article on March, 18, 2011 entitled “Lemon Grove School District Says Promethean Boards Are Increasing Student Achievement” as saying, “The boards are dramatically transforming school performance through the use of technology”. In the same article, the district appointed teacher on special assignment, Sally Ahem, is quoted as saying, “The Promethean boards significantly increase the level of engagement . . . [students] stay on task.” As any professional educator will tell you, staying on task is one of the major hurdles for many learning-delayed students.
Again from the Lemon Grove Patch article: “Research commissioned by Promethean shows student achievement is higher (16 percentile points) when teachers use interactive instructional tools . . . the district concludes that the Promethean boards have had a positive impact on student engagement, academic achievement and teacher confidence at the school.” And yet this valuable instructional tool is being witheld from the most severely learning-delayed students in the district at the time when intervention does the most good (preschool).
I addressed this issue verbally with the Superintendent and Assistant Superintendent in mid November and was assured by the Superintendent that he would get back to me. As of today, he has not. Having not heard back from the Superintendent, I addressed this in a meeting with the Principal on November 29, 2011 in which she stated that she was not sure if a Promethean board could be installed in a modular classroom or that it would be of any educational benefit. This despite the other preschool classrooms having Promethean Boards.
I have spoken with both Promethean Technology (the maker of the Promethean Board) and Integrated Network Cable (a nationwide installer of Promethean Boards). They have assured me that a Promethean Board that has already been installed in one classroom can be moved to another classroom in (conservatively speaking) approximately 16 man hours or 2 persons working one day. As to installing a Promethean Board in a modular classroom, some modular classrooms can structurally handle the installation of a Promethean Board while others cannot. For those modular classrooms that cannot structurally handle an installation, free-standing displays are available. There appears to be no reason why a Promethean Board could not be made available to Mrs. Zamora’s class.
As I understand it, Mrs. Zamora’s class is the only preschool class at Vista La Mesa with it’s own bathroom. This is of vital importance when working with severely delayed 3 year-olds. As the district is aware, my daughter is regularly catheterized. Should Annie need to be catheterized at school, she would need access to a private bathroom with a changing surface such as the one in her present classroom. As this is not available in any of the other preschool classrooms it is not a simple matter of moving Mrs Zamora’s class into a room with a Promethean Board. The Promethean Board must come to my daughter’s class if she is going to have equal access to the same educational materials as the other preschoolers.
Playground:
There is absolutely nothing accessible to a preschooler in a wheelchair on the preschool playground at Vista La Mesa. The two playhouses which are on the paved portion of the playground are not wheelchair accessible. The sand and play tables are not wheelchair accessible. Due to the use of engineered wood chips, not a single element of the playground is wheelchair accessible. In short, my daughter spends recess time sitting and watching the other students play. This is wholly unacceptable.
When I expressed this concern to both the Superintendent and Assistant Superintendent, I was told that engineered wood chips are ADA and code-compliant. No reasonable person would make the assertion that a 3 year-old girl in a wheelchair can navigate a playground covered in wood chips. The idea is absurd.
Regarding the ADA compliance of engineered wood chips:
According to Kaboom.org, self-described as “a national non-profit dedicated to saving play for America's children”
“Engineered wood chips and shredded rubber are safe and ADA compliant under play structures, as long as you rake regularly to keep an even, deep distribution. People using wheelchairs will find them inaccessible unless they are raked at least weekly. These surfaces are less costly to install than poured-in-place but weekly maintenance can make them quite expensive over time. One school district estimated they spent an average of $6,000 per year per school maintaining playground wood chips.”
I spoke with a District maintainence crew worker who was working on the preschool playground at Vista La Mesa shortly after the Thanksgiving recess, he stated that he has never been instructed to maintain the wood chips on a weekly basis for ADA compliance. He had been instructed solely to “fluff up the drop zones”. This despite having a paraplegic preschooler on campus since the beginning of the school year.
Even given proper maintenance, adherence to codes does not necessarily grant access to students or release the district from liability. On May 9, 2007 the Contra Costa Times ran an article which read, in part:
By laying wood chips on playgrounds, the Mt. Diablo Unified School District is violating a lawsuit settlement to ensure that children who use wheelchairs can also use the play structures, a federal judge ruled.
Greg Roland, attorney for the district, said the chips are made from specially engineered wood fiber and satisfy requirements of the Americans with Disabilities Act..
"We have no idea how we violated the agreement," he said.
To solve the problem, the district changed about 35 structures around the district. Among the modification was the addition of platforms at the appropriate height so that children could slide off their wheelchairs and play with other children on the equipment, said Disability Rights Advocates attorney Alexius Markwalder.
Markwalder said that even after the modifications, kids using wheelchairs had a difficult time navigating over the wood chips on the ground to get to the play area.
"Kids with mobility disabilities are excluded from accessing the play equipment and playing with the other kids on the playground," she said.
And this from a San Francisco Chronicle Article from May 5, 2007 entitled “Wood Chips Ruled unfriendly to Disabled Kids” speaking of the same lawsuit:
"Our experts and people with disabilities tell us that wood chip surfaces are not accessible,'' said Larry Paradis, executive director of Disability Rights Advocates. "They constantly form mounds and gullies ... and they're impossible to maintain. Little kids in wheelchairs are already struggling to get around, they have less muscular strength, and it's important that play structures be easily accessible for them so they can be mainstreamed (with other children) as much as possible . . . wood chips don't meet disabled children's needs for a firm and stable surface, with little or no sloping, to wheel themselves to swings, slides and sandboxes. He said wood chip manufacturers have been boosting their sales and misleading customers by asserting that their product meets the standards of disability laws.
However, a playground designer said Friday that federal regulators have found that engineered wood fiber, the product used in schools and parks, complies with accessibility standards if properly compacted and maintained.
"Most places can't maintain it to that level, and they're probably better off with rubber,'' to reduce maintenance costs and the likelihood of lawsuits, said Susan Goltsman, whose Oakland firm, MIG, also designs schools and zoos. She said both products are safe, although wood chips are more yielding and may cushion falls better.
"We want districts to learn from Mount Diablo's mistake,'' he [Paradis] said.
We now find ourselves close to half way through the school year and still, my daughter sits in her chair and watches other children play. Our district has not adequately fulfilled its duties as they pertain to ADA accessible playgrounds. Our family had an IEP meeting last July. As such, the district was well aware in advance that a paraplegic preschooler would be attending Vista La Mesa Academy. We are now four months into the school year and still no tangible provision has been made to provide reasonable accommodations.
I must acknowledge that when I spoke to the Assistant Superintendent in mid November she stated that she was looking into purchasing an ADA-compliant swing and I appreciate that. However one has not materialized and any reasonable person would agree that one swing does not a playground make.
All of this despite the district’s fall 2011 expenditure of $56,114 dollars in playground equipment ($61,725 after change orders) for able-bodied students who already have access to playground equipment (see Governing Board Minutes of October 25, 2011). A field contract was also approved at the Governing Board Meeting of October 25, 2011 to spend $5775 to replace chain-link fence around the preschool playground at Vista La Mesa Academy with ornamental iron fence. This puts the district in the position of ornamenting a playground that is deficient in substance or the proverbial “putting lipstick on a pig”.
A look to the future of ADA compliance:
This is from a June 23, 2011 blog post authored by the American Clearinghouse on Educational Facilities (self described as, “The educational facilities clearinghouse funded by the United States Department of Education, provides the educational community with a reliable resource when planning facilities projects”) entitled “ADA Compliant Playgrounds”:
This past year, the Dept of Justice adopted revisions to the American With Disabilities Act (ADA) Standards for Accessible Design. One of the changes involves playgrounds that are used by children ages two and over, in a variety of public settings, which includes schools.
The playground equipment will now be required to be handicap accessible. Previously only the route to the playground was required to be accessible. The new regulation states that a certain percentage of ground level equipment and above ground equipment be accessible.
The change became effective on March 15th of this year, and compliance will be required for all new construction and renovations beginning March 15th 2012.
Consider taking an inventory and review your existing play areas and plans for new playgrounds. Set out a priority list of those areas that may need to be updated. Develop a budget and a plan of action to assure that all play areas are accessible. A playground designer or manufacturer of playground equipment can be useful resources in your planning. Also you can contact the U.S. Dept of Justice/ADA at 800-514-0301 or www.ada.gov orwww.access-board.gov for additional information.
Summary:
- The Rehabilitation Act (of which section 504 was originally a part) was passed in 1973
- The Education for All Handicapped Children Act (Now the Individuals with Disabilities Act or “IDEA”) was passed in 1975
- The Americans with Disability Act was passed in 1990
I find the fact that I, as a parent, have to point out what should be obviously plain for any professional educator to see in terms of classroom safety, equal access to classroom materials and reasonable accommodations to playground equipment very troubling. I should not have to bring issues such as these to the attention of professional administrators who are paid to make themselves aware of these issues.
I will remind the district that the above laws fall under the rubric of Civil Rights Law.
No one would suggest that, based on race, some children be exposed to potentially bone-breaking danger in the classroom simply because the district does not have the funds to adequately ensure their safety. No one would suggest that, based on color, some children be denied access to the same educational materials as their peers because the district does not have the funds to provide those materials in an classroom that meets their needs. No one would suggest that, based on creed, some children be made to sit in chairs and watch the other children play because the district does not have the funds for enough playground equipment for all.
According to Federal law, that is exactly what the district is doing to my daughter.
To be clear: I have approached Mrs Zamora (whom I have great appreciation for), I have approached the Principal, the Assistant Superintendent and the Superintendent to no avail.
When we return from winter break my 3 year-old daughter will return to the same unsafe classroom where she is not allowed to leave her chair for fear of her physical safety. My daughter will continue to be denied access to the latest educational tools, which by the district’s own admission would help her, because she and her classmates also need access to the amenities of the classroom they are currently in. Lastly my daughter will sit in her wheelchair on the pavement of an inaccessible playground and watch the other children play. On January 2nd, our district will violate my daughters federal civil rights both in and outside the classroom again - just as they have for the past four months.
These three issues show a clear pattern of our district’s negligent disregard for the needs and civil rights of our learning-delayed students and students with physical disablilities. This should be of great and immediate concern.
I expect the issue of classroom safety to be addressed by the district immediately. Regarding the grievous, long-standing and ongoing nature of the other two complaints involving classroom materials and playground accessibility, I expect to hear back from the district in writing promptly as opposed to the 2-month time period outlined in our district’s Uniform Complaint Procedures (UCP).
Regretfully,
Matthew Linden