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Corey H., Latricia H., andrew B., and ) Jason E., By Their Parents and Next Friends v. the Board of Education of the City of Chicago

July 19, 2012

COREY H., LATRICIA H., ANDREW B., AND ) JASON E., BY THEIR PARENTS AND NEXT FRIENDS,
SHIRLEY P., BEVERLY HL, SHARON B., AND ) STEPHEN E., ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS,
v.
THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, AND THE ILLINOIS STATE BOARD OF EDUCATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

After more than 20 years of litigation and 14 years after a court-approved Settlement Agreement between plaintiffs and defendant Board of Education of the City of Chicago ("Chicago Public Schools" or "CPS"), and within months before the termination of the Settlement Agreement, CPS has decided to waste scarce public resources by filing a near-frivolous motion under Fed. R. Civ. P. 60(b) to decertify the class and vacate the judgment to which it had agreed in 1998 and again in 2010. (Doc. 852.) This effort is both mystifying and disturbing, driven perhaps by considerations that have no place in the administration of CPS's obligations under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., ("IDEA") to educate children with disabilities in the least restrictive environment ("LRE").

BACKGROUND

A brief history of the litigation will put the current motion to vacate into perspective. The case was filed in 1992 on behalf of children in Chicago who had been identified by CPS as needing special education services because of their disabilities and who had historically been segregated by CPS based on the categories of their disabilities, in violation of the IDEA's mandate to provide a free appropriate public education in the LRE.*fn1 Of the more than 500,000 children in CPS's 553 schools in 1998, at least 10% of them (more than 50,000) had been classified by CPS as having disabilities.

The case was originally assigned to Judge Leinenweber, who had denied motions to dismiss and certified a class defined as:

[A]ll children who are enrolled in the Chicago Public Schools and who are or will be classified as having a disability by [CPS], and who are therefore subject to [CPS's] and ISBE's illegal practice and policy of failing to educate children with disabilities within the least restrictive environment appropriate to their needs. Shortly before the case was assigned to the undersigned judge in October 1994, the parties had agreed to attempt to settle based upon the advice of three jointly-retained outside experts. As the court has noted,*fn2

The joint experts conducted an extensive, scientifically sound investigation and concluded that [CPS] was seriously out of compliance with the LRE requirements of the IDEA. According to the joint experts, children with disabilities in the Chicago public schools are typically educated in overly restrictive placements. The joint experts concluded that the children's placements were based mostly on the categories or severities of their disabilities, rather than their individual needs. Both the City and the State were found to have failed to monitor or implement the principles of educating children with disabilities in the least restrictive environment, or to train teachers and other educational professionals in these principles.

Although the first effort to settle failed, CPS and plaintiffs negotiated a comprehensive Settlement Agreement*fn3 that assumed the class definition approved by Judge Leinenweber in 1993, and that was approved by this court in February 1998. (Docs. 124-127.) As discussed more fully below, the CPS Consent Decree committed CPS to institute a number of reforms and conduct a program known as the "Education Connection," under which approximately one-third of its schools would be given resources sufficient to bring them into compliance with the IDEA's LRE mandate.

The other defendant, the Illinois State Board of Education ("ISBE"), chose to continue to litigate, and after a trial on the issue of liability the court found for plaintiffs and ordered ISBE to address appropriate remedies for its violation of the IDEA. Corey H., 995 F.Supp. 900. Eventually, ISBE entered into a Settlement Agreement with plaintiffs, which this court approved in June 1999. (Docs. 161, 164.) That Settlement Agreement and consent decree did not change or dispute the same class definition as assumed in the CPS Consent Decree.

Thus, for more than 14 years this court has presided over the administration of one or both Consent Decrees governing the provision of special education services to children with disabilities who had been identified by CPS as needing these services, along with extensive monitoring by the court-approved monitor (the "Monitor")*fn4 and monitors employed by CPS and ISBE. As would be expected in a case of this importance and complexity, even after the Consent Decrees for CPS and ISBE were in place, the parties, the Monitor, and the court have engaged in extensive post-decree proceedings. These have included (but by no means were limited to) the establishment of benchmarks and LRE indicators to measure progress, improvements to the Individual Education Programs ("IEPs") required by the IDEA for special education students, the training of teachers and staff, and the efforts by CPS to meet the goals of its Education Connection schools.

During the course of the post-decree proceedings, pursuant to the terms of the parties' agreements, the court extended both the CPS and ISBE Settlement Agreements because the court had concluded on several occasions that neither CPS or the ISBE were in substantial compliance with the terms to which they had agreed. In 2010, however, the court determined that the interests of all parties and the public required that both settlements should terminate, mindful of the fact that both CPS and ISBE would be expected to continue to comply with the requirements of the IDEA, and confident that the experience of Corey H. would deter a return to the unacceptable and unlawful segregation of children with disabilities in the Chicago public schools. Accordingly, with the parties' agreement this court ordered that the Consent Decree for ISBE would terminate on August 1, 2011, and for CPS on September 1, 2012. Thereafter, the Monitor is to prepare reports on the levels of compliance (and non-compliance) by each agency, and the parties were given leave to file responses and objections to the reports, with the court to rule on any objections after briefing.*fn5 Both defendants executed agreed orders confirming these dates and their continued responsibility to comply with their Consent Decrees until those dates. (Docs. 735, 728.)

Despite having the end of this litigation firmly in sight, using the Seventh Circuit's recent decision in Jamie S. v. Milwaukee Public Schs., 668 F.3d 481 (7th Cir. 2012), as an excuse, CPS filed the instant motion on March 2, 2012, to vacate the consent decree to which it had agreed not once (in 1998) but twice (when it agreed in November 2010 to the extension of the decree to September 1, 2012).*fn6 With the briefing of the motion not scheduled to be complete until midMay 2012, and oral argument having been set for June 2012,*fn7 the court's ruling on the motion was not expected until less than two months before CPS's obligations under its Consent Decree were set to expire. Thus, after more than fourteen years of enormous effort by CPS's dedicated professionals -- teachers, principals, administrators, staff, and inside counsel -- someone at CPS or in the City of Chicago administration made a decision to disavow the progress achieved under Corey H., thus incurring substantial costs and needlessly prolonging this litigation.

As discussed below, CPS's motion to vacate is meritless for a number of reasons, and the case law on which it relies in no way justifies decertifying the class or ...


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