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Detroit — Attorneys for Flint schoolchildren allege the Michigan Department of Education is systemically failing to meet the needs of special education students in the wake of the city’s lead crisis.

Flint's special education population is growing at a time it lacks 25 percent of its special education teaching force, according to a motion filed Monday on behalf of Flint schoolchildren by the ACLU Fund of Michigan and the Education Law Center.

Both legal teams allege that Flint Community Schools, in which nearly 20 percent of students qualify for special education, lacks a quarter of its special education teaching force "let alone the additional staff that may be needed to serve the growing numbers of students with disabilities," attorney Lindsay M. Heck said.

The statewide special education rate is 13.6 percent. The percentage of special education students in Flint schools has increased by from 14.88 percent in 2014-15 to 19.77 percent in the 2017-18 school year.

Using an estimate of one special education teacher for 15 to 20 students, between 240 and 320 currently enrolled students are lacking appropriate teaching staff, let alone necessary support staff, Heck says.

"Stated differently, in a district with 902 special education students as of the 2017-18 school year, between one-fourth and one-third of these students have been left with no special education teacher," the suit alleges.

Attorneys for the children allege the state education department, the Genesee County Intermediate School District and Flint schools failed to provide adequate resources and support to help Flint schoolchildren meet the challenges they were facing in getting special education services.

The problem was highlighted, the attorneys allege, when Michigan became the only state in the country to receive a “needs intervention” rating from the U.S. Department of Education — which The Detroit News first reported — for failing to meet special education requirements under federal law. 

"The combination of these systemic failures has led to a special education crisis that requires a systemic solution. Certifying a class under these circumstances ensures an opportunity for plaintiffs to obtain global relief that will benefit every FCS student with special education needs," the suit alleges.

State education department spokesman Martin Ackley on Tuesday declined to comment, citing pending litigation. 

John Miller, an attorney representing Genesee County Intermediate School District, said the district "believes the present motion seeking class certification violates the very spirit of our special education laws."

"Identifying and providing services to disabled students who might be eligible for special-education services is a highly individualized task. Every step of the process is child-specific," he said. "This is the exact type of case that is not capable of resolution on a classwide basis. There is no one-size-fits-all approach to special education.”

The motion asks U.S. District Judge Arthur J. Tarnow to certify a class of all current and future Flint public schools students ages three through 26. No court date has been set for the motion, but the case has a trial day for next spring, attorneys said.

The lawsuit also alleges that in 2014 when Flint’s water source was changed and lead from the city’s deteriorating pipes began leaching into the city’s water supply, the district faced a deficit of $21 million in its budget.

Under a directive by the MDE, the district was forced to make staffing and program cuts. By fall 2015, when the state first acknowledged the lead crisis, the district still faced a budget deficit of $10 million, the suit alleges.

"The severe budgetary shortfalls trapped FCS in a dilemma of the state’s making. Its resources were unduly constrained at a time when ... the district urgently needed to prepare for a surge in the needs of its students," the suit alleges.

Attorney Greg Little, with the Education Law Center, said the state needs to provide the financial resources to hire the additional staff or provide the staff to meet the needs of Flint's growing special ed population.

"Flint Community Schools does not have the resources," Little said.

Earlier this year attorneys for the children reached a $4.1 million settlement with the state of Michigan to fund a program to identify all Flint schoolchildren from birth through age 25 and place them on the Flint Health Registry for universal health screenings.

The money is to go toward staffing and support for the Neurodevelopmental Center in Flint, which will be part of Hurley Hospital and staffed by the Genesee Health System, the county's mental health provider. There, each child will undergo screening for potential educational disabilities. Dr. Mona Hanna-Attisha will run the center, to be operational later this month.

It will also pay for training teachers and administrators on the program and how to recognize children potentially harmed by lead who may need referrals for treatment.

The case involving Flint schoolchildren began in 2016 when the ACLU of Michigan sued Flint Community Schools, the state education department and the Genesee ISD in a federal civil rights lawsuit that challenged systemic deficiencies in Flint's special education program.

The case focused on allegations that the Michigan Department of Education failed to find and serve children with special needs and to address the impact of the water crisis, which potentially put thousands of children at risk of developing a disability or worsening an existing disability.

Flint's water was contaminated with lead when officials used corrosive river water from April 2014 to October 2015 that wasn't properly treated. In children, lead exposure can result in serious effects on IQ, ability to pay attention and academic achievement.

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