Judge: Dallas failed to educate child

Elise Marsh and her mother Audra Marsh play in the snow.

Photo courtesy of Audra Marsh
Elise Marsh and her mother Audra Marsh play in the snow.



DALLAS — A Dallas student prevailed in a special education due process complaint against the Dallas School District in a ruling issued earlier this month.

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Elise Marsh and her mother Audra Marsh play in the snow.

Office of Administrative Hearings Senior Administrative Law Judge Joe L. Allen ruled in favor of Elise Marsh, 12, and her mother, Audra Marsh, in an order that said the district failed to educate her in accordance with the Individuals with Disabilities Education Act (IDEA).

The complaint was filed on Jan. 26, 2017 and covers the period from Jan. 26, 2015 to the present. Hearings in the case took place in July, September and October of 2017.

At issue was whether the district failed to: allow Audra Marsh to participate in individualized education plan meetings, provide proper evaluations in all areas Elise’s suspected disability, provide proper modified instruction and proper placement at school.

Elise has attended school in Dallas School District since preschool and has been eligible for special education the entire time.

Marsh said Elise enjoyed going to school in her early elementary years. That changed as she got older and eventually Marsh pulled her out of school. Now a tutor works with her for one hour per day.

Marsh said the order brought mixed emotions, of validation, but also disappointment in the fight it’s taken to get to this point.

“Receiving acknowledgement for the incredible struggles and injustices we have suffered also brought renewed feeling of disappointment,” she said. “Historically I have been met with so much resistance that I have had to suppress and compartmentalize my emotions to remain functional. My child has suffered great trauma and lasting effects from her experiences. The ruling is just, and in spite of the emotions, there is relief.”

Elise has Dandy-Walker malformation, a disorder that affects brain development and results in microcephaly. She has vision and hearing impairments, seizures and dysautonomia, an autonomic nervous system disorder that can cause temperature fluctuations, breathing and heart rate issue and gastroesophageal reflux disease. She is nonverbal.

Marsh said her daughter is not completely blind or deaf but is classified as deafblind because of her impairment in both. Marsh added she has same likes and interests as her peers.

“She is very intelligent, understands language, is social and able to communicate,” she said. “She enjoys horseback riding, swimming, skiing, her service dog Elliot, cat Misha, clothing and shopping and Disneyland.”

Marsh said the weeks of hearings revealed to her that her daughter’s situation was worse than she believed. She said district employees were told by Diana Christensen, special education teacher at Whitworth, not to inform her when Elise arrived at school without emergency medication and that during some years, her education was designed by non-licensed staff.

“The nurse and assistant would put things together by ‘googling’ and the run them quickly by the special ed teacher,” Marsh said.

She said those weren’t the only shocking details she discovered during the hearings.

“Elise stopped wanting to go to school and I stopped making her,” Marsh said. “I wish I would have pulled her earlier.”

Allen confirmed the issues in the due process complaint in the 114-page ruling and ordered the district to make up for that with compensatory education. That includes creating an appropriate individual education plan, evaluations for suspected disabilities, and staff training to better teach deaf-blind students.

Dallas Superintendent Michelle Johnstone, in a statement through the district’s attorney Kelly Noor, said the district disagrees that it didn’t provide an appropriate education to Elise.

“It has devoted much time, staff, effort, training, and resources over this time period to develop a program to meet the student’s unique needs,” Johnstone said. “There were 21 educators or para-educators involved with the student’s program, many with specialized expertise to evaluate and provide related services. The district worked with the former director of Oregon Deaf-blind Project and others to provide specialized training to staff on addressing the student’s needs.”

Marsh and her attorney, Diane Wiscarson, of Wiscarson Law, asked that the judge order extensive training on requirements of IDEA. He declined to impose that, saying he didn’t have evidence to suggest district employees were ill-equipped to meet the needs of students with less complicated health issues and education requirements.

Marsh disagrees, saying she heard from several other families in the district who have concerns about their children’s education. She hopes the ruling can be a lesson to parents and school districts alike.

“I am also hopeful that this will be an effective learning tool for other districts, set precedents and inspire culture change in regard to these types of students,” she said.

Allen acknowledged the benefit of a deaf-blind intervenor for Elise but did not order the district provide one.

“Unfortunately, the provision of a deaf-blind intervenor in this state presents a logistical problem, as there is not a local program providing intervenor credentials or certification,” he wrote in the order.

Allen did order all staff who work with Elise, including her nurse, educational assistant, and special education teacher, to complete deaf-blind training modules provided by the Oregon Deaf-blind Project within 90 days of the order.

Marsh said she’s “cautiously hopeful” about the impact that training could have for her daughter.

Allen ordered evaluations and a facilitated IEP meeting, which the district and Marsh are working to set up.

Johnstone said the district will work with Marsh to address the order, but said Allen’s ruling failed to acknowledge the effort put into providing Elise with an education.

“The district has hired and trained professional, caring staff to work diligently in the best interests of this student’s education,” she said. “It is unfortunate that the judge’s decision did not reflect all of the efforts made to support the student’s unique set of educational needs.”

Marsh said not all of the educators and staff who worked with her daughter were part of the reason she filed the complaint, particularly Elise’s former nurse Jennifer Oace.

“There are some people I believe deserve to suffer the consequences of their actions and there are some who are caught in the middle who are not at fault,” she said.

She added rather than feeling like the order is resolution, she said it’s more like a beginning of correcting failures in her daughter’s education.

“My hope is that this order will be encouragement for families to continue to fight for their children, to stand up for what is right, and not be afraid,” Marsh said. “My child is not less than; she is just different. I am blessed to be equipped to be her voice in a world who doesn’t always understand her.”



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