When a Kansas school district denied special education services, this family fought back — and won
In one of the costliest cases of its kind, the district was ordered to pay a family nearly $250,000, plus ongoing private school expenses, for denying a child special education services.
(Editor’s note: This story refers to a 2021 due process case filed against the Wichita school district by Josh Dutcher and Sara Zafar on behalf of their child, Kaien, or “K.D.” The student now identifies as Lexi and uses the pronouns she/her.)
Josh Dutcher and Sara Zafar say their oldest child’s problems in school started early.
As an elementary school student — first in Lawrence and then Wichita — Lexi Dutcher would sometimes scream in class or throw herself on the floor. She struggled to keep up academically and had trouble socializing with other children.
Over time, the episodes became more severe. Lexi went to therapy. She saw neurologists and psychiatrists, whose diagnoses ranged from anxiety and attention-deficit disorder to language deficits and autism.
When Lexi was in sixth grade, Josh and Sara asked their Wichita middle school to evaluate her for special education and requested an individualized education plan, or IEP — an educational roadmap for students with disabilities that lays out specialized instruction required by federal law.
“We were always just trying to do our part to be on the team that I thought we were all on,” Josh Dutcher said.
But the school refused and instead proposed a 504 Plan, which is similar to an IEP but doesn’t come with the same accountability or parental rights.
What followed was a five-year battle between the Dutcher family and their public schools. In 2021, Lexi’s parents filed a due process complaint against the Wichita district, alleging that the district violated the Individuals With Disabilities Education Act by failing to evaluate their child for special education and continually denying needed services.
Last summer, a hearing officer ruled in the family’s favor. In one of the costliest special education cases in Kansas history, the Wichita district was ordered to pay Lexi’s parents nearly $250,000 for private school tuition, legal fees and other expenses.
Lexi, 17, attends Logan River Academy, a Utah boarding school for teens with social and emotional issues. The Wichita district continues to pay the tuition, which is about $12,000 a month, and some travel costs for Lexi and her parents.
“We asked for help for years, and what we kept hearing was, ‘Let’s give it more time. Let’s see how things go,’” Zafar said. “We would just shake our heads every time and say, ‘You know … we weren’t kidding when we said we have a kiddo that has a lot of needs.”
Wichita district officials declined to comment for this story.
But the 167-page ruling chronicles years of debate between the family and school officials over special education.
In the fall of 2019, Lexi was failing most of her classes at Southeast High School and her emotional outbursts were disrupting lessons. An algebra teacher emailed her parents and the school’s 504 Plan coordinator to say Lexi was not working in class and “refused to get into groups or even with a partner.” The teacher said she was “starting to get concerned” that the 504 Plan wasn’t effective. She thought Lexi needed more intense help.
Dutcher and Zafar asked again whether Lexi might qualify for a special-ed paraprofessional — an adult who works one-on-one with a special-needs student, helping with lessons as well as monitoring the student’s behavior.
The 504 coordinator at Southeast not only denied the request. According to documents, he said the parents might as well have asked for “Jeff Bezos’ super yacht.”
“It was that far out of reach and that unlikely, in his mind,” Dutcher said. “It was very clear that his understanding of the situation was that they just didn’t have any money to put toward that kind of thing.”
Part of the problem is funding pressure. For more than a decade, Kansas school districts have had to pay for special education services that are underfunded by the Kansas Legislature. State law requires the state to provide 92% of the excess costs of special ed — things like paras and transportation — but it pays only 71%.
Meanwhile, the number of students identified with disabilities has been growing. Since 2005, the percentage of special education students in Kansas schools has increased from 14% to more than 16%. On average, the cost of educating special-needs students is greater because of the need for smaller student groups, additional staff and specialized programs.
So districts have to move funding from other areas of their budgets into special education.
“The district and the special-ed administration is kind of a gatekeeper. They’re the ones who sometimes have to say no,” said Mark Tallman, director of the Kansas Association of School Boards.
“We’d love to provide every service that parents want. We’d like to do that for all kids, but inevitably those services are going to require more people, more staffing, more costs to do that,” Tallman said.
Complaints against school districts over special education are rare. About 75,000 Kansas students have individual education plans, and over the past five years, there have been only about 60 complaints filed with the state.
“That would indicate that on the whole, districts are doing the right thing,” said Mark Ward, a special education attorney for the Kansas Department of Education.
But for Dutcher and Zafar, their child’s academic and emotional struggles at school dominated their lives.
In early 2020, Lexi threatened to kill herself and was hospitalized. Her parents pulled her out of school and enrolled her in a wilderness therapy program and then at Logan River Academy, where she gets regular individual and group counseling.
They tried not to think about the school’s $12,000-a-month price tag. They borrowed from family members and started a GoFundMe page, which raised $25,000.
“We looked at each other, and we took a deep breath and said, ‘This is what we have to do,’” Dutcher said. “With no idea how we were going to pay for it.”
After winning their case against the Wichita district, the parents vowed to refund the donations. They also sought to share their story because they want more families to know about Child Find, the federal mandate that requires public schools to identify and evaluate all children with disabilities.
Due process cases like Lexi’s are rare, with less than 20 filed over the past decade. Dutcher and Zafar think that’s because the process is daunting, expensive and emotionally exhausting.
“This is supposed to be a free process. These are federal rights that the district is obligated to uphold,” Zafar said. “This needs to happen without us having to spend nearly $100,000 in legal fees.”
During a recent visit to Wichita, Lexi played with the family’s dogs in the living room of their east Wichita home. She says her feelings about school have changed.
“I kind of feel more at peace,” she said.
The wilderness program and regular therapy at the Utah school boosted her confidence. Now she’s thinking about a career working with animals, and she enjoys most of her classes.
“Once I got used to it, it just got a lot easier and a little bit more fun,” she said.
Dutcher and Zafar said they’re relieved the ruling went their way. But they wonder how many other Kansas families don’t have the information, time or money it takes to battle the system.
“It feels very vindicating, it feels deserved, but it doesn’t feel happy,” Dutcher said. “It just feels like justice.”
Suzanne Perez reports on education for KMUW in Wichita and the Kansas News Service. You can follow her on Twitter @SuzPerezICT.
The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.