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Class Action Lawsuit: Judge Orders Sanctions Against
School District, Remedies for Kids

by Pamela Wright & Peter Wright

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Updates: February 3, 2012. MPS Wins Special Education Lawsuit. A federal appeals court ruled in favor of the district in the class-action lawsuit over how Milwaukee Public Schools finds and serves children with special needs. Disability advocates say former students who didn't receive appropriate services deserve attention. Read all Case Updates.

Chronology of a Class Action Lawsuit

Jamie S. v. Milwaukee Public Schools (E.D. WI, Case # 01-C-928) began in September 2001, when the plaintiffs filed a complaint against Milwaukee Public Schools (MPS) and the Wisconsin Department of Public Instruction (WDPI) for violations of the Individuals with Disabilities Education Act.

group of kidsIn November 2002, the plaintiffs filed a motion for class certification, seeking to proceed on their complaints within the context of a class action. The defendants opposed the motion. In May 2003, the court directed the plaintiffs to submit an amended class certification. In June 2003, the plaintiffs filed their amended motion for class certification.

In November 2003, the Court entered an Order that defined the class as follows:

"Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student."

The court decided to bifurcate the trial and conduct a trial for expert witnesses. During the trial in October and November 2005, the Court received evidence and heard testimony from six expert witnesses.

First Trial: Reports and Testimony from Expert Witnesses

The experts who testified for the plaintiffs included Dr. Diana Rogers Adkinson, who has expertise in programs for children with emotional disorders; Mark Mlawer, a consultant with expertise in monitoring and compliance; and Dr. James Tucker who discussed the oversight responsibility of the Department of Education.

The experts who testified for the school district and state department of education were Dr. Eric Hartwig, who specializes in discipline and behavior concerns; Dr. Elise Frattura, a consultant who worked with MPS; and Dr. Judy Schrag, an expert in IDEA compliance.

The court advised the parties of the court's initial reaction to the experts' testimony:

"Based on the experts' reports and their testimony, the court concludes that both MPS and DPI have failed to comply with their respective obligations under the IDEA during the period between September 2000 to June 2005 . . . the system in place at MPS was inadequate to satisfactorily locate and identify children with special education needs and . . . this was a result of how MPS handled students with emotional problems and suspended students."

"Similarly, DPI failed to adequately comply with its oversight responsibilities . . . it knew that MPS was not in compliance in certain areas, but it failed to impose sanctions sufficient enough to bring MPS into prompt compliance."

Second Trial: Fact Finding and Testimony

The court scheduled a trial to hear testimony by 48 witnesses and received documents that were submitted into evidence. The second trial began on April 10 and concluded on April 26, 2006.

During the second trial, the court heard testimony about many children with emotional and behavioral disorders who were suspended but not referred for an evaluation to determine if they had a disability and needed special education services.

For example, Melanie V. was a good student until fifth grade when she became depressed. As her emotional condition deteriorated, she wrote notes about killing herself. One day, she brought a razor blade to school. Did the school refer her for an evaluation? No. The principal suspended her for violating the school's weapon policy, advised her that she could not return to her school, and sent her to an alternative school.

Ryan O's behavior problems began in the sixth grade. He was admitted to a private hospital for mental health problems. Ryan was formerly an Honor Roll student. Within months, he was failing. He had suicidal thoughts. His mother met with school officials to share her concerns about her son's emotional problems. Did the school refer him for an evaluation? No. The school suspended him.

Jamie S. began having problems in kindergarten. When Jamie's mother expressed concerns about her daughter's problems, the teachers advised her to "wait and see." Jamie did not improve. Her mother repeatedly requested that Jamie be evaluated. Several years passed before the school evaluated Jamie and concluded that she had "a low IQ."

In his decision, the Judge described the plight of other children in the class. For example:

Desmond was suspended 16 times in first grade and 28 times in second grade. If he had been evaluated and found eligible for special education, the maximum suspension that could be imposed was 10 days.

Bryan E. struggled with reading and repeated fifth grade. He was often truant. Beginning in the sixth grade, he was passed from grade to grade although his report cards indicated that he was "not promoted."

Tennessee was diagnosed with schizophrenia and depression. He had behavior problems at school, was suspended, and changed schools five times. The school never referred him for an evaluation or an IEP.

Decision: Milwaukee Public Schools and Wisconsin Department of Public Instruction Violated IDEA

On September 11, 2007, the court rendered its decision in Jamie S. v. Milwaukee Public Schools.

Judge Goodstein found that between 2000 and 2005, Milwaukee Public Schools (MPS) violated the Child Find provisions in IDEA by failing to evaluate students who had suspected disabilities, failing to review all relevant data to determine the child's needs, and routinely suspending students instead of determining if they needed special education services.

Citing the 2005 Supreme Court decision in Schaeffer v. Weast, Judge Goodstein found that the Wisconsin Department of Public Instruction (DPI) violated the IDEA by failing to discharge its oversight and supervisory obligations and failing to ensure that Milwaukee Public Schools was in compliance with the IDEA.

Illogical "Stigma" of a Special Education Label

The judge found that "These children . . . exhibited behavioral and academic problems in school and often had diagnosed psychological conditions. But referrals were not made in a timely manner."

Judge Goodstein concluded that "the educators responsible for making a referral are very reluctant to do so because of what they believe it will do to the child, i.e., place an adverse label on the child . . . the extreme hesitancy of educators to pull the special education referral trigger, even if done in good faith, did a disservice to the educational and other needs of the child."

"The stigma argument is illogical because a worse stigma is going to attach to a child who is not referred and ends up being constantly disciplined, suspended, or too old for the grade he or she is in . . . too often the parents default to the subjective judgment of the educators."

Milwaukee's Failure to Comply with Child Find Violates the IDEA

When the defendants characterized Child Find as a "limited component" of IDEA, the Judge rejected this argument in finding that: "Child Find . . . functions as one of the most important elements . . . If a child with a disability is not found, that child will not receive any special education."

"The Court concludes that . . . the Milwaukee Public Schools violated the Individuals with Disabilities Education Act and related state statutes. These violations consisted of the failure of MPS to comply with the provisions of the IDEA known as Child Find . . . MPS failed to adequately identify, locate and evaluate children with disabilities in need of special education and related services . . ."

Department of Public Instruction Failure to Enforce Violates the IDEA

The Judge found that the Wisconsin Department of Public Instruction violated the IDEA by failing to discharge its oversight and supervisory obligations and ensure the MPS was in compliance with the IDEA.

In his decision, Judge Goldstein posed this question: Did the DPI do all that was reasonably required to ensure that Milwaukee Public Schools complied with the law?

"It appears to this court that the underlying problem was the failure of DPI to put any teeth into its bite. DPI required new procedures, but failed to impose appropriate sanctions when the acronym programs did not produce satisfactory compliance."

Remedies for Children and Sanctions Against School District

In his decision, Judge Goodstein Judge wrote, ". . . before judgment can be entered, the court must address the issue of what sanctions/remedies are appropriate . . . since these students may have suffered educationally as a result of Child Find failures, are they entitled to some form of compensatory education?"

The judge also discussed the need for sanctions to bring MPS into compliance with the IDEA. To avoid further litigation, he asked the parties to attempt to resolve the case because "a mutually agreeable solution would be more satisfactory than a court-imposed resolution. Also, it would have the effect of terminating the litigation, except for a possible supervisory role by the court. An agreement between the parties would expedite remedies and curtail continuing litigation costs . . ."

Judge Goodstein scheduled a conference with the parties on September 27, 2007 to discuss sanctions and remedies.

In Summation

All schools have an affirmative duty to locate, identify and provide services to children who may have disabilities.

If school district employees know or had reason to suspect that the child had a disability, or they should have known, then these employees have an affirmative duty to act on the child's behalf. If they fail to do so, they default on their obligation to identify, locate and evaluate children with disabilities who need individualized special education programs.

If a school district fails to comply with the Child Find mandate, several remedies exist. In exceptional situations, the child may be entitled to monetary damages, as in W.B. v. Matula.

In Jamie S., the court is considering the remedy of compensatory education for a large class of students. Compensatory education may provide educational services that continue beyond the child's twenty-second birthday.

Case Update

Updates: September 7, 2010. MPS, Group Argue Sides of Special-education Suit. Appeals court could take months to issue decision. The latest chapter in a 9-year-old class-action lawsuit regarding special-education services in Milwaukee Public Schools unfolded Tuesday in the 7th Circuit U.S. Court of Appeals, as lawyers for the district and Disability Rights Wisconsin argued their positions before a three-judge panel.

September 7, 2010. MPS, Group Argue Sides of Special-education Suit. Appeals court could take months to issue decision. The latest chapter in a 9-year-old class-action lawsuit regarding special-education services in Milwaukee Public Schools unfolded in the 7th Circuit U.S. Court of Appeals, as lawyers for the district and Disability Rights Wisconsin argued their positions before a three-judge panel.

June 21, 2009. Judge orders search for MPS students in need of special education. A federal judge has ordered Milwaukee Public Schools to launch a wide search for students who didn't get special education services between 2000 and 2005. Someone from outside the system will monitor work on providing education services to compensate the students or former students involved because MPS has not shown it will adequately remedy its problems in special education on its own. (Milwaukee Journal Sentinel) Pdf format l Word format

August 19, 2008. MPS ordered to pay $450,000 in legal fees. Milwaukee Public Schools must pay just more than $450,000 to the legal staff representing plaintiffs in a class-action suit over how the district serves students with special needs, a federal judge has ordered. (Milwaukee Journal Sentinel) Pdf format l Word format

August 3, 2008. Suspend Fewer; MPS Urged. Reports rips discipline tactics.A team of national experts has urged a major overhaul in the way MPS handles behavior issues in schools, saying MPS does not do enough to deal with problems short of suspending students and may have the highest suspension rate of any urban school system in America. In the 2007-'08 school year, 26.4% of students were suspended at least once, many of them multiple times. The total number of suspensions - 86,675 - was just short of the number of students in MPS. (Milwaukee Journal Sentinel) Pdf format l Word format

July 6, 2008. Money left on table. Milwaukee Public Schools snares only a small portion of available state aid for its high-needs special education students. The district got funds for only 11 students. Milwaukee Public Schools must do a better job of acquiring state funding for its severely disabled children. MPS received only $40,182 of the $5.4 million pool distributed statewide for students with severe special needs. (Milwaukee Journal Sentinel) Editorial in pdf format l Word format

June 8, 2008. MPS Ordered to Do More for Special Needs. A federal judge has ruled full-force in favor of potentially historic changes that will require Milwaukee Public Schools to provide more services sooner to thousands of struggling students. Judge Goodstein's decision is the culmination of a lawsuit filed in 2001 that claimed that the rights of special education students in MPS had been violated because they had not received services to which they were entitled. (Milwaukee Journal Sentinel) Article in pdf format l Word format

Read the Court's Order granting preliminary approval of proposed class settlement.

March 14, 2008. MPS Rejects Deal on Lawsuit. Private negotiations to settle a lawsuit over how Milwaukee Public Schools handles special education students broke into the open Thursday when MPS rejected a proposal that could extend such services to thousands of students who are suspended from school frequently or retained. (Milwaukee Journal Sentinel) Article in pdf format l Word format

Text of the Settlement Agreement l Letter from MPS rejecting agreement

January 5, 2008. Suspension Rates Deemed Too High. The Superintendent of Milwaukee Public Schools says, "We may have the highest suspension rates in the country ... The percentage of students [enrolled in school] with disabilities, including physical, emotional and learning issues, continues to rise."

MPS Summary of District Report Card l MPS District Report Card Data

September 12, 2007. MPS Resists Special Ed Ruling. Milwaukee Public Schools officials expressed confidence Wednesday that "improvements" they made in determining whether children need special education help will convince a federal judge that he does not need to force the school system to do more. (Milwaukee Journal Sentinel) Article in pdf format l Word format

Wrightslaw Contacts Milwaukee Public Schools About Broken Link to Legal Notice, Website Taken Down

September 26, 2007, 9:15 am.
Milwaukee Public Schools is required to provide Notice of this class action lawsuit to parents and guardians of prospective members of the class. I visited the Milwaukee Public Schools website which had a link to Legal Notice - Class Action Lawsuit - Special Education. The link is broken. Several other links on the home page were broken too.

We sent an email to the webmaster of the Milwaukee Public Schools about the broken links, that people are unable to access this information, and asked them to advise us when the links are fixed.

September 26, 2007. 3:56 pm. Email from Wrightslaw to Milwaukee Public Schools. "This morning, when I typed "Milwaukee Public Schools" into the search box on Google, I was directed to the Milwaukee Public Schools Site at http://cms.milwaukee.k12.wi.us/
The page had several broken links, including the one to
Legal Notice - Class Action Lawsuit - Special Education.

"I sent an email to the webmaster, advising him/her of the broken links and that other people will use the same strategy when they look for information about the class action lawsuit. They will not find the information they seek. I finally discovered the site you listed in your email by clicking a link to
"Professional Support Portal."

"The page I visited this morning has been taken down or inactivated. When people click that link, they are now redirected to the Portal site. I found the notices you mention at the very bottom of the Welcome page on the right corner. I doubt many people will see these notices because they do not appear in the first screen."

Related Articles and Cases

The Child Find Mandate: What Does it Mean to You?

Appeals Court Rules that School Must Offer an IEP to a Child with Disability

Cases

Jamie S. v. Milwaukee Public Schools, (E.D. WI 2007, Case # 01-C-928)

Knable v. Bexley
, 238 F.3d 755 (6th Cir. 2001)

W.B. v. Matula, 63 F.3d. 484 (3rd Cir. 1995)

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Created: 09/27/07

Revised: 02/09/12




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