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Reid L. Illinois State Board of Education

May 13, 2002

REID L., ET AL., PLAINTIFFS-APPELLANTS,
v.
ILLINOIS STATE BOARD OF EDUCATION, GLENN W. MCGEE, IN HIS CAPACITY AS ILLINOIS STATE SUPERINTENDENT OF EDUCATION, AND COREY H., ET AL., DEFENDANTS-APPELLEES.
COREY H., ET AL., PLAINTIFFS-APPELLEES,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES, APPEAL OF: REID L., ET AL., PROSPECTIVE INTERVENORS.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 01 C 4180, 92 C 3409--Robert W. Gettleman, Judge.

Before Rovner, Diane P. Wood, and Evans, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge

Argued September 25, 2001 and February 15, 2002

In these two cases, which we have consolidated solely for the purpose of issuing our opinion, certain parties are seeking to enjoin the Illinois State Board of Education (ISBE) from promulgating and implementing new rules on special education teacher certification. The Reid L. parties are minor children enrolled in Illinois public schools outside of Chicago; they all have been classified by their respective school districts as having disabilities, within the meaning of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. sec. 1400 et seq. The Corey H. parties are their counterparts within the City of Chicago.

After a great deal of litigation, which we describe below, the district court entered a remedial decree designed to bring the Illinois system of special education teacher certification into compliance with various requirements of the IDEA, particularly its directive that students be educated in the least restrictive environment, see 20 U.S.C. sec. 1412(a)(5). The two appeals before us represent the efforts of the Reid L. parties to prevent the new rules developed pursuant to the district court's order from entering into effect (or, if necessary, to roll them back). The Reid L. appeal (No. 01-2707) arises from the district court's denial of a preliminary injunction that would have stopped the rules from going into effect on July 1, 2001. The Reid L. parties and certain teachers also tried to intervene directly in the Corey H. litigation; the Corey H. appeal (No. 01-3432) is brought by the would-be intervenors to challenge the denial of their motions to intervene. We conclude that the district court did not err either in refusing to enjoin the new rules or in denying the Reid L. parties' attempt to intervene in the Corey H. case; we therefore affirm.

I.

In order to place the present dispute in context, we must look back a quarter of a century to the way in which children with disabilities have received their education in the Chicago Public Schools. In 1975, Congress passed the Education for All Handicapped Children Act, Pub. L. 94-142 (Nov. 29, 1975), which for the first time required that children with disabilities be educated with the least restrictive accommodations possible. In 1990, Congress replaced that statute with the IDEA. In the meantime, however, Chicago had done little to change the way in which it handled the education of the affected students. Briefly put, it relied heavily on categorization of both students and teachers, and had little flexibility for cross-categorical or individualized arrangements.

On May 22, 1992, the Corey H. plaintiffs and their parents, acting on behalf of themselves and all similarly situated disabled students attending the Chicago Public Schools (CPS), filed an action in federal court against the Board of Education of the City of Chicago, the Superintendent of the Board, and the Illinois State Board of Education, claiming that the defendants had failed to provide students with disabilities who attended the CPS with a free appropriate public education in the least restrictive environment, as mandated by the IDEA, sec.sec. 1412(a)(1) and (5). The Chicago Board and the ISBE opposed class certification, but the district court disagreed and certified the Corey H. class on February 1, 1993, at the same time denying the defendants' motion to dismiss.

Four years later, on February 10, 1997, the Corey H. plaintiffs filed a second amended complaint, in which they alleged that the ISBE violated the IDEA by failing to ensure that an adequate supply of qualified special education teachers and related personnel was available and properly trained. On July 29, 1997, joint experts hired by all the parties in Corey H. issued a report. Their report concluded that the current certification system for special education teachers was in part responsible for the failures in the education of the affected children. That system employed eight disability categories: learning disabilities, social/emotional disorders, educable mentally handicapped, trainable mentally handicapped, physically handicapped, blind/visually impaired, deaf/hard of hearing, and speech/ language handicapped. The report described this system as "archaic" and asserted that "the current certification system results in categorical service delivery, limits the way staff can be used and limits involvement in general education. . . ." The experts reported also that the certification system improperly supported the segregation of students with disabilities according to their disability category and unlawfully limited the educational environment in which they were placed.

In September 1997, the Corey H. plaintiffs and the Chicago Board reached a settlement, which the district court preliminarily approved on October 23, 1997. The district court ordered the parties to provide notice of the settlement, and it then held a fairness hearing on January 16, 1998. That settlement was finally approved on that day, and its terms are not part of the present controversy.

What continued after that settlement was the question of the ISBE's liability. As to that part of the case, the Corey H. parties and the ISBE proceeded to trial on October 20, 1997. See Corey H. v. Board of Education of the City of Chicago, 995 F. Supp. 900, 903 (N.D. Ill. 1998). On February 19, 1998, the district court found in favor of the plaintiffs on the liability question, holding that the ISBE had violated the least restrictive environment mandate of the IDEA. Id. The court's findings specifically singled out the categorical system of special education teacher certification as a contributing factor to the violation. Accordingly, the court ordered the ISBE to develop rules and regulations for teacher certification that would bring the state into compliance with the statute.

Rather than appealing the liability decision, the ISBE and the plaintiff parties entered into settlement discussions with respect to remedies. Their efforts bore fruit a year later, and on March 24, 1999, the district court preliminarily approved the proposed settlement, and ordered notice and a public hearing which was scheduled for June 18, 1999. The notice was disseminated widely throughout both Chicago and the state; it elicited hundreds of written comments on the settlement. Importantly, people from throughout the State of Illinois responded, many with objections. Among the responders was the Illinois Education Association (IEA), the principal teachers' organization in Illinois, which submitted a letter through its president, Bob Haisman.

Although the Corey H. litigation concerned only the Chicago public schools, it was obvious that the teacher certification issue would affect the entire state. Illinois has long since done away with separate teacher certification standards for Chicago and the rest of the state, and thus to fix matters for Chicago inevitably meant a change in statewide standards. See 105 ILCS 5/14-9.01 ("No person shall be employed to teach any class or program authorized by this Article [Children with Disabilities] . . . unless he has had such special training as the State Board of Education may require."). At the start of the hearing, in fact, the district court advised the participants that if they had wished to have a more formal voice in the content of the settlement agreement, they should have moved earlier either to intervene or to submit a brief amicus curiae. Nevertheless, there was extensive testimony from interested parties.

On the same day that the fairness hearing was held, June 18, 1999, the district court entered an order approving the settlement between the Corey H. plaintiffs and the ISBE. The settlement agreement covered a number of topics, in cluding monitoring procedures and policies, pre-school services, funding policies, and, central for present purposes, teacher certification.

Instead of having the court draft the detailed remedial plan, the parties agreed that ISBE would have the primary responsibility to develop special education teacher certification rules, in cooperation with the CBE and the plaintiffs. Any such rules were subject to the court's retained jurisdiction to ensure that any plan eventually adopted was consistent with the permanent injunction the court had already entered against ISBE forbidding further violations of the IDEA. See Corey H., 995 F. Supp. at 918.

The ISBE set out to do just that. Even before the settlement agreement had been approved, in 1998, the ISBE began working with Illinois parents, advocates for students with disabilities, and educators, to revamp these teacher certification rules. It created two advisory panels, which conducted a dozen public statewide hearings on the issue. The panels also sent proposed certification standards to numerous outsiders, including teachers, universities, and professional associations, for their comments.

In October 1999, the panels submitted their report to the ISBE, recommending that the existing eight categories be reduced to five. Because opinions still conflicted so strongly on the best way to achieve the goals of the IDEA, however, the ISBE then convened another Blue Ribbon Task Force, which met in February 2000 to develop recommendations for certification of special education teachers. That task force suggested combining the five categorical certificates (learning disability, social/emotional disorder, educable mentally handicapped, trainable mentally handicapped, and physically handicapped) into two new certificates--one for Learning Behavior Specialist Adapted Curriculum Focus, and the other for Learning Behavior Specialist Modified Curriculum Focus. In addition to these two ...


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