Couple Alleges San Diego Unified Wrongly Denied Special Ed Services To Their Son
Five-year-old Eli Chery-Davenport's parents first noticed their son’s hearing problems when he was just a toddler. He would hold his toy guitar right up to his ear to hear the noises it made.
"I would test it and hold it close to my ear, and it hurt," said John Davenport, Eli's father. "It was obvious at that point."
Thankfully, Davenport and his wife Farah Chery were able to put Eli in the deaf and hard-of-hearing program for toddlers at San Diego Unified's Lafayette Elementary School in the Clairemont Mesa neighborhood.
But he aged out of that program when he was three, and the district has denied him entry into the full-day program ever since. This despite the fact that multiple experts have diagnosed Eli's hearing problems and he now must wear a hearing aid in both ears.
"He didn't meet the district's criteria for hearing impairment, so they kicked him out," Davenport said. “He should’ve remained in that school.”
Under the federal Individuals with Disabilities Education Act (IDEA) children with diagnosed disabilities must receive a free and appropriate public education. The federal law is intended to ensure students receive the services they need regardless of their learning disability.
But, with the possible exception of teacher pensions, districts fear spiraling special education costs more than any other ongoing expense.
Despite the strain on district budgets, experts say most students are able to easily get the special education services they need. Eli’s case, however, illustrates how serving students with disabilities can become a costly and litigious arena for both families and educators.
Davenport and Chery say they have “no clue” why the district did not provide the comprehensive services Eli needed. For the past two years, the parents, both physicians, have spent upwards of $30,000 to provide Eli with a patchwork of private services. Despite the advantage of being health experts with financial resources, they say Eli is still significantly behind where he should be. The pandemic has only made things worse.
Eli’s parents also accuse the district for discriminating against their son for being biracial. Davenport is white and Chery is Black. They say the district has made exceptions for Eli’s white peers.
“What he needed was to be put into deaf and hard of hearing schooling full time,” Davenport said. “If he remained at (Lafayette Elementary), his speech would be far improved from where it is now. There’s no question it would be.”
The couple sued the district in Nov. 2019 and again in Oct. 2020 for denying Eli services and for reimbursement for the private instructors and therapists. So far, they say they’ve spent more than $20,000 on attorneys fees.
San Diego Unified School District spokeswoman Maureen Magee would not comment on Eli’s case, citing the pending litigation. Also, Magee did not answer general questions regarding the district's special education policies.
A rigged system?
In Sept. 2019, nine months after Eli was denied entry into the preschool program, the parents met again with the team of educators and therapists overseeing Eli’s Individual Education Plan, or IEP. IEP’s are documents districts develop in consultation with parents to determine a student’s special education needs and eligibility.
The process of developing an IEP can be contentious, with parents and school officials having conflicting ideas regarding what services a student needs. In Eli’s case, the district disputed the findings of an audiogram that showed hearing loss in both his ears and refused to identify him as hearing impaired in his IEP.
Gwen Suennen, a deaf and hard of hearing specialist, conducted assessments at the family’s request that same year. She said it was obvious that Eli qualified as hearing impaired.
“I have three audiograms that clearly show he has a hearing loss in both ears,” Suennen said. “If I look at his audiogram, he has a moderate rising to mild sloping down to a moderate loss in both ears.”
Summer Stech, a former special education teacher who now practices special education law, said while the system is supposed to protect students, parents often feel it is rigged against them.
“A parent is an expert on their child and may very well know that their child isn’t getting what they need, but they’re stuck in this situation where they have to combat the district’s expert opinions by having to find their own expert opinions,” she said.
Stech says most families are able to get the services they ask for from their school districts. Disagreements occur only in a small percentage of cases, and those parents who can afford it hire attorneys to help interpret the gray areas in federal law in their favor.
“We know that someone can take the same data and look at it two different ways and come out with two different determinations,” said Stech. “Or there’s the issue of whether the evaluation was done appropriately. Did you reach out and get the right information? Did you talk to the right people? Did you do the right tests?”
In Eli’s case, Suennen was just one of several experts and educators who agreed he should be qualified as hearing impaired.
In records of emails acquired by Chery and Davenport’s attorney, district employees also agree that Eli qualifies as hearing impaired, but they also refer to the district’s own internal criteria for determining eligibility for special education services.
The IDEA defines hearing impairment as “an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s education performance but that is not included under the definition of deafness.” However, San Diego Unified establishes a specific metric for hearing loss because the federal law, as one district employee writes, “is so broad we could easily qualify a lot more students and not be ‘low incidence’ if we wanted to ...”
Suennen said one-on-one services like the ones Eli needed can be a challenge for districts because they often don’t have the staffing and resources to provide all the services requested by parents.
But Stech says it might be less costly for districts to just provide the services instead of resorting to litigation.
“Sometimes you do wonder how they end up paying all the attorneys fees and all the other costs,” she said. “When you look at what it would’ve cost to just provide the service in the first place and see if it is in fact what the student needs, it probably would’ve saved a lot of money.”
After the Sept. 2019 IEP meetings, Eli continued attending private sessions for speech and language development. When the pandemic began, those lessons went virtual.
In Oct. 2020, another IEP meeting was scheduled for Eli after one of his instructors informed his parents that he had fallen critically behind. In a recording of the IEP meeting, Davenport urges the team to place Eli in the deaf and hard-of-hearing program at the Escondido Union School District, the only local program that was at the time offering in-person instruction.
“What was two years ago a hearing impairment leading to a speech delay that needed aggressive treatment now has become an emergency,” Davenport said during the meeting. “While his classmates are learning to write and spell and read, Eli struggles to verbally express even the most basic of ideas. He is in danger of being left behind to a point that could become irreversible.”
Davenport said the district denied the transfer request to Escondido Union. Also, though the district did ultimately agree to place hearing impairment on Eli’s IEP as a secondary disability, the case manager said the team needed to conduct more assessments before moving forward with services.
Davenport said he followed up repeatedly to schedule the assessments, but the district remained noncommittal.
“I emailed them every single day twice a day, asking them to schedule these appointments,” he said. “They sent me one email back saying, ‘We’ll get back to you.’”
Chery and Davenport concluded that they could not wait any longer.
“His progress has been very, very slow,” said Chery. “He is nowhere near age level. I’d say he’s maybe at a two-year old’s speech.”
In November, they enrolled Eli at the John Tracy Center in Los Angeles, which was offering full-time, in-person instruction for deaf and hard of hearing students. The parents rented an apartment in Los Angeles and took turns living with Eli for a week at a time until the school suspended in-person instruction in December. The family went back to the routine this week when the school resumed in-person instruction.
Davenport and Chery say that living apart from each other and their two other children is challenging, but they said it’ll be worth it if Eli is able to catch up.
“We have resources, but it wasn’t enough,” said Chery. “So everyone, no matter where your income status is, relies on those public services.”