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Settlement is Discussed in Class Action Special Education Lawsuit in Pennsylvania

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The Federal District Court has set a Fairness Hearing in Gaskin v. Commonwealth of Pennsylvania, Department of Education, a statewide special education class action case for Friday, June 24, 2005, at 9 a.m. in courtroom 11A, U.S. Courthouse, 601 Market Street, Philadelphia, PA to consider if the Court should give final approval to the Settlement Agreement submitted to it by the parties.

The Notice of Proposed Settlement of Class Action Lawsuit contains a summary of the Settlement and sets forth the procedures for participating in the hearing and for commenting on the proposed Settlement.

The Notice is directed to "The parents of all students who are eligible for special education and who have been denied the opportunity to receive a free appropriate education in regular classrooms with individualized supportive services OR have been placed in regular education classrooms without the supportive services, individualized instruction, and accommodations they need to succeed in the regular classroom."

The Gaskin Family

On November 18, 1983 Joseph and Karen Gaskin became the proud parents of a second daughter whom they named Lydia. The Gaskin family was elated but their joy was tempered when their doctors informed them that Lydia had Down Syndrome and that she would likely never be able to communicate, do things for herself or relate with other children. Overwhelmed by the dismal assessment they received, the new parents felt a sense of hopelessness until one of their nurses offered to bring her two year old son, who also had Down Syndrome, to meet the family. They watched as that child acted just like other toddlers-he played, laughed, received and displayed affection. Their outlook, in an instant, was transformed.

What the Gaskins saw in their daughter, others necessarily did not. And while Lydia had attended a regular nursery school and found acceptance there, the story would not be the same when she entered public school. Many sought to define Lydia first and foremost by her differences.

Lydia's options for kindergarten included a regular classroom, without any support, or a mixed assessment program with support, but two hours away from her home. Her parents chose the latter option. Lydia failed to thrive there, in large part due to the uncontrolled nature of the classroom. She oftentimes cried when her bus came to pick her up and faked being sick in an effort to avoid attending. Her parents ultimately got her into a regular classroom in her neighborhood school with the support services she needed. But in first grade Lydia was placed in a learning support class due to a lack of funding for an aide, with a promise by the district to "look into" a more inclusive program. It took eight hearings, along with a state appeal, to get Lydia mainstreamed for only a third of the school day. It wasn't until middle school that Lydia was included finally in regular classes for all but one hour per day.

When Lydia was ready for high school her parents knew they wanted her to be tracked in college-bound courses. In this way, she would continue to be challenged, as well as maintain and develop relationships with her peers-disabled and non-disabled kids alike. But the district sought a life skills placement. After seemingly endless battles with school administrators and a promise by the Gaskins to continue pursuing their legal rights, the district finally agreed to give it a try.

As a high school student, Lydia was required to complete a senior project and she used it as an opportunity to learn more about Down Syndrome. As part of her research, she interviewed six persons with Down Syndrome from varied age groups and asked them a series of questions about their lives. The answers Lydia presented to her class told of their desires for family, friends and the achievement of future goals relating to work and education-desires shared by all. Lydia came away from the project viewing for the first time persons with Down Syndrome as belonging to a type of culture as opposed to members of a deficient or defective group. She felt proud of who she was. Lydia's classmates all gave her As and her teacher wrote home in a note that she was moved to tears by the presentation and verbally stated to the family that her classroom was better because of Lydia's presence and that everyone was proud to have her in class.

The class action lawsuit, Gaskin v. Commonwealth, was named such because Lydia's case was the first inclusion matter in Pennsylvania to reach the state level. In reflecting on the struggles they have endured with regard to their long battles for Lydia's inclusion in regular education classes, the Gaskins are not regretful.

While inclusion posed many challenges for Lydia, today she is a responsible, hard-working young woman with many strong friendships. She volunteers on a regular basis and is not afraid to be challenged. She is a full and participating member of her community-capable of making meaningful contributions because of the opportunities she had. Her parents note that what is learned in a regular classroom cannot be done in a special education, pull out setting. The lessons go beyond the academics that foster independence, and include also mutual respect, tolerance, connectedness and compassion for fellow persons.

The Gaskins have long contended that the presence of children with disabilities in regular classrooms with non-disabled children transforms classrooms into better classrooms and students, teachers and administrators into better people. Their hope is that the settlement of this lawsuit will open not only the doors of more regular classrooms to exceptional children but also the minds and attitudes of society.

The Koneski Family

When James and Dawn Koneski first contacted the Law Center's Judy Gran they were intent only on finding a lawyer to aid in redirecting public school monies to pay for a private school for their son Brett, who has Down Syndrome. Instead, they found an advocate who, within three days of the call, was at their home telling the family of its legal rights under IDEA and of a class action lawsuit that was about to be filed against the state. After some consideration, they joined the suit. And Judy, they say, patiently supported them in their struggles at every critical juncture thereafter.

The Koneskis selected their school district, Willkes-Barre, because of the high quality of its schools and a dream that their son would attend his home school with his neighborhood peers and reap the benefits of the excellent educational system. Brett had received early intervention services, attended preschool and, at the time of entering kindergarten, had demonstrated virtually the same academic achievement as a typically beginning student.

In kindergarten, Brett was assigned to a new teacher who had never taught kindergarten before. This placement resulted due to other teachers' refusals to have Brett in their class. The supports and services promised by the district to enable him to attend regular class were not provided. Brett began to backslide and later that year his teacher reported that he was failing academically, he was not communicating with his peers, he was being humiliated in the classroom and that his parents' insistence on his inclusion in regular classes amounted to child abuse. This teacher admitted, his parents say, that he was not in sympathy with the inclusion of children with Brett's disability in regular classes and that he still did not know how to teach Brett.

Brett was transferred to another school. There he was placed in a regular kindergarten class with an experienced teacher and was treated like any other child. His confidence grew and socialization skills flourished. While the Koneskis still struggled throughout the elementary years to secure for their son the support services he needed, Brett continued to find measurable acceptance.

Brett's mother proudly recounts the time her son participated in a theatrical program in fourth grade entitled "Kids on the Block" that involved one kid in a wheel chair, one with Down Syndrome, one blind and two typically developing. The program consisted of a series of skits and then a discussion with students about how they viewed children who were not like themselves, and how they felt they would treat them. After the program, one of Brett's classmates said, "Well, if we had a kid who had a disability, I don't think we'd treat him any differently." Her answer speaks volumes to the benefits of inclusion.

By senior high, things sadly changed dramatically when the district offered only the option of a life skills or learning support classroom. The latter had a marked reputation of being out of control with little emphasis on learning. Feeling they had no other alternative and fearful of another series of uphill, exhausting battles with the administration to get Brett into the general curriculum, the Koneskis reluctantly acquiesced.

Brett's curriculum in life skills consisted of such things as reciting his home address, personal hygiene and how to use public transportation-things Brett already knew. And sadly, many of these lessons were repeated in subsequent years and Brett's interest in learning waned absent any academic challenge. In addition, his opportunities for socialization with non-disabled peers were all but eliminated-with the exception of lunch. And even in lunch, there was little interaction between the special needs students in the life skills program and their non-disabled peers. No programs akin to those in his elementary school were promoted.

The Koneskis feel they made the best decision they could given the few options available to them. At least, in their eyes, Brett was in a protected environment in his high school years, sheltered from the policies and prejudices that still hinder inclusive education. But that "forced" protection, the Koneskis realize, keeps education from becoming what it should be-a place where teaching to the needs of the individual is the goal. Dawn Koneski recalls longingly the early years when Brett's classmates did not notice that he was different and openly welcomed him into their circles of games and friendships. She questions why it has to take a lawsuit of this magnitude to get others to see what was so apparent to a group of young children. She is confident that the settlement of this lawsuit will begin to change the landscape of education throughout Pennsylvania so that parents like her will not have to invest so much time and energy in endless battles with school districts for services to which the law already entitles them.

© 2003 The E-Accountability Foundation