A series of lawsuits alleging systemic discrimination of children with disabilities in childcare facilities across Alabama has been broadened to hold several key state agencies accountable. The Alabama Department of Human Resources, the Alabama Department of Education, the Alabama State Board of Education, of which Governor Ivey is a member, and several county DHR offices and directors were added as new defendants in the lawsuits.

Birmingham attorneys Tommy James of Tommy James Law, Jeremy Knowles of Morris Haynes, and Pensacola attorney Caleb Cunningham of Levin Papantonio Rafferty represent the plaintiffs.

“These lawsuits are long overdue,” said Caleb Cunningham. “These children, like thousands of others, were entrusted to the custody of the State and, instead of learning and growing, were warehoused and stunted. Every child has the right to an education, and to deprive them of that is not only shameful, but also in violation of the law.”

DOJ Report Highlighted Discrimination

Much of the basis of the federal lawsuits, discrimination under the Americans with Disabilities Act, was publicly chronicled in an October 12, 2022, Department of Justice (DOJ) report. The DOJ clearly concluded the Alabama Foster Care System violates the Americans with Disabilities Act by discriminating against students with disabilities. It also cited a 2020 document by the Alabama Disabilities Advocacy Program (ADAP).

At least one high-ranking official with the Department of Education was quoted as saying the department was unaware if the facilities were doing good work with these kids or providing adequate learning materials.

The ADAP noted children sleeping on concrete slabs in dilapidated facilities, with blood and feces smeared on surfaces. The ADAP also indicated that there was no tutoring, a lack of grade-level schoolwork and instruction, a lack of credit recovery to remain on grade level, a lack of computer access for school work, and a lack of job and/or career training.

Attorneys Expect More Children

Six lawsuits were filed earlier this year on behalf of children whom DHR had placed in facilities like those highlighted in the DOJ and ADAP reports. The attorneys representing the children expect more children to come forward.

“I am proud to represent these children,” said Tommy James. “Giving voice to the voiceless, these lawsuits are about bringing systemic change. So many children are locked away and never given the tools to succeed. It is time for Alabama to do the right thing.”

“Our goal is for thousands of other children to come forward to demand the state honor its legal and moral obligation,” said Jeremy Knowles.

How Defendants Are Responding

All 6 cases currently pending in the United States Middle District of Alabama are awaiting answers from the defendants. In preliminary filings, attorneys for Alabama Department of Human Resources Commissioner Nancy Buckner stated, in part, that she has no authority to act as to education in Alabama and that DHR has no authority to administer education programs in Alabama. The filing by Buckner did not address the fact that DHR licenses facilities like the ones these children were placed in, nor did it address the fact the children were placed there by Buckner’s DHR.

In their initial filing, attorneys for Defendant State Superintendent Eric Mackey stated, among other things, that Mackey was unaware of the specific suffering of each child and, therefore, the cases should be dismissed. Attorneys for both Mackey and Buckner also claim that the cases should be dismissed because of the age of the discrimination which forms the basis of the allegations. Mackey and Buckner claim this despite the fact almost all the children in the lawsuit are still too young to vote. The Court has not ruled on any filings yet.

Since the filing of these original documents, Defendant Buckner has hired outside private counsel. “Rather than working with us to find a solution to these problems, the State has regrettably chosen to hire private lawyers, which will waste tremendous amounts of taxpayer dollars,” James said.