The federal government is investigating alleged discrimination by Albuquerque Public Schools against a student with a disability.

The claim involves Michael Bruening, a 16-year-old autistic student who last saw an APS classroom in May 2015, according to his mother, Laura Gutierrez. The school district placed Bruening on homebound instruction, or education at home, but according to Gutierrez hasn’t done enough to support his educational development.

Gutierrez, who said she does the bulk of instructing her son now, estimates he’s only attained education levels around the 6th or 7th grade.

“I can’t teach him without him blowing up,” she said in a recent interview.

APS spokeswoman Monica Armenta in an email declined to address the investigation, writing that the school district “isn’t in a position to comment on the case.”

U.S. Department of Education spokesman Jim Bradshaw confirmed in an email to NM Political Report that the investigation into Gutierrez’s claim is ongoing, though declined to comment further “because it is an open investigation.”

For years, Gutierrez has been vocal about multiple alleged use of force incidents from APS school officials against her son during episodes prompted by his disability. Most recently, she filed a lawsuit against the school district for withholding public information related to its internal investigation of an incident involving her son.

Last April, Gutierrez filed a complaint with the U.S. Department of Education Office of Civil Rights (OCR) alleging the school district failed to enforce her son’s individualized education program, or IEP. Gutierrez also alleged APS retaliated against her by ignoring her requests for her son’s education after she spoke out publicly against the district.

On July 20, Department of Education Supervisory General Attorney Sandra J. Roesti wrote to Bruening that the agency’s Office of Civil Rights was opening an investigation into her allegations. Specifically, the agency is investigating whether APS violated Bruening’s right to a “free, appropriate public education,” a legal term also known as FAPE.

In her letter to Gutierrez, Roesti wrote that if her agency finds wrongdoing by APS, it could result in “proceedings seeking the termination of Federal funds to the District or a referral to the Department of Justice.”

“These enforcement procedures will be initiated only if a violation is found and then only if we are unable to negotiate voluntary remedial action,” Roesti added.

Gutierrez’s complaints also previously drew attention from the federal Department of Justice.

‘Rocking the boat’

Although Roesti’s letter specified that the Department of Education was looking into Gutierrez’s specific allegations as opposed to a broad pattern and practice investigation into APS’s special education system, the agency’s decision to open an investigation is rare nonetheless.

“Generally speaking, it’s not common,” Bill Koski, an attorney and director of the Youth and Education Law Project at Stanford Law School, told NM Political Report in an interview. “It’s not that usual for OCR to get directly involved in investigating a claim.”

Part of this, Koski emphasized, is because parents of special needs students aren’t always aware of their rights. Or, if they are aware, they are unwilling to go through the long, uncertain and potentially draining process of opposing a school district.

“It takes a fair amount of courage, frankly, to rock the boat,” Koski said.

That’s because school officials can get defensive in these situations, said Kendra Morrison, executive director of Rio Bravo Advocacy Group, a Los Lunas-based organization which helps develop IEPs for special needs students. IEPs are education plans developed for each special education student through ongoing negotiations between parents and school districts.

Morrison, who has 20 years of experience sitting in IEP meetings as an advocate for parents, said conflicts often start with parents and school officials disagreeing on whether the school district is properly following a special needs student’s IEP, which breaks trust between the parents and the schools.

“When you have an untrusting relationship with the district, it’s going to be compounded anytime another [use of force] incident happens,” Morrison said.

She added that OCR investigations like the one involving Gutierrez and Bruening can be lengthy and testing for families.

“You could be sitting for a year,” Morrison said. “Parents have to be in it for the long haul.”

Morrison and other advocates add that these types of conflicts between parents and school officials aren’t personal.

“As a special needs parent, you never quite know if they’re doing what you need, and  what you think they need you always have to constantly fight for,” Joel Davis, a Rio Rancho attorney and father of an 8-year-old autistic girl, said. “I don’t think it’s a knock on our school system.”

APS has taken steps to boost its special education services, most notably with the opening of the Aztec Special Education Complex, a 65,000 square-foot, $22 million building that serves 135 students specifically for special education services.

Though some disability rights advocates laud the intention of the facility, some point to scientific studies that show autistic children, for example, perform better when placed in classrooms with non-special needs students. This is a practice commonly called “mainstreaming.”

Sarah Baca, executive director of the New Mexico Autism Society, agreed with this when she cited how the federal Individuals With Disabilities Act, which guides how students with disabilities in the U.S. are education, compels school districts to place special needs students in the “least restrictive setting.”

“The thing about autism is, a lot of these kids can be in an inclusive setting,” Baca said, referring to mainstreaming special education students. “They just need a lot of support and accommodation.”

Enforcement of new restraint guidelines questioned

Special education students, of course, are costly for school districts—by some estimates more than twice the cost per pupil of non-special needs students.

“When a kid needs consultation, that’s not cheap,” Katie Stone, an Albuquerque mother of two students enrolled in special education, said in an interview. “The district is required to provide it, but they are also facing teacher shortages.”

Another layer that adds to the complexity is training school officials on how to approach special needs students. Earlier this year, Gov. Susana Martinez signed a bill that for the first time regulates use-of-force practices in New Mexico school districts.

But Gail Stewart, an Albuquerque attorney who specializes in special education rights, questioned whether APS is enforcing the new law. Stewart filed a public records request in August with the school district for all APS policies in compliance with the new law, which was sponsored by state Reps. Deborah Armstrong, D-Albuquerque, and Jim Smith, R-Sandia Park.

The new law limits use of restraint against students to only emergency situations and requires immediate notification of the student’s parents or guardians when such issues happen.

None of the APS policies that Stewart received from APS appeared to reflect the new law. One district memos she obtained allows “use of physical management” when a student’s behavior “results in property damage likely to result in harm of self or others.”

Stewart points out that property damage is not listed as an emergency scenario under the new law.

“I am getting calls still that kids are getting restrained for non-emergency situations,” she said. “I don’t think there has been any attempt to tell people that the restraining rules have changed.”

APS Policy Analyst Carrie Brunder, however, said each school in the district has been working on plans to comply with the law for the past two months that will be submitted this month to the state Public Education Department for review. In a written statement, Brunder also said that each school is working to have a special education specialist and designated crisis team in place.

“Each member of the crisis team is required to be trained in safe restraint practices,” Brunder said, which also includes “de-escalation techniques.” School district principals are trained “to identify trauma and escalating behavior” so they can use “a preventative approach,” she said.

She added that APS “has always had an incident report that staffs are required to fill out in any incident of restraint” but acknowledged that “we do need to edit the police to say ‘notification will be sent home’ rather than just to administration.”

“I expect that edit to happen in November, but the practice through the site safety plan is already codified,” Brunder said.

Failure to enforce the new restraint law could come with consequences. An analysis by the state Legislative Education Study Committee estimates that school districts that drop the ball on it could cause “more instances of tort claims against school districts and charter schools, with increased legal and settlement costs.”

Sometimes, parents run into enough troubles with school district management that they withdraw their children from traditional public schools altogether and place them in charter or private schools. That time came for Stone’s daughter, who is diagnosed with cerebral palsy, after she cycled through four public schools in APS by the fourth grade.

Not all parents of special needs students can afford such flexibility.

“I come from a background where I can afford private school,” Stone said. “There’s really a lot of shut doors for families.”