The attorneys in the class action lawsuit filed by the Department of Education’s (DE) Special Education students, initiated 40 years ago by Rosa Lydia Vélez, asked the Supreme Court to grant them a reasonable period of time to consult those affected about the Monitor Pilar Beléndez Soltero’s proposal to archive 11 of the 87 stipulations included in the partial sentence in this case.

The petition is a request for reconsideration after the Supreme Court refused to accept the request of the attorneys for the students who are asking for more than the 10 days ordered by Judge María Cabrera Torres of the San Juan Superior Court (TPI in Spanish) to consult their clients and respond to the monitor’s recommendation. Neither the TPI nor the Court of Appeals accepted the request from the students’ legal representatives to inform those affected through edicts that there is a request to file the stipulations, that is, the agency’s specific obligations with Special Education Program participants. The 10-day period was disrupted because the students went to the appellate forums.

Since September 2022, the Department of Education has pursued the filing of seven stipulations of the case, arguing their full compliance for four to six consecutive years. These provisions have to do with the disclosure of information that the DE must make about the management of the Special Education Program. In her report to the TPI, the Monitor recommended the filing of 11 stipulations in total between the seven that the DE requested and others she identified.

Closing a stipulation implies that the parties agree that it is no longer necessary to monitor those obligations from the DE because the agency has shown that it provides the required service for an acceptable time, in the monitor’s opinion.

In their request for reconsideration to the Supreme Court, filed on July 12, 2023, the class-action attorneys note errors in due process of law and that the short-term imposed by the TPI would expose them to ethical violations related to their professional responsibility with their clients.

“The Court’s determinations expect that, in expedited terms, the plaintiff, that is, the class made up of thousands of students registered in the Special Education Program between the ages of 3 and 21, their parents or guardians, learn and react to the closure of stipulations consigned in the February 14, 2002 Sentence, without enough notice, without due guidance, and without the real opportunity to discuss, together with their legal representation, the finality, implications, and consequences of the closure of each stipulation,” the request for injunction states.

Since the TPI handed down the sentence by stipulation in February 2002, a monitoring process has been established that forces the DE to report annually on compliance with the provision of services to which special education students are entitled. For this process, a monitor is appointed to determine whether the agency complies with the stipulations contained in the ruling. The Court appointed Priscila Negrón as the first monitor, who resigned in 2011. Beléndez Soltero was appointed in 2013.

What does the DE want to stop reporting?

Education proposes to be relieved of its obligation to report on the Special Education Program, transportation services, evaluation, and systematization of processes.

In September 2022, the Department of Education began pursuing archiving of some of the stipulations of the Rosa Lydia Vélez case.
Photo by Dennis Jones | Metro Puerto Rico

Regarding the evaluation processes, the DE intends to stop reporting the percentage of students evaluated in 30 days or less, as well as the effectiveness of the procedure to refer and evaluate students in one month from their entry into the Program, and the percentage of students who were evaluated in the required time.

Similarly, the agency would not have to demonstrate the system’s effectiveness to identify students awaiting initial evaluations, nor explain the reasons why they were not evaluated within the time established after their entry into the Program, nor how long they waited for the evaluation. It would also not report the percentage of eligibility determination committee meetings for students with or without suspected learning disabilities that included all DE officials or specialists.

As for the provisions related to the disclosure of information about the Program — the Department of Education would not have to say whether it produces and publishes informative materials in newspapers about the services to which these students are entitled, nor if it distributes them among schools. Neither would it inform the orientations to the community, academic, or administrative school staff about the services or rights of Special Education students.

On the other hand, the transportation services that the Department of Education would stop informing about have to do with the types of vehicles and services used by the drivers and the percentage of students with transportation problems for the initial evaluation, as well as the measures taken to transport them to the evaluation.

What does the Special Education class say?

Given the DE’s historical non-compliance with its obligations to students with functional diversity, the filing of these stipulations generates concern to the Special Education Class Lawsuit Steering Committee.

“The monitoring does not measure the quality of services; the focus is on the quantitative. Our day-to-day experience is that the Department really lies more than it delivers. No one can guarantee that, if they’re not overseen, they [Education] would not stop complying,” Committee President Carmen Warren said.

The DE’s legal team explained in one of the case documents that, “if the administrative closure of any stipulation has been ordered on the monitor’s recommendation and the validation process reflects a reality of compliance different from the data and information supplied that supported the administrative closure, the Department’s obligation to present data and information that reliably shows compliance with all the criteria of the stipulation will be automatically reactivated.”

“The lawyers who represent us in court have established that many of the stipulations and the assignment of specific compliance that the monitor has given to the Department requires greater rigor in the monitoring and validation process, direct observation, not only of the data provided by the Department of Education, but to visit places where it can be seen that the data submitted by the Department is real, reliable,” Warren argued in an interview with the Center for Investigative Journalism (CPI, in Spanish).

Education falls short of acceptable compliance levels in 21 stipulations of the case, that is, they do not provide the service or cover the needs of more than 70% of the students in the program according to the compliance report for the 2021-2022 school year.

Which of the stipulations is Education still “failing”?

The Department of Education fell short of the acceptable compliance levels in 21 stipulations that have to do with the services that students with functional diversity require, such as transportation, technological assistance, infrastructure, and provisional solutions. The latter is an alternative mechanism to offer certain services when the DE cannot provide them at the time the need is determined.

For example, the DE fails to comply with stipulation one, which establishes that it will offer students with disabilities both from the public and private systems, complementary and supplementary educational services. The agency also failed to notify those affected about the reduction in financial resources dedicated to the Program. In addition, it still fails to continue providing related services when an individual education plan has not been reviewed or disapproved and to provide them in the summer or the next school year. The agency was also ineffective in conducting the re-evaluations required to determine eligibility and offer educational services within the three-year time frame.

Meanwhile, Education did not achieve effective monitoring or follow-up to find out if there are students who are not receiving related services, nor did it report the reasons and corrective measures to provide them.

According to the latest compliance report, the agency has poor compliance in reviewing administrative complaint procedures and did not negotiate in good faith with class representation when proposing changes.

The DE has failed to provide transportation services to both the school and therapy centers, and to pay for them to the providers within 60 days. Nor has it complied with providing companions or chaperones for the students.

The Department of Education has not been effective in providing assistive technology to its students, that is, equipment or services that help them increase their functional capabilities, according to the report. Sometimes they deny the provision of this service or equipment attributing it to cost, although this should not be a criterion for denying it. The agency also does not guarantee that all public schools are free of architectural barriers.

What is the Rosa Lydia Vélez lawsuit?

This lawsuit began in 1980 when Vélez sued the agency for not providing the educational and related services that her daughter, Isamar Malaret, who was born with cerebral palsy, needed.

A year later, on September 10, 1981, the lawsuit was certified as a class action, and in 2002, the Court handed down a sentence that requires the Department of Education to report back each year to the members of the class on compliance with actions related to the provision of services. When the DE fails to comply, it faces penalties of up to $10,000 per day.

For the 2016-17 school year, students ages 3 to 21 enrolled in the Special Education Program totaled 118,882. Five years later, enrollment dropped to 89,488 students.