The opinion of the court was delivered by: William T. Hart, District Judge.
MEMORANDUM OPINION AND ORDER
This is a class action brought by three handicapped children,
Tonya K., Cleo C., Jr. and Dennis A. ("named plaintiffs"), who
have been excluded from the Chicago public schools due to their
handicaps but who have not been placed in appropriate private
educational programs. The defendants are the Chicago Board of
Education, its Interim General Superintendent and Assistant
Superintendent for Pupil Personnel Services and Special Education
and the Illinois Superintendent of Education ("defendants").
Federal jurisdiction is asserted pursuant to the Education of
All Handicapped Children Act, 20 U.S.C. § 1401 et seq. and
implementing regulation 34 C.F.R. §§ 300.1 et seq.; Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and
implementing regulations 34 C.F.R. §§ 104.1 et seq.; and the Due
Process and Equal Protection Clauses of the United States
Constitution; and pendent jurisdiction pursuant to Article 14 of
the Illinois School Code, Ill.Rev.Stat. ch. 122, §§ 14-1.01 et
seq. The named plaintiffs seek declaratory and injunctive relief
on behalf of all similarly situated handicapped children, ages
three to twenty-one. The named plaintiffs allege that the
defendants failed to timely place them in private residential
educational settings in violation of administrative orders and
their rights to a free appropriate education.
The matter currently is before the Court on a motion for class
certification. The class proposed is
all handicapped children, ages 3 through 21 who a)
have been excluded, are being, or will be excluded
from the defendant Chicago Board of Education public
schools because of their handicap, b) have been, are
being or will be determined by either the Chicago
defendants or through the state administrative
process to need placement in a private educational
facility and c) have not been, are not being and will
not be placed in such facilities by the Chicago
defendants in a timely manner.
The motion makes no distinction between members who require
placement in a private residential facility and those who require
education in a private day facility.
The defendants object to class certification for six reasons:
1) A class composed of future claimants is overbroad and
2) The allegation of "untimely" placement is untenable where,
as here, the class will include members with multiple handicaps
requiring individually tailored responses;
3) Numerosity is lacking as "untimeliness" of placement is
4) Typicality is lacking since the named plaintiffs need
residential care but seek to represent members who need day
placement as well as members requiring residential care;
5) No factual or legal question is common to the class due to
the unidentical problems and needs of its members; and
6) The claim is moot since the named plaintiffs have been
For the reasons stated below, the Court finds that the class
sought to be certified meets the requirements of Fed.R.Civ.P.
23(a) and 23(b)(2). Accordingly, the ...