Credit: Sandra Hernandez / ACLU Southern California

Reyna Frias, a mother of two Los Angeles Unified students and plaintiff in the lawsuit over spending for English learners and low-income families, speaks during a press conference Wednesday announcing the litigation.

The first lawsuit involving the state’s new education funding formula is a big one, with potential statewide implications. In a lawsuit filed Wednesday, civil rights attorneys charged the Los Angeles Unified School District with shortchanging English learners, low-income children and foster youth by hundreds of millions of dollars. The district disputes the claim.

Public Advocates Inc. and the American Civil Liberties Union argue that the state’s largest district is counting past spending that the federal government required for special education services to fulfill new spending requirements under the Local Control Funding Formula for English learners, low-income children and foster youth. L.A. Unified receives 33 percent more in funding for these children, which the funding law designates as “high-needs” students. The lawsuit says this money must be used to increase and improve services and programs beyond the special education funding that students are entitled to.

The lawsuit seeks to stop the Los Angeles County Office of Education from approving the district’s Local Control and Accountability Plan, which lays out goals and spending plans for high-needs students, and to order the district to redo its calculations for determining programs and services for them. The county office has not yet reviewed the proposed LCAP for the new fiscal year. Halting the LCAP would have the effect of suspending the district’s $8 billion budget, which the L.A. Unified school board passed last week. It took effect July 1 and must be approved by the county office by Aug. 15.

The lawsuit, filed in Los Angeles County Superior Court, names L.A. Unified Superintendent Ramon Cortines and Los Angeles County Superintendent of Schools Arturo Delgado, whose office reviewed and approved last year’s LCAP and budget as the district proposed. Public Advocates, the ACLU and attorneys from the law firm Covington & Burling filed the lawsuit on behalf of Community Coalition, a foundation-backed organization in south Los Angeles, and Reyna Frias, a mother of two L.A. Unified students, including an English learner who receives special education services.

In a statement Wednesday, the district said that the plaintiffs misunderstood the funding law. The Legislature, it said,  “clearly granted school districts the highest degree of flexibility in determining student program needs.” Predicting it would win the case, the statement added, “we stand by our continuing commitment to serve our most disadvantaged students.”

The county office declined to comment on the lawsuit.

Failure to ‘increase and improve’ services

The issues involved are technical but critical in determining the extent of efforts under the law to “increase and improve” services for high-needs students. The conflict dates to 2013-14, the first year under the formula, when districts were asked to calculate how much they should be credited for previous spending for high-needs students.

L.A. Unified said that it spent $653 million in general funding for special education programs that state and federal funding failed to cover. Because 79 percent of special education students are English learners, low-income students and foster youth, the district said it should be credited with spending $450 million for them. That, in turn, reduced the new money that the district would have to spend on these students through supplemental and concentration dollars.

Based on annual calculations tied to increases in funding, Public Advocates and the ACLU say that between last year and the proposed 2015-16 district budget, L.A. Unified will underspend a combined $414 million on high-needs students. That amount would increase annually as the state adds money while transitioning to full funding under the formula in 2020-21. At that point and every year subsequently, L.A. Unified should be spending $450 million more annually than the district claims is required, the lawsuit says.

“It is so obviously inappropriate that other districts have not had the temerity to try. Los Angeles is so big they think they can do anything,” said John Affeldt, managing partner for Public Advocates.

If ordered to do so, L.A. Unified would have difficulty reallocating money in the budget. This spring, the district and United Teachers Los Angeles negotiated a $1 billion health care package and a 10 percent raise, phased in over two years, that will add $250 million in payroll costs.

John Deasy’s defense

The lawsuit was expected. Public Advocates and the ACLU first brought the issue to the district’s attention in a letter a year ago, and the county office of education in turn asked the district for an explanation as well. In an August 2014 response to the county, then-Superintendent John Deasy defended how the district apportioned its spending for low-income students, English learners and foster children. He said it met the county office’s “reasonableness standard” and the Legislature’s intent, under the formula, of giving districts spending flexibility. The county office approved L.A. Unified’s LCAP in September 2014 and has until Oct. 8 to sign off on the LCAP for 2015-16.

Public Advocates managing attorney John Affeldt, center, David Sapp, director of education advocacy at the ACLU of Southern California, and Isabel Alegria, director of communication of Public Advocates, discuss the lawsuit at a press conference on Wednesday.

Credit: Guillermo Mayer / Public Advocates

Public Advocates managing attorney John Affeldt, center, David Sapp, director of education advocacy at the ACLU of Southern California, and Isabel Alegria, director of communication of Public Advocates, discuss the lawsuit at a press conference on Wednesday.

John Affeldt, managing partner for Public Advocates, said that a handful of the state’s 1,000 districts appear to be inappropriately counting special education services for high-needs students as meeting their obligations under the funding formula. However, he said the method and magnitude used by L.A. Unified are “particularly egregious.”

“It is so obviously inappropriate that other districts have not had the temerity to try,” he said. “Los Angeles is so big they think they can do anything.” He said that only L.A. Unified inflated what it spent for high-needs students in the base year by mixing in special education spending – a tactic with a ripple effect as the deficit is carried over in subsequent years.

The lawsuit says that L.A. Unified misread the funding law and the regulations guiding districts that the State Board of Education adopted last year. The law distinguishes between funding dedicated for high-needs students and funding for all students. Special education services are provided to all students who qualify for them, regardless of whether they come from low-income families and are learning English, and so these services shouldn’t be counted toward meeting the funding law’s requirements, the lawsuit says. In addition, the state board did not fold the state funding earmarked for special education into the funding formula; in deliberately separating it, the lawsuit says, the Legislature confirmed that money for special education services shouldn’t be counted as funds to increase or improve services for high-needs students.

The federal government picks up only about 20 percent of the costs of special education in California. The remainder is split between a state-funded “categorical” program and districts, through their general funds. Special education funding has become a point of contention in some districts, as it “encroaches” on base funding under the new finance system.

Deasy, in his letter last year justifying the district’s allocation of money, said that L.A. Unified has spent money to integrate special education students into general classes, to improve language skills of special education students who are English learners and to narrow the achievement gap of underperforming subgroups of special education students. And he added that “nowhere in the regulations” governing the funding formula is the district “precluded from including unrestricted General Fund expenditures” (the money spent on special education) as part of the base year’s calculation. The county office accepted that explanation when it issued a Sept. 5, 2014 letter approving the LCAP.

But Affeldt said that if L.A. Unified’s calculation is permitted, other districts may be tempted to take the same approach. In the extreme, the Local Control Funding Formula would be used to fund special education costs. That is not what the Legislature and state board intended, he said.

Brooks Allen, deputy policy director and assistant legal counselor for the state board, said the state board has not been asked to weigh in on the issue of applying special education spending to fulfill obligations to high-needs students. He declined to comment on the Los Angeles litigation or on unique “fact-specific questions” about a district’s compliance with the funding law. However, he said, if there were widespread occurrences that were inconsistent with the regulations, then the state board would consider issuing guidance.


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  1. navigio 1 year ago1 year ago

    An interesting irony here. In the first year of lcff districts got to choose how much they directed toward unduplicated students. The only stipulation was it could not be less than the prior year's EIA expenditures. Since subsequent years use that amount as a starting point, the decision could have significant impact on how quickly s&c amounts 'ramped up' in the first few years. From memory, lausd chose something like 5 times the minimum, which … Read More

    An interesting irony here. In the first year of lcff districts got to choose how much they directed toward unduplicated students. The only stipulation was it could not be less than the prior year’s EIA expenditures. Since subsequent years use that amount as a starting point, the decision could have significant impact on how quickly s&c amounts ‘ramped up’ in the first few years.
    From memory, lausd chose something like 5 times the minimum, which surprised me at first, until I noticed most (all?) of that ‘excess’ was directed toward special education. In other words, the real allocation was not much different than another district using close to the EIA-based minimum and continuing to divert base grants to special education instead. The only difference perhaps being the creation of the appearance of a large s&c commitment. Nice politics of no one looks too closely.
    It now appears lausd is asking to put prior years base allocation to special education into the s&c column. And because the subsequent years are gap funded, ie provide a percentage of the remaining amount, this has the effect of reducing the remaining amount, and thus what the district would have to account for for unduplicated students. Although I disagree that the difference is the same every year as claimed by the lawsuit (the difference between a large and small initial allocation goes away as you approach full funding), it is a neat little accounting trick.
    In reality, the CoE is as responsible for this as anyone for having approved the previous lcap, through which they effectively stated that special education funds count as ‘additional’ for those students.
    I’ve always felt that part of lcff’s goal was to free up funding for special education but even I was surprised that lausd made that explicit. Now that they got the green light they are going whole hog. At minimum it will force a discussion that should have been had last year.

    Replies

    • Don 1 year ago1 year ago

      In effect, isn't LAUSD claiming in its LCAP that it's upgrading the entire education program of the district per Code section 42238.07(a)(2) when it states in the LCAP as follows: " Targeted Special Education Supports Ensuring the Success of Students with Disabilities: Percentage of General Fund Support for Special Education services serving all students, inclusive of unduplicated students" ...given that SPED is a program that is available to all qualifying students? I find LCFF's requirements somewhat of … Read More

      In effect, isn’t LAUSD claiming in its LCAP that it’s upgrading the entire education program of the district per Code section 42238.07(a)(2) when it states in the LCAP as follows: ” Targeted Special Education Supports
      Ensuring the Success of Students with Disabilities: Percentage
      of General Fund Support for Special Education services
      serving all students, inclusive of unduplicated students” …given that SPED is a program that is available to all qualifying students?

      I find LCFF’s requirements somewhat of an exemplar for the fungibility of money. How is a judge supposed to determine the intent of the LCFF law when it bills itself as a formula? Ironically, as with Common Core math, the LCAP requires an explanation of how the expenditures meet the intent to be considered a right answer. If LAUSD can run an aircraft carrier through the loopholes and get the right answer who’s to say that the loose framework of financial accounting was not intentional. It seems to be absolutely intentionally expressly written to provide maximum flexibility for LEAs.

      • Don 1 year ago1 year ago

        I should have included in my comment that such an districtwide upgrade could qualify as effort towards SC student expenditure per the quoted numbered code above.

  2. Don 1 year ago1 year ago

    Gary said, "I seriously doubt with a tax averse GOP Congress that the Federal underfunding of programs the federal government mandates districts deliver will be resolved soon." I seriously doubt anyone could take your doubt seriously. It is more than a little disingenuous to blast the Republicans for not increasing funding for the SPED mandate when Obama and a Democrat Congress recently spent 6 years dramatically increasing government funding (and the national debt along with it) … Read More

    Gary said, “I seriously doubt with a tax averse GOP Congress that the Federal underfunding of programs the federal government mandates districts deliver will be resolved soon.”

    I seriously doubt anyone could take your doubt seriously. It is more than a little disingenuous to blast the Republicans for not increasing funding for the SPED mandate when Obama and a Democrat Congress recently spent 6 years dramatically increasing government funding (and the national debt along with it) for a wide variety of programs without giving special ed so much as a dime more. Please.

  3. Paul Muench 1 year ago1 year ago

    I’m curious if LA Unified is confessing that it has not been identifying special education students appropriately. Hence they think they deserve credit for that spending for other purposes. Any chance this is a factor in what LA Unified is doing?

    Replies

    • John Fensterwald 1 year ago1 year ago

      Paul: Perhaps you are referring to a couple of articles this month, including this one, that challenges previous reports that minority children, especially African-Americans, are disproportionately diagnosed for special education. I have not seen this issue raised by L.A. Unified as a rationale, although the district does note that the percentage of low-income, English learners and foster youth in special ed -- 79 percent -- is less than the 84 percent that they make … Read More

      Paul: Perhaps you are referring to a couple of articles this month, including this one, that challenges previous reports that minority children, especially African-Americans, are disproportionately diagnosed for special education. I have not seen this issue raised by L.A. Unified as a rationale, although the district does note that the percentage of low-income, English learners and foster youth in special ed — 79 percent — is less than the 84 percent that they make up in the district’s enrollment. A recent article in the L.A. Daily News notes that African-American kids in the district are over-represented in special ed –12.3 percent vs 9.1 percent of students in the district overall, and whites are over-represented as well.

      Don: John Affeldt notes that only one district, albeit a big one, has used special education costs as the vehicle to reduce its required supplemental and concentration spending. That, to me, would not indicate the failure of the new spending law. However, I agree that it should not take litigation to resolve the question. The county superintendents, through their manual on applying the LCAP regulations, and the State Board of Education, through guidance, should provide clarity. So could the state superintendent, who was quick to provide advice on when it’s appropriate to use supplemental and concentration dollars for staff raises.

      • Don 1 year ago1 year ago

        John: Let's draw an analogy. Let's say the U.S. strikes a nuclear deal with Iran only to find out in the very first year that Iran has been overtly violating the treaty at its largest reactor comprising 1/6th of its nuclear program, even while ostensibly complying elsewhere. Is that a sign of success? The point isn't whether it was 1 district or 100. The point is that a very large number of California … Read More

        John: Let’s draw an analogy. Let’s say the U.S. strikes a nuclear deal with Iran only to find out in the very first year that Iran has been overtly violating the treaty at its largest reactor comprising 1/6th of its nuclear program, even while ostensibly complying elsewhere. Is that a sign of success? The point isn’t whether it was 1 district or 100. The point is that a very large number of California public school students were adversely impacted by the lack of vigilant oversight and that the county and state were willing bystanders allowing a egregious breach of the law to take place right out of the gate.

      • Gary Ravani 1 year ago1 year ago

        John: I am going to disagree with you here. I think I predicted early on that LCFF, and the consequent LCAPs, was going to contain enough ambiguities that it would take a court to finally begin the resolve the questions. Filing a lawsuit at this time, after just the first year, may or may be jumping the gun. (I tend to think it likely is.) In this case, LCFF/LCAP, and how they interact with Special Education funding make … Read More

        John:

        I am going to disagree with you here. I think I predicted early on that LCFF, and the consequent LCAPs, was going to contain enough ambiguities that it would take a court to finally begin the resolve the questions.

        Filing a lawsuit at this time, after just the first year, may or may be jumping the gun. (I tend to think it likely is.)

        In this case, LCFF/LCAP, and how they interact with Special Education funding make for an interesting series of questions. Why does CA only receive 20% of SP Ed funding from the Feds when, by federal law, it should be a minimum of 40%? This is a topic that is dealt with at every bargaining table in every district in CA and has the CFOs of districts pulling their hair out annually.

        As mentioned in the article SP ED funding represents some of the most personnel intensive, and therefore dollar intensive, “mandated” (again some ambiguity holds here) programs every school district has to deal with. And, no district I am aware of, does not try and deal with SP ED in the most humane way possible. This does not mean there are not some differences in program delivery based on districts. Some districts have “Cadillac” style programs and some more “Chevy Citation.” But all deal with the “unfunded mandate” aspects and the resulting budget encroachments.

        I seriously doubt with a tax averse GOP Congress that the Federal underfunding of programs the federal government mandates districts deliver will be resolved soon.

        It should be an interesting case nevertheless. What are the parameters of “flexibility” under LCFF as the Legislature and Governor conceived them? LAUSD is not helped, I would think by having a good part of its legal rationale based on the former superintendent’s assertions. He who left under the cloud of serial screw-ups like “I-Pads for All” and a lack of appropriate staffing at several high schools?

        All of this remains under the operational umbrella of CA’s schools being significantly underfunded, under staffed, and under compensated for years in the case of the later and for decades in the case of the (two) former.

        • John Fensterwald 1 year ago1 year ago

          Gary: You are right that the federal government has not come close to paying most of the costs of the special education mandate that it passed in the 1970s. For a few years. I believe the federal government met 40 percent of the cost, but it's now about 20 percent. So districts have struggled, even with a sizable state categorical grant, to cover special ed costs using the general fund, now known as base funding … Read More

          Gary: You are right that the federal government has not come close to paying most of the costs of the special education mandate that it passed in the 1970s. For a few years. I believe the federal government met 40 percent of the cost, but it’s now about 20 percent. So districts have struggled, even with a sizable state categorical grant, to cover special ed costs using the general fund, now known as base funding under LCFF.That’s tough, given the many competing demands districts face. What makes Los Angeles Unified unique was the aggressive method to minimize obligations under the formula for English learners and low-income kids. Perhaps it will take a judge to sort through the issue, but L.A.’s approach is so different that one would have reasonably expected lawyers for the county office or the State Board — had it been asked — to give some guidance.

          • Gary Ravani 1 year ago1 year ago

            John: I cannot disagree with most of what you say. However, I have been around since the 1970s and I have no recollection of the Feds even reaching the "full" 20% let alone 40%, though it may have varied somewhat on a per district basis. I do not have access to data that goes that far back. Tossed the files when I retired. My observations of the SBE (and I know you were there too) suggest to … Read More

            John:

            I cannot disagree with most of what you say. However, I have been around since the 1970s and I have no recollection of the Feds even reaching the “full” 20% let alone 40%, though it may have varied somewhat on a per district basis. I do not have access to data that goes that far back. Tossed the files when I retired.

            My observations of the SBE (and I know you were there too) suggest to me they wanted to allow LCFF and its flexibility elements play out for a while, and I think Kirst made that point, before moving to regulate or even define it further. If LAUSD, as PA and the ACLU assert, are abusing the concept (and with the former superintendent involved any abuse is possible) they do need to be called on it.

            On the other hand the SBE may well have been stunned by Brown’s continued use of “subsidiarity.” I know I was at first.

            • John Fensterwald 1 year ago1 year ago

              Gary: One of the first stories I wrote as a new reporter on a weekly in the ’70s was about the passage of Public Law 94-142, which was a huge civil rights victory for kids with disabilities. I stand corrected: The federal funding goal was 40 percent of the average costs of special education, and there may have been full funding for it in the first two years, but nothing close to it since.

            • Don 1 year ago1 year ago

              John : - "Flexibility" as in the flexibility of ethics under the State of California's accountability regime, such as it is. We are talking about tens of billions of taxpayer dollars for the education of 6 plus millions students - not whether the MLB wants to see whether the designated hitter will increase ticket sales and viewership. Is it wrong to expect responsible stewardship of California public education and to expect and … Read More

              John : – “Flexibility” as in the flexibility of ethics under the State of California’s accountability regime, such as it is.

              We are talking about tens of billions of taxpayer dollars for the education of 6 plus millions students – not whether the MLB wants to see whether the designated hitter will increase ticket sales and viewership. Is it wrong to expect responsible stewardship of California public education and to expect and to demand that districts don’t divert hundreds of millions of dollars contrary to the letter and spirit of the law simple for the purpose of “seeing how it plays out”? LIKE ITS SOME BET OVER A ROUND OF GOLF?

          • Gary Ravani 1 year ago1 year ago

            Well I did not write any such stories. I was “connected” with issues at the bargaining table though. I think I would recall a significant cut in federal funding particularly in the range of 50%. On the other hand the funding comes (came) “filtered” through the state, along with further mandates, and its convoluted formulas.

        • Don 1 year ago1 year ago

          Gary wrote, " I think I predicted early on that LCFF, and the consequent LCAPs, was going to contain enough ambiguities that it would take a court to finally begin the resolve the questions." What I remember is your 100% whole-hearted support of LCFF, not skepticism. As a former social studies teacher you should know that the purpose of the judiciary is not to legislate from the bench and to rewrite ambiguous/bad law, but to … Read More

          Gary wrote, ” I think I predicted early on that LCFF, and the consequent LCAPs, was going to contain enough ambiguities that it would take a court to finally begin the resolve the questions.”

          What I remember is your 100% whole-hearted support of LCFF, not skepticism. As a former social studies teacher you should know that the purpose of the judiciary is not to legislate from the bench and to rewrite ambiguous/bad law, but to strike it down or uphold it. If the LCFF is deemed insufficient as to place in jeopardy the State’s fiduciary duty to uphold the constitutional rights of California public school children, then it should be thrown out fr the legislature to repair or replace.

  4. Don 1 year ago1 year ago

    The State should have a compliance/enforcement mechanism and not rely entirely on litigation to enforce LCFF. Courts should be the last resort, not the first. But, hey, isn’t this what local control was all about – getting out of the compliance business? I would characterize the actions of both the county and the state as negligence at best and complicity at worst.

  5. Don 1 year ago1 year ago

    The county OK’d the LCAP (so-called accountability plans) and the State turned a blind eye despite the well known funding scheme to double count sped dollars as SC monies. If this doesn’t highlight the failings of LCFF’s lack of accountability I don’t know what does. The state constitution guarantees equal educational opportunity and it funds most of the district budget. The suit should name Governor Brown and California as defendants.

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