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E,B" by and through his next friend, Lula Henry, )

on behalf of himself and all similarly situated

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students,

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Plaintiff,

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v.

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MISSISSIPPI DEPARTMENT OF EDUCATION, )

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Defendant. )

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COMPLAINT

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Case No, ~: fa cV11~ lJPJ-ftLB

1, This is a class action lawsuit filed on behalf of children with disabilities in the

Jackson Public School District ("JPS") to hold the Mississippi Department of Education

("MDE") accOlmtable for ensuring that they receive the free appropriate public education they

are entitled to receive under the Individuals with Disabilities Education Improvement Act of

2004 ("IDEA"), 20 U.S.C, § 1400 et seq. For years, students with disabilities throughout JPS

have been denied the educational and supportive services they need to achieve academically, and

have been removed from their schools and forced into substandard segregated settings with little

to no appropriate academic programming and related services. In September 2010, Plaintiff and

a class of similarly situated JPS students filed a systemic state administrative complaint against

IPS which alerted MDE to numerous systemic violations of the IDEA, and requested MDE's

assistance in investigating and ensuring correction of both the individual and systemic violations

that prevented them from obtaining an appropriate education from JPS, Although MDE

substantiated each and everyone of the violations detailed in Plaintiffs administrative complaint, JPS has continued to violate the rights of the Plaintiff and the class of similarly situated students.
2. Over the past twenty-two months, JPS has sought only to evade responsibility for these violations, and has openly and defiantly refused to provide the Plaintiff and similarly situated students with the appropriate services they are entitled to receive under the IDEA. Sadly, despite having the authority and obligation lmder federal and state law to hold JPS accountable for these violations and ensure the provision of critical special education and related services to children with disabilities, MDE has exhibited complete indifference to Plaintiffs pleas for relief, and has failed to take appropriate action to compel JPS to correct the individual and systemic violations of the IDEA that harm thousands of JPS's most vulnerable students.
3. JPS's systemic failure to comply with the IDEA greatly diminishes the likelihood that thousands of JPS students will realize their full academic potential and achieve a successful transition from high school. The devastating impact of JPS's unlawful conduct is borne out in the District's dismal graduation rate for students with disabilities: less than ten percent of students with disabilities graduate from JPS. During the 2010-2011 school year, ouly 9% of eighth grade students with disabilities scored proficient or above in state-wide science testing, while only 4% of eighth grade students with disabilities were considered proficient in language arts as measured on the Mississippi Curriculum Test. Plaintiff and the proposed class are merely seeking to claim their rightfi.Jl opportunity to make meaningful behavioral and academic progress to achieve and succeed academically, and cannot allow more time to pass for JPS to continue to treat their education as expendable. The consequences of continued noncompliance by JPS, and MDE's refusal to ensure compliance, are serious and profound for Plaintiff and the class.
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4. In 1975, Congress enacted what is now called the IDEA to end the longstanding failure of schools to meet the educational needs of students with disabilities. The statute is aimed at cOlTecting the historic exclusion of students with disabilities fi'om the classroom, and ensuring the provision of an appropriate education to all studeEts with disabilities. To achieve this goal, state education agencies such as MDE are required to ensure that local school districts have policies and procedures in place to ensure that students with disabilities receive a free appropriate public education ("FAPE"). This entails providing each child with a disability with an individualized education program ("IEP") that is reasonably calculated to confer meaningful educational benefit. IEPs must also include the provision of any related services, such as counseling and speech therapy, necessary to ensure that a child can make academic and behavioral progress; and must also provide for specific behavioral interventions when it is determined that a child's behavior is interfering with his/her ability to make academic and/or behavioral progress. For some students, IEPs must provide for transition services to facilitate a successful transition from high school, and for extended school year ("ESY") services over the summer months. The IDEA also mandates that students be served alongside their typical peers in the least restrictive environment ("LRE"), and includes nmnerous procedural safeguards to protect children from school discipline practices that punish them for behaviors related to their disabilities.
5. The Mississippi Department of Education bears the ultimate responsibility for ensuring that local school districts such as JPS comply with the IDEA and for ensuring that all students with disabilities, regardless of the nature or severity of the disability, receive FAPE in the least restrictive environment. Despite this clear federal mandate, the Defendant has utterly failed Plaintiff and similarly situated students with disabilities in JPS. Nearly two years ago, in
3

response to a class-wide state administrative complaint filed by the Plaintiff and a class of similarly situated shldents, MDE documented a host of systemic IDEA violations within JPS that resulted in the denial of FAPE to potentially tbousands of shldents. Since that time, MDE has failed to properly exercise its general supervisory responsibilities under IDEA, including its monitoring and enforcement authority, and has thereby permitted JPS to perpetuate the same denials ofFAPE, further squaudering the valuable and limited time that Shldents witb disabilities have to obtain a free appropriate public education.
6. Plaintiff E.H. is a JPS student with a disability who has been denied the right to receive a free appropriate public education and who has experienced excessive disciplinary removals from school. On behalf of himself aud tbe same class of similarly situated students identified in the 2010 state administrative complaint, Plaintiff seeks prospective injunctive relief ordering Defendauts to comply witb tbeir federal legal maudate to monitor JPS aud enforce compliance witb the IDEA so tbat Plaintiff and the proposed class may receive the free appropriate public education they are entitled to receive by law. Declaratory aud injlllctive relief is necessary to ensure enforcement of Plaintiffs rights under the IDEA.
JURISDICTION 7. This action arises under the Individuals with Disabilities Education Improvement Act of2004, 20 U.S.C. § 1400 et seq. Jurisdiction is conferred upon this Court by 20 U.S.C. § 1415(i)(2)-(3)(A) which provides the district courts of the United States with jurisdiction over actions brought lmder the IDEA without regard to the amount in controversy, and 28 U.S.C. § 1331, based upon the federal questions raised herein. 8. Plaintiff and the class he seeks to represent have no adequate remedy at law and have suffered and will continue to suffer irreparable harm unless the Defendaut, including its
4

agents, representatives and/or employees, is pennanently enjoined from continuing its unlawful practices. This Court is authorized to grant declaratory and injtmctive relief to Plaintiff and the proposed class under 28 U.S.C. § 2201 and § 2202 and Rule 65 of the Federal Rules of Civil Procedure.
VENUE
9. Venue is proper in this Court under 28 U.S.C. § 1391 (b)(2) because a "substantial part of the events or omissions giving rise to the claim occurred" in this district.
PARTIES 10. Plaintiff E.H. is a sixteen year old JPS student who will emoll in the tenth grade in August 2012. E.H. initially emolled in JPS in the first grade, but was then home-schooled for part of the first grade and the entire second grade. He returned to JPS in August 2004 to begin the third grade. E.H. has been identified under IDEA as a student with a specific learning disability in basic reading and reading comprehension. He brings this action by and through his mother and next friend, Lula Hemy, in accordance with Federal Rule of Civil Procedure 17(c). 11. Defendant Mississippi Department of Education is responsible for administering all public education services in Mississippi. Miss. Code AIm. § 37-3-5. MDE is the federally designated state educational agency as that te= is defined in 20 U.S.C. § 1401(32). As such, MDE is also responsible for administering a program of special education services for children with disabilities throughout Mississippi that is designed to enable children with disabilities to reach their appropriate and tmiquely designed goals for success, Miss. Code AIm. § 37-23-5, and for establishing regulations for school districts throughout Mississippi to operate their programs in compliance with the IDEA. Miss. Code Ann. § 37-23-135(1). Pursuant to federal law, MDE has the ultimate responsibility to ensure that local school districts implement
5

an.d comply with the IDEA and that all eligible children receive a free appropriate public education. 20 U.S.C. § 1412(a)(11)(A).
CLASS ACTION ALLEGATIONS 12. Plaintiff brings this action on behalf of himself and all those similarly situated pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 13. The class is defined as follows: All IPS students with disabilities who were included as class members in the September 201 0 IDEA administrative complaint styled as A.M v. Jackson Public Schools, or who would currently meet the ·definition of a class member as established in that administrative matter, which consists of IDEA eligible students who manifested hehavior issues and were subjected to three or more disciplinary removals l from IPS and/or placement in an alternative school setting in IPS during the course of a single school year. 14. The size of this class is so lllunerous that joinder of all members is impracticable. During the 2010-2011 school year, there were over 3,000 students with disabilities receiving special education services in IPS. Hundreds of these students were subjected to three or more disciplinary removals involving out-of-school suspension ("OSS"), in-school suspension ("ISS"), undocumented and illegal school removals, andlor placement in IPS's alternative school. Since 2010-2011 IPS has suspended shldents with disabilities at even higher rates, adding more students to the proposed class. 15. There are questions of law and fact common to the class, such as whether the Defendant's failure to properly execute its general supervisory responsibilities, including its monitoring and enforcement obligations, has violated Plaintiffs right under the IDEA to receive a free appropriate public education in accordance with the requirements of the IDEA.
1 Disciplinary removals are defined as in-school suspension, out-of-school suspension, and undocumented illegal removals from school.
6

16. The claims of the Plaintiff are typical of the claims of the class. As a result of Defendant's unlawful policies and practices, Plaintiff and the class he seeks to represent have been denied the benefits of a program of special education and related services as required by the IDEA.
17. The Plaintiff will fairly and adequately represent the interests of the class because he seeks relief on behalf of the class as a whole and has no interests antagonistic to other members of the class. The Plaintiff possesses a strong personal interest in the subject matter of the lawsuit, and is represented by experienced counsel with expertise in special education and disability law, class action litigation, and civil rights proceedings.
18. The Defendant has acted and refused to act on grolmds generally applicable to the class in that Defendant's lmlawful failure to properly exercise its general supervisory responsibilities, including its monitoring and enforcement obligations, over JPS has affected all class members by denying them the special education and related services guaranteed to them by the IDEA. Accordingly, final injunctive and declaratory relief is appropriate for the class as a whole.
STATUTORY FRAMEWORK 19. The IDEA requires that a state provide a free appropriate public education to all students with disabilities, including children with disabilities who have been suspended or expelled from school. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101. The IDEA establishes a system of procedural and substantive requirements to which the state educational agency ("SEA") must adhere to ensure that each child with a disability receives a free appropriate public education. MDE is the SEA for the State of Mississippi.
7

20. MDE must ensure that all eligible students receive an IEP that is developed, reviewed 811d revised to confer meaningful educational benefit. 20 U.S.C. § 1412(a)(4); 20 U.S.C. § 1414(d). The IEP must include, among other things, a statement of the child's present levels of academic achievement and functional perform81lce, a statement of measurable amlUal goals, a statement of the special education 81ld related services, and supplementary aids and services to be provided to the child to help himlher participate in the general curriculum 81ld make progress in the general curriculum and toward achieving his/her annual goals. 20 U.S.C. § 1414(d)(1)(A)(i). The child's IEP team is required to review the child's IEP periodically to determine whether the annual goals for the child are achieved and revise the IEP as appropriate to address 81ly lack of progress toward arrnual goals 81ld in the general curriculum. 20 U.S.C. § 1414(d)(4).
21. MDE is obligated to ensure that children with disabilities are provided with the necessary supplementary aids 81ld services to allow them to be educated in their LRE, me81ling that children with disabilities should receive services in a setting where they are able to interact with nondisabled children to the maximum extent appropriate. 20 U.S.C. § 1412(a)(5)(A).
22. MDE must ensure that IEPs include consideration of positive behavioral interventions 81ld supports for students who exhibit behavior problems that impede their learning or that of others. 20 U.S.C. § 1414(d)(3). MDE must also ensure that children who are subject to disciplinary removals that amount to more th81l ten days for behavior that is a manifestation of their disability receive a functional behavioral assessment ("FBA"), behavior intervention pl81l ("BIP") 81ld modifications to address the behavior violation so that it does not recur. 20 U.S.C. § 141S(k)(1)(D)(ii).
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23, MDE must ensure that for children 14 years of age and older, their IEP includes a transition plan that identifies the child's post-secondary goals and identifies the services needed to assist the child in reaching those goals. 34 C.F.R. § 300,320(b); State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004, State Board Policy 7219, § 300.320(b).
24, MDE must ensure that ESY services are available and provided to those children deemed eligible for ESY services. 34 C.F.R. § 300.106; State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004, State Board Policy 7219, § 300.106; State Board of Education Policy 7212.
25. MDE must ensure that children with disabilities are afforded the procedural safeguards described by the IDEA when disciplinary action is contemplated. Prior to being subject to a disciplinary removal lasting more than ten days, a district must convene a manifestation determination review ("MDR") to review all relevant infonnation in the student's file, including the IEP, teacher observations and information provided by the parent!guardian to detennine if the conduct in question was caused by, or had a direct and substantial relationship to the child's disability or if the conduct in question was the direct result of the school's failure to implement the IEP. If it is determined that the behavior is a result of the school's failure to implement the IEP, immediate action must be taken to remedy any deficiencies with the school's implementation of the IEP. 20 U.S.C. § 1415(k)(1)(E); 34 C.F,R. § 300.530(e).
26, The IDEA also requires the state to examine data from local school districts to determine if significant discrepancies exist in the rates of suspensions and expulsions of children with disabilities. If discrepancies exist, the state must review and revise its policies, procedures and practices relating to the development of IEPs, the use of positive behavioral interventions
9

and supports, and procedural safeguards to ensure that the state is in compliance with the IDEA. 20 U.S.C. § 1412(a)(22); 34 C.F.R. § 300.170.
27. As the SEA, MDE is ultimately responsible for ensuring that JPS follows the mandates of the IDEA and provides all eligible students with FAPE. 20 U.S.C. § 1412(a)(I), (11 )(A). MDE is responsible for implementing policies and procedures to ensure that local educational agencies ("LEA") are monitored for implementation and compliance with the IDEA. When the SEA identifies areas of noncompliance, it must ensure that noncompliance is corrected as soon as possible, and in no case later than one year after the State's identification of noncompliance. 34 C.F.R. § 300.600(e). The SEA is also responsible for providing FAPE directly to students when an LEA is unable to establish and maintain programs of FAPE in compliance with the IDEA. 20 U.S.C. § 1413(g); 34 C.F.R. § 300.227(a)(I)(ii).
28. The SEA must also establish procedures for individuals to file complaints with the SEA regarding individual and systemic violations of the IDEA by an LEA. The SEA is required to investigate these complaints, and, if noncompliance is fOlmd, must ensure that appropriate corrective action is talcen within one year to redress both individual and systemic IDEA violations and ensure that appropriate services are provided to children with disabilities thereafter. 34 C.F.R. §§ 300.151-153, § 600(e). SYSTEMIC ALLEGATIONS Al'lD EXHAUSTION OF ADMINISTRATIVE REMEDIES
29. In September 2010, Plaintiff filed a state administrative complaint with MDE against JPS pursuant to 34 C.F.R. §§ 300.151-153. The complaint alleged several systemic IDEA violations by JPS involving the provision of FAPE to students with disabilities who had been subjected to three or more disciplinary removals and/or placement in JPS's alternative
2 The September 8, 2010 administrative complaint included several other named petitioners who have moved, left the District or are not otherwise named in this Complaint.
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schoo!. MDE investigated Plaintiffs allegations as a systemic state administrative complaint on behalf of the named petitioners3 and all other similarly situated special education students who manifest behavioral issues and are subject to three or more disciplinary removals ii-om school and/or placement in an alternative school setting. MDE issued its findings and decision on November 22,2010, substantiating all of the individual and systemic allegations contained in the administrative complaint. More than one year has elapsed, and MDE has failed to ensure correction of the individual and systemic violations. As a result of the systemic claims raised in
<-
the original state administrative complaint and in this Complaint, Plaintiff is not required to exhaust administrative remedies available under the IDEA. Given that the administrative system cannot provide the Plaintiff-class with the requested class-wide, systemic declaratory and injunctive relief, exhaustion would be futile.
STATEMENT OF FACTS 30. On September 8, 2010, Plaintiff E.H.filed a systemic administrative complaint with MDE on behalf of himself and a class of similarly situated IPS students with disabilities who had experienced three or more disciplinary removals andlor placement in an alternative school setting. Plaintiff and the other petitioners filed the complaint to address individual and systemic violations of the IDEA by IPS which resulted in the denial ofFAPE to the Plaintiff, the petitioners and all similarly situated shldents. The administrative complaint alleged the following individual and systemic violations ofthe IDEA by IPS:
a) Denial of FAPE by failing to provide petitioners and similarly situated students with appropriate levels of related services;
3 Use of the term "petitioners" throughout this Complaint is intended to refe:: to the individual students representing a class of IDEA eligible students with behavioral issues who were subjected to three or more disciplinary removals and/or placement in an alternative school setting in JPS who filed the original administrative complaint on September 8,2010.
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b) Denial ofFAPE by failing to comply with the IDEA's discipline regulations with regard to FBAs, BIPs, and MDRs;
c) Denial of FAPE by failing to confer meaningful educational benefit; d) Denial of FAPE by failing to comply with the substantive and procedural
requirements governing the development and implementation ofIEPs; e) Denial of FAPE by failing to provide educational services for petitioners and
similarly situated students in the least restrictive environment;
r
,
f) Denial of FAPE by failing to provide petitioners and similarly situated students with necessary and appropriate transition services;
g) Denial of FAPE by failing to provide petitioners and similarly situated students with necessary and appropriate ESY services.
Plaintiff, the other petitioners and a class of similarly situated students alleged that these violations resulted in a cycle of unlawful removals from the classroom environment and punishment for behaviors related to their disabilities, and deprived them of the ability to make positive academic gains. Plaintiff, other petitioners and the class sought widespread systemic reliefto reform the manner in which JPS administers its special education program.
31. As required by federal law, MDE investigated these allegations and issued a report containing its findings and decision on November 22, 2010. MDE's investigation confirmed that JPS had violated the rights of E.H. and the other named petitioners. MDE's investigation also confirmed that the IDEA violations were systemic throughout JPS and resulted in the denial of FAPE to the named petitioners and all similarly situated students. MDE specifically noted the following individual and systemic violations of the IDEA:
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a) JPS denied FAPE to petitioners and all similarly situated students by failing to

provide them with an appropriate level of related services to address their

behavioral needs and goals. Despite documented behavior concerns, JPS failed to

provide many students with any related services.

b) JPS denied FAPE to petitioners and similarly situated students by conducting

inadequate FBAs and formulating inappropriate BIPs. MDE further documented

that JPS failed to implement BIPs, and students did not obtain any benefit from

~­

the BIPs created by JPS.

i

I

c) JPS denied FAPE to petitioners and similarly sihJated students by failing to

meaningfhlly update and revise IEPs. JPS failed to gather, summarize and review

meaningful data necessary to monitor behavioral progress. Consequently,

students obtained absolutely no benefit from their IEPs and BIPs and made no

behavioral progress, amotmting to a denial ofFAPE.

d) JPS violated the procedural rights of petitioners and similarly situated shldents by

failing to conduct MDRs in conformance with the IDEA procedural safeguards,

and consequently subjected petitioners and similarly situated students to unlawful

disciplinary action and restrictive placements.

e) JPS denied FAPE to petitioners and similarly sihJated students by failing to

collect information and data on student academic and behavioral performance,

resulting in petitioners and similarly situated students failing to obtain any

meaningfi.Ji educational benefit from their IEPs.

f) JPS denied FAPE to petitioners and similarly sihlated students by failing to

comply with the requirements for developing and implementing IEPs. In

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particular, JPS failed to properly align students' academic goals and objectives with their actual levels of performance; failed to consider positive behavioral interventions and supports to improve behavior; failed to properly review student performance; and failed to revise IEPs as needed to address a lack of academic or behavioral progress. g) JPS denied FAPE to petitioners and similarly situated students by failing to provide them with the necessary supports and related services to serve them in their LRE. MDE found that this created a disparity in some students being placed at the JPS alternative school or other restrictive settings. h) JPS denied FAPE to petitioners and similarly situated students by failing to provide them with adequate and meaningful transition planning and supports. i) JPS denied FAPE to petitioners and similarly situated students by failing to appropriately evaluate them to determine the need for ESY services and by failing to provide appropriate ESY services when needed. 32. MDE ordered JPS to submit to MDE within 30 days an improvement plan outlining the actions JPS would implement to correct the systemic violations of the IDEA. MDE also ordered JPS to tal<e corrective action with regard to the named petitioners and provide them with compensatory services. In order to facilitate JPS's development of an appropriate corrective action plan ("CAP") and provision of compensatory services, MDE appointed a technical advisor to assist JPS with developing and implementing the corrective action plan. 33. Despite MDE's directive that JPS consult with the technical advisor in developing a corrective action plan and providing compensatory services, JPS refused to collaborate with the
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technical advisor and deliberately excluded the technical advisor from implementation of most of the proposed corrective actions in the CAP it submitted to MDE in late December 2010.
34. JPS's proposed corrective action plan suffered from several glaring deficiencies, among them a failure to acknowledge MDE's findings; a failure to address several of MDE's findings and required corrective actions; a failure to acknowledge that MDE's findings substantiated systemic, and not just individual, violations of the IDEA; and an outright refusal to follow the corrective actions prescribed by MDE.
~-
35. Despite having the obligation and authority to do so under state and federal law, MDE took no action against JPS for submitting a proposed CAP that manifested JPS's open defiance and refusal to comply with federal law.
36. MDE took no action to ensure JPS produced a Ci\P that ensured the provision of FAPE to E.H. and the class of similarly situated students.
37. Upon information and belief, MDE submitted JPS's proposed CAP to the technical advisor for review sometime in January or Febmary 2011. Upon information and belief, the technical advisor rejected JPS's CAP and provided MDE with substantial written revisions to address the deficiencies in JPS's CAP. MDE declined to adopt the technical advisor's recommendations and instead allowed JPS to proceed with implementing a CAP that was not actually capable of resolving the systemic IDEA violations that MDE had identified.
38. Despite MDE's direction to JPS to work with the technical advisor, JPS refused to do so, going so far as to deny the technical advisor access to records and school personnel and asking the technical advisor to leave JPS's premises. MDE acquiesced to this refusal and took no further action against JPS to remedy the noncompliance, despite having the authority and
15

obligation to do so lmder state and federal law. MDE took no action to ensure the provision of FAPE to E.H., the named petitioners or any other similarly situated students during this time.
39. Instead of taking immediate action to remedy the deficiencies in JPS's submitted CAP, MDE waited unti1late May 2011 - six months after it issued its findings - to request that the technical advisor conduct a targeted review of the original named petitioners to assess whether JPS had corrected the individual IDEA violations. The technical advisor issued a 151 page report in July 2011 detailing munerous ongoing IDEA violations for all of the named petitioners, including E.H., in the areas of FBAs, BIPs, related services, educational benefit and transition services.
40. In August 2011 - nearly one year after receiving the original administrative complaint - MDE ordered JPS to revise its deficient CAP. JPS submitted a revised CAP on September 9, 2011, and again in defiance ofMDE, excluded the technical advisor from all of its corrective action activities. Despite having the authority and obligation to do so under state and federal law, MDE failed to talee any action to compel JPS to work with the technical advisor and correct the individual and systemic violations of the IDEA. MDE took no action to ensure the provision ofFAPE to E.H., the named petitioners and similarly situated students during this time.
41. On September 26, 2011, MDE submitted a written review of JPS's revised CAP that detailed numerous deficiencies with JPS's CAP and ordered JPS to collaborate extensively with the technical advisor to ensure correction of the individual and systemic violations of the IDEA. MDE specifically noted JPS's resistance to work with the technical advisor over the past several months. Nonetheless, JPS continued to refuse to work with the technical advisor throughout the fall of 2011 and thereby refused to implement MDE's revised CAP. Despite having the authority and obligation under state and federal law to do so, MDE failed to take any
16

action to compel JPS to implement an appropriate CAP and COlTect the individual and systemic violations ofthe IDEA. MDE took no action to ensure the provision ofFAPE to E.H., the named petitioners and similarly situated students during this time.
42. In mid-November 2011, MDE conducted a follow-up monitoring visit to detennine whether JPS had taken sufficient corrective action to remedy the individual and systemic IDEA violations it had identified in its November 22, 201 0 investigation report and findings. MDE issued a follow-up monitoring evaluation report from this new visit on January 13,2012. The report detailed the same individual and systemic violations for virtually all of the original named petitioners still attending school in JPS, including E.H. The named petitioners' IEPs continued to suffer from the same deficiencies identified by MDE over one year earlier. In over one year, JPS had failed to correct individual violations, and had failed to make any systemic improvements to cure the District's systemic violations of the IDEA. Despite having the authority and obligation under state and federal law to do so, MDE failed to take any action to compel JPS to correct the individual and systemic violations of the IDEA. MDE took no action to ensure the provision of FAPE to E.H., the named petitioners and similarly situated students during this time.
43. Following MDE's issuance of its January 13, 2012 follow-up report, Plaintiffs counsel also informed MDE of ongoing individual and systemic violations within JPS, and sought MDE's assistance in correcting these violations. MDE refused to take any action to remedy the individual and systemic violations. For instance, MDE agreed to attend the IEP meetings for some of the petitioners from the state administrative complaint, including Plaintiff E.H. However, MDE refused to participate in these meetings, and remained silent, even while JPS staff made decisions and recommendations that clearly violated federal law. Even more
17

confounding, MDE invited the technical advisor to attend some of these IEP meetings, but instmcted the technical advisor to remain silent throughout the IEP meeting and refrain from offering recommendations and technical advice. MDE further declined to order JPS officials to adopt specific recommendations from the technical advisor to remedy the denial of FAPE to individual students. MDE limited its enforcement action to referring JPS to MDE's Office of Accreditation to initiate proceedings to strip JPS of its accreditation - an action that would do absolutely nothing to ensure the provision of FAPE to E.H., the named petitioners and other similarly situated students.
44. MDE conducted another follow-up monitoring visit on April 18-20, 2012 and issued a report on May 15, 2012. This report documented that JPS had made some minor effort to develop policies and procedures and provide training to staff. However, a review of student files indicated that the District had failed to implement its newly promulgated policies and procedures, and as a result, the District still had not resolved the original findings of individual and systemic noncompliance dating back to November 2010. MDE noted that the specific areas covered by JPS's new policy development and training were "lacking or nonexistent" in the student files reviewed. MDE noted that this was a "clear indication" that JPS's ongoing noncompliance is attributable to a complete failure on the part of JPS to implement its own policies and procedures. MDE's report also found that JPS was suspending students with disabilities at increasingly disproportionate rates and that the disproportionality was actually greater than it was in 2010 when Plaintiff filed the underlying administrative complaint.
45. On April 26 and May 21, 2012, the Office of Accreditation held a hearing to decide whether JPS should lose its accreditation. At the conclusion of the hearing, the Office of Accreditation decided to give JPS lfitil November 1, 2012 to come into compliance with the
18

IDEA. The Office, which is housed within MDE, made this determination despite testimony from the technical advisor that JPS's violations are so systemic and JPS is so far behind in implementing appropriate corrective action that it will take JPS several years to obtain fhll compliance.
46. MDE's monitoring and enforcement continues to be insufficient and inadequate. Although MDE documented in its May 15, 2012 report that JPS had failed to implement any policies and procedures to correct its individual and systemic IDEA violations, and despite JPS's failure to develop and implement an adequate CAP for nearly two years, MDE's corrective action at this point is limited to ordering JPS to produce yet another CAP, rather than ordering JPS to implement an actual plan created in collaboration with the technical advisor. JPS has until July 15,2012 to produce this new CAP.
47. MDE has also acquiesced to JPS's resistance to work with the technical advisor, and has allowed the technical advisor's role and authority to remain ambiguous, and thus ineffective. Upon information and belief, JPS is under no requirement from MDE to adopt the recommendations of the technical advisor, and is free to continue to disregard the technical advisor's recommendations, just as it has done for the past two years.
48. Since the Office of Accreditation issued its decision on or about May 21, 2012, JPS has undertaken several purported corrective actions that will actually exacerbate JPS' s systemic violations under the IDEA. For instance, despite repeated admonishment from MDE that removing students with disabilities from the classroom and placing them in restrictive segregated environments violates the LRE mandate of the IDEA, in its June 4, 2012 Weekly Report to MDE, JPS proposed creating two new segregated settings for students with disabilities for the next school year. One such segregated setting is a day treatment program, isolated from
19

other mainstream schools within JPS, that would serve only students with emotional disabilities. Students in this day treatment program would not even have the benefit of receiving live instmction and would not have a real, much less a highly qualified, teacher in their classroom. Instead, JPS intends to provide some of its most academically vulnerable students with instmction via video streaming from other classrooms. In its June 4, 2012 Weekly Report, the District also proposed creating a separate alternative school program to serve only students with disabilities.
-,
49. Further, JPS informed MDE in its June 4, 2012 Weekly Report that it plans to place full time psychologists and behavioral support specialists in the alternative school and day treatment program to provide students with disabilities with more intensive behavioral interventions. However, JPS has not taken any action to make these vital services and the increased staffing available to students in regular education classrooms and regular neighborhood school settings to prevent their removal to more restrictive settings. Rather than implementing measures to improve student behavior and reduce the need for segregated placements, JPS has merely expanded the array of segregated settings it may use, and has thus further incentivized the exclusion of students with disabilities from the classroom.
50. MDE's failure to hold JPS accountable for systemic violations of the IDEA is exacerbated by deficiencies in MDE's monitoring. Despite finding these violations to be systemic, MDE has limited its monitoring to a review of a small munber of student files on each on-site visit. The District has more than 3,000 students with disabilities and hundreds who fall within the class definition herein. However, during their monitoring visits, MDE typically pulls less than 10 student files to fulfill its "random monitoring" to assess JPS's level of systemic noncompliance. This is inadequate for MDE to gauge JPS's compliance with the IDEA and
20

amounts to a violation of MDE's duty to monitor and supervise JPS to ensure compliance with the IDEA. Systemic violations will continue lmabated throughout JPS if MDE continues to abdicate its monitoring and enforcement mandate. Plaintiff E.H.
51, E.H. is 16 years old and will start the tenth grade next year at JPS. E,H, is a very talented athlete, and hopes to attend college upon completing high school.
52, JPS has denied FAPE to E.H, for several years, as demonstrated by his lack of academic and behavioral progress over several years, MDE has been aware of JPS's failure to provide E.H. with FAPE since at least September 2010. However, MDE has failed to adequately fulfill its monitoring, supervisory and enforcement duties to ensure that E.H. is provided with FAPE.
53. At the time that MDE concluded its investigation into the September 8, 2010 administrative complaint, MDE affIrmed the following allegations made by E.H. in the administrative complaint:
a) Despite exhibiting significant behavioral problems throughout the 2008-2009 and 2009-2010 school years resulting in numerous out-of-school removals and placement in a restrictive self-contained classroom, JPS failed to provide E.H. with any related services to address his behavior, and failed to conduct an FBA and develop an appropriate BIP for him.
b) JPS failed to provide E.H. with any meaningful educational benefit from his IEP. E.H.'s records showed that he had made virtually no academic progress over several years. His initial evaluation from 2005 stated that his reading skills were at a 1.3 grade level and his math skills were between a 2.8 and 3.5 grade level.
21

Three years later, his IEP stated that his reading skills were at a 2.3 grade level and his math skills were at a 2.6 grade level. During that three year period, E.H. increased his reading skills by only 1 grade level and his math skills actually regressed. E.H. also fell behind due to removals from his regular education classes and placement in a self-contained classroom where he did not receive appropriate instruction. c) JPS failed to comply with the IDEA's procedural and substantive requirements governing the development and implementation of IEPs. In particular, JPS failed to align E.H.'s goals with his present levels of performance. During the 20082009 school year, E.H.'s annual academic goals stated that he would learn the 6th grade curriculum requirements, even though his present levels of performance in reading and math were at a 2.3 and 2.6 grade level respectively. The same discrepancies appeared again on his 2009-2010 and 2010-2011IEPs, even after he failed all of his major subjects during the 2008-2009 school year and earned 2 D's and 3 F's in his five major subjects during the 2009-2010 school year. JPS also failed to consider the use of positive behavioral interventions and supports in his IEP, despite lengthy documentation that behavior was a significant factor affecting his education. JPS also failed to meet and revise E.H.'s IEP to address his clear lack of academic and behavioral progress. d) JPS's failure to provide appropriate academic and related services resulted in E.H.'s suspension from school and placement in a restrictive classroom setting, and placed E.H. at risk for future restrictive placements, in violation of the IDEA's mandate that he be served in his LRE.
22

e) JPS denied E.H. ESY services during the summer of2009 despite a clear need for ESY services.
54. JPS continued to violate E.H.'s rights throughout the 2010-2011 and 2011-2012 academic years, as confirmed by MDE's most recent monitoring report from April 18-20, 2012 documenting JPS's ongoing failure to correct the individual and systemic violations documented in JPS's November 22,2010 findings.
55. Despite a directive from MDE in November 2010 to provide E.H. with compensatory related services, JPS did not even include any related services on his IEP until February 2012, and only did so after Plaintiffs counsel made several requests.
56. JPS drafted E.H.'s 2011-2012 annual IEP on August 22, 2011. Despite having been vindicated in the administrative process, E.H.'s educational program suffered from the same deficiencies first noted in the September 2010 complaint such as (1) a failure to ascertain his present levels of performance; (2) a failure to include any related services; (3) a failure to provide appropriate transition services; (4) a failure to align E.H.'s goals with his present levels ofperforrnance; and (5) a failure to confer meaningful educational benefit.
57. Despite continuing documentation of behavioral issues, to date JPS has failed to complete an FBA or provide E.H. with an appropriate BIP. And, to date, MDE has failed to ensure that JPS provides E.H. with these necessary services. As a result, E.H. lost the opporttmity to make behavioral progress for another academic year.
58. JPS has also failed to provide E.H. with appropriate ESY services and MDE has failed to ensure the provision of such services. JPS determined that E.H. was eligible for ESY services for the 2012 summer session, and determined that he needed to attend the summer session 5 days per week for three weeks, for a total of 15 days of instruction. However, for no
23

apparent reason, JPS failed to transport E.H. to his ESY services for the first six days of the summer session. E.H. was able to make up two of these days, but still lost 4 days of ESY instmction due to JPS's failure to transport him for services.
59. E.H. continues to read somewhere between a 2nd and 3rd grade level, and JPS has failed to properly revise E.H.'s IEP to ensure that he receives FAPE.
60. By MDE's own admission, E.H. has not received FAPE for the past two academic years. E.H. will continue to be denied FAPE unless MDE properly exercises its monitoring and enforcement authority, as it is required to do under the IDEA.
CAUSE OF ACTION COUNT I
INDIVIDUALS WITH DISABILITIES EDUCATION ACT 20 U.S.c. §§ 1412(a)(1), (ll)(A)
61. The foregoing allegations are repeated and incorporated as though fully set forth herein.
62. The IDEA specifies that the State Educational Agency is responsible for ensuring that the requirements of the Act are met. 20 U.S.C. § l412(a).
63. The State Educational Agency must monitor implementation of the Act, including utilizing appropriate enforcement mechanisms to ensure compliance with the IDEA. 20 U.S.C. § 1412(a)(11); § 1413(d), (g); 34 C.F.R. § 300.600(a).
64. In exercising its general supervisory responsibilities, including monitoring, the State must ensure that noncompliance is corrected as soon as possible, and in no case later than one year after the identification of noncompliance. 34 C.F.R. § 300.600(e).
65. As set forth above, Defendant has failed to comply with its general supervisory and enforcement responsibilities by failing to appropriately monitor JPS and to ensure that JPS
24

takes immediate and effective measures to eliminate individual and systemic violations of the
IDEA, as mandated under the IDEA. As a result of Defendant's unlawful acts, Plaintiff and the
class he seeks to represent have been denied the substantive guarantees of the IDEA.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff respectfully requests that this Court:
I. AsslIDle jurisdiction over this matter;
2. Certify this case as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2) with the
class as defined above and the below signed counsel appointed as class counsel;
3. Declare lmlawful Defendant's failure to comply with the mandates of the IDEA as
authorized under 28 U.S.C. § 2201;
4. Enter a preliminary and permanent injlmction enjoining Defendant from subjecting
members of the Plaintiff class to practices that violate their rights lmder the IDEA and
compelling Defendant to fulfill its duties under the IDEA;
5. Award to the Plaintiff the reasonable costs and attorney's fees incurred in the prosecution
of this action pursuant to 20 U.S.C. § 1415(i)(3)(b);
6. Award such other equitable and further relief as the Court deems just and proper.
RESPECTFULLY SUBMITTED, this the 10th day of July, 2012.
VANESSA J. CARROLL, MS Bar No. 10273 vanessa.carroll@splcenter.org CORRIE COCKRELL, MS BarNo. 102376 corrie.cockrell@splcenter.org JODY E. OWENS, II, MS BarNo. 102333 jody.owens@splcenter.org Southern Poverty Law Center III E. Capitol St., Suite 280 Jackson, MS 39201 601-948-8882 (telephone) 601-948-8885 (fax)
25

JERRI KATZERMAN AZ Bar No. 013895* jerri.katzerman@splcenter.org Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8320 (telephone) 334-956-8481 (fax)
*Pro hac vice motion to be filed
JIM COMSTOCK-GALAGAN LA Bar No. 05880* j galagan@sdlcenter.org Southern Disability Law Center 4431 Canal st. New Orleans, LA 70119 504-486-8982 (telephone) 504-486-8947 (fax)
*Pro hac vice motion to be filed
WENDELL HUTCHINSON, MS Bar No. 99178 whutchinson@drms.ms Disability Rights Mississippi 210 E. Capitol St., Suite 600 Jackson, MS 39201 601-968-0600 (telephone) 601-968-0665 (fax)
26

 
 Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

_________________________________________

)

E.H., by and through his next friend, Lula Henry; )

J.P., by and through his next friend, Joe Nemeka )

Paige; and R.T., by and through his next friend, )

Dawn Traxler; on behalf of themselves and all )

similarly situated students,

)

)

Plaintiffs, )

)

v.

)

)

MISSISSIPPI DEPARTMENT OF EDUCATION, )

)

Defendant. )

)

_________________________________________ )

Case No. 3:12cv00474-DPJ-FKB

AMENDED COMPLAINT

1. This is a class action lawsuit filed on behalf of children with disabilities in the

Jackson Public School District (“JPS”) to hold the Mississippi Department of Education

(“MDE”) accountable for ensuring that they receive the free appropriate public education they

are entitled to receive under the Individuals with Disabilities Education Improvement Act of

2004 (“IDEA”), 20 U.S.C. § 1400 et seq. For years, students with disabilities throughout JPS

have been denied the educational and supportive services they need to achieve academically, and

have been removed from their schools and forced into substandard segregated settings with little

to no appropriate academic programming and related services. In September 2010, Plaintiff E.H.

and a class of similarly situated JPS students filed a systemic state administrative complaint

against JPS which alerted MDE to numerous systemic violations of the IDEA, and requested

MDE’s assistance in investigating and ensuring correction of both the individual and systemic

Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 2 of 33
violations that prevented them from obtaining an appropriate education from JPS. Although MDE substantiated each and every one of the violations detailed in the 2010 administrative complaint, JPS has continued to violate the rights of the Plaintiffs and the class of similarly situated students.
2. Over the past twenty-two months, JPS has sought only to evade responsibility for these violations, and has openly and defiantly refused to provide the Plaintiffs and similarly situated students with the appropriate services they are entitled to receive under the IDEA. Sadly, despite having the authority and obligation under federal and state law to hold JPS accountable for these violations and ensure the provision of critical special education and related services to children with disabilities, MDE has exhibited complete indifference to Plaintiffs’ pleas for relief, and has failed to take appropriate action to compel JPS to correct the individual and systemic violations of the IDEA that harm thousands of JPS’s most vulnerable students.
3. JPS’s systemic failure to comply with the IDEA greatly diminishes the likelihood that thousands of JPS students will realize their full academic potential and achieve a successful transition from high school. The devastating impact of JPS’s unlawful conduct is borne out in the District’s dismal graduation rate for students with disabilities: less than ten percent of students with disabilities graduate from JPS. During the 2010-2011 school year, only 9% of eighth grade students with disabilities scored proficient or above in state-wide science testing, while only 4% of eighth grade students with disabilities were considered proficient in language arts as measured on the Mississippi Curriculum Test. Plaintiffs and the proposed class are merely seeking to claim their rightful opportunity to make meaningful behavioral and academic progress to achieve and succeed academically, and cannot allow more time to pass for JPS to continue to treat their education as expendable. The consequences of continued noncompliance
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by JPS, and MDE’s refusal to ensure compliance, are serious and profound for Plaintiffs and the class.
4. In 1975, Congress enacted what is now called the IDEA to end the longstanding failure of schools to meet the educational needs of students with disabilities. The statute is aimed at correcting the historic exclusion of students with disabilities from the classroom, and ensuring the provision of an appropriate education to all students with disabilities. To achieve this goal, state education agencies such as MDE are required to ensure that local school districts have policies and procedures in place to ensure that students with disabilities receive a free appropriate public education (“FAPE”). This entails providing each child with a disability with an individualized education program (“IEP”) that is reasonably calculated to confer meaningful educational benefit. IEPs must also include the provision of any related services, such as counseling and speech therapy, necessary to ensure that a child can make academic and behavioral progress; and must also provide for specific behavioral interventions when it is determined that a child’s behavior is interfering with his/her ability to make academic and/or behavioral progress. For some students, IEPs must provide for transition services to facilitate a successful transition from high school, and for extended school year (“ESY”) services over the summer months. The IDEA also mandates that students be served alongside their typical peers in the least restrictive environment (“LRE”), and includes numerous procedural safeguards to protect children from school discipline practices that punish them for behaviors related to their disabilities.
5. The Mississippi Department of Education bears the ultimate responsibility for ensuring that local school districts such as JPS comply with the IDEA and for ensuring that all students with disabilities, regardless of the nature or severity of their disability, receive FAPE in
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Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 4 of 33
the least restrictive environment. Despite this clear federal mandate, the Defendant has utterly failed Plaintiffs and similarly situated students with disabilities in JPS. Nearly two years ago, in response to a class-wide state administrative complaint filed by Plaintiff E.H. and a class of similarly situated students, MDE documented a host of systemic IDEA violations within JPS that resulted in the denial of FAPE to potentially thousands of students. Since that time, MDE has failed to properly exercise its general supervisory responsibilities under IDEA, including its monitoring and enforcement authority, and has thereby permitted JPS to perpetuate the same denials of FAPE, further squandering the valuable and limited time that students with disabilities have to obtain a free appropriate public education.
6. Plaintiff E.H. is a JPS student with a disability who has been denied the right to receive a free appropriate public education and who has experienced excessive disciplinary removals from school. On behalf of himself and the same class of similarly situated students identified in the 2010 state administrative complaint, Plaintiff E.H. seeks prospective injunctive relief ordering the Defendant to comply with its federal legal mandate to monitor JPS and enforce compliance with the IDEA so that Plaintiff E.H. and the proposed class may receive the free appropriate public education they are entitled to receive by law. Declaratory and injunctive relief is necessary to ensure enforcement of Plaintiff E.H.’s rights under the IDEA.
7. Plaintiff J.P. is a JPS student with a disability who has been denied the right to receive a free appropriate public education and who has experienced excessive disciplinary removals from school. On behalf of himself and the same class of similarly situated students identified in the 2010 state administrative complaint, Plaintiff J.P. seeks prospective injunctive relief ordering the Defendant to comply with its federal legal mandate to monitor JPS and enforce compliance with the IDEA so that Plaintiff J.P. and the proposed class may receive the
4

Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 5 of 33
free appropriate public education they are entitled to receive by law. Declaratory and injunctive relief is necessary to ensure enforcement of Plaintiff J.P.’s rights under the IDEA.
8. Plaintiff R.T. is a JPS student with a disability who has been denied the right to receive a free appropriate public education and who has experienced excessive disciplinary removals from school. On behalf of himself and the same class of similarly situated students identified in the 2010 state administrative complaint, Plaintiff R.T. seeks prospective injunctive relief ordering the Defendant to comply with its federal legal mandate to monitor JPS and enforce compliance with the IDEA so that Plaintiff R.T. and the proposed class may receive the free appropriate public education they are entitled to receive by law. Declaratory and injunctive relief is necessary to ensure enforcement of Plaintiff R.T.’s rights under the IDEA.
JURISDICTION 9. This action arises under the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq. Jurisdiction is conferred upon this Court by 20 U.S.C. § 1415(i)(2)-(3)(A) which provides the district courts of the United States with jurisdiction over actions brought under the IDEA without regard to the amount in controversy, and 28 U.S.C. § 1331, based upon the federal questions raised herein. 10. Plaintiffs and the class they seek to represent have no adequate remedy at law and have suffered and will continue to suffer irreparable harm unless the Defendant, including its agents, representatives and/or employees, is permanently enjoined from continuing its unlawful practices. This Court is authorized to grant declaratory and injunctive relief to Plaintiffs and the proposed class under 28 U.S.C. § 2201 and § 2202 and Rule 65 of the Federal Rules of Civil Procedure.
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Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 6 of 33
VENUE 11. Venue is proper in this Court under 28 U.S.C. § 1391(b)(2) because a “substantial part of the events or omissions giving rise to the claim occurred” in this district.
PARTIES 12. Plaintiff E.H. is a sixteen year old JPS student who is currently enrolled in the tenth grade at Provine High School. E.H. initially enrolled in JPS in the first grade, but was then home-schooled for part of the first grade and the entire second grade. He returned to JPS in August 2004 to begin the third grade. E.H. has been identified under IDEA as a student with a specific learning disability in basic reading and reading comprehension. He brings this action by and through his mother and next friend, Lula Henry, in accordance with Federal Rule of Civil Procedure 17(c). 13. Plaintiff J.P. is a sixteen year old JPS student who is currently enrolled in the ninth grade at Lanier High School. J.P. has been in JPS since he began public school. J.P. was identified under IDEA as a student with a specific learning disability in basic reading, reading comprehension, math calculation, and math reasoning. He brings this action by and through his mother and next friend, Joe Nemeka Paige, in accordance with Federal Rule of Civil Procedure 17(c). 14. Plaintiff R.T. is a fifteen year old JPS student who is currently enrolled in the tenth grade at Provine High School. R.T. has attended JPS schools since the first grade. R.T. was identified under IDEA as a student with a specific learning disability in language in 2008. He was later identified as a student with an emotional disability in 2010. He brings this action by and through his mother and next friend, Dawn Traxler, in accordance with Federal Rule of Civil Procedure 17(c).
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Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 7 of 33
15. Defendant Mississippi Department of Education is responsible for administering all public education services in Mississippi. Miss. Code Ann. § 37-3-5. MDE is the federally designated state educational agency as that term is defined in 20 U.S.C. § 1401(32). As such, MDE is also responsible for administering a program of special education services for children with disabilities throughout Mississippi that is designed to enable children with disabilities to reach their appropriate and uniquely designed goals for success, Miss. Code Ann. § 37-23-5, and for establishing regulations for school districts throughout Mississippi to operate their programs in compliance with the IDEA. Miss. Code Ann. § 37-23-135(1). Pursuant to federal law, MDE has the ultimate responsibility to ensure that local school districts implement and comply with the IDEA and that all eligible children receive a free appropriate public education. 20 U.S.C. § 1412(a)(11)(A).
CLASS ACTION ALLEGATIONS 16. Plaintiffs bring this action on behalf of themselves and all those similarly situated pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 17. The class is defined as follows: All JPS students with disabilities who were included as class members in the September 2010 IDEA administrative complaint styled as A.M. v. Jackson Public Schools, or who would currently meet the definition of a class member as established in that administrative matter, which consists of IDEA eligible students with emotional disabilities and IDEA eligible students who manifested behavior issues and were subjected to three or more disciplinary removals1 from JPS and/or placement in an alternative school setting in JPS during the course of a single school year. 18. The size of this class is so numerous that joinder of all members is impracticable. During the 2010-2011 school year, there were over 3,000 students with disabilities receiving special education services in JPS. Hundreds of these students were subjected to three or more
1 Disciplinary removals are defined as in-school suspension, out-of-school suspension, and undocumented illegal removals from school.
7

Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 8 of 33
disciplinary removals involving out-of-school suspension (“OSS”), in-school suspension (“ISS”), undocumented and illegal school removals, and/or placement in JPS’s alternative school. Since 2010-2011, JPS has suspended students with disabilities at even higher rates, adding more students to the proposed class.
19. There are questions of law and fact common to the class, such as whether the Defendant’s failure to properly execute its general supervisory responsibilities, including its monitoring and enforcement obligations, has violated Plaintiffs’ right under the IDEA to receive a free appropriate public education in accordance with the requirements of the IDEA.
20. The claims of the Plaintiffs are typical of the claims of the class. As a result of Defendant’s unlawful policies and practices, Plaintiffs and the class they seek to represent have been denied the benefits of a program of special education and related services as required by the IDEA.
21. The Plaintiffs will fairly and adequately represent the interests of the class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. The Plaintiffs possess a strong personal interest in the subject matter of the lawsuit, and are represented by experienced counsel with expertise in special education and disability law, class action litigation, and civil rights proceedings.
22. The Defendant has acted and refused to act on grounds generally applicable to the class in that Defendant’s unlawful failure to properly exercise its general supervisory responsibilities, including its monitoring and enforcement obligations, over JPS has affected all class members by denying them the special education and related services guaranteed to them by the IDEA. Accordingly, final injunctive and declaratory relief is appropriate for the class as a whole.
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Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 9 of 33
STATUTORY FRAMEWORK 23. The IDEA requires that a state provide a free appropriate public education to all students with disabilities, including children with disabilities who have been suspended or expelled from school. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101. The IDEA establishes a system of procedural and substantive requirements to which the state educational agency (“SEA”) must adhere to ensure that each child with a disability receives a free appropriate public education. MDE is the SEA for the State of Mississippi. 24. MDE must ensure that all eligible students receive an IEP that is developed, reviewed and revised to confer meaningful educational benefit. 20 U.S.C. § 1412(a)(4); 20 U.S.C. § 1414(d). The IEP must include, among other things, a statement of the child’s present levels of academic achievement and functional performance, a statement of measurable annual goals, a statement of the special education and related services, and supplementary aids and services to be provided to the child to help him/her participate in the general curriculum and make progress in the general curriculum and toward achieving his/her annual goals. 20 U.S.C. § 1414(d)(1)(A)(i). The child’s IEP team is required to review the child’s IEP periodically to determine whether the annual goals for the child are achieved and revise the IEP as appropriate to address any lack of progress toward annual goals and in the general curriculum. 20 U.S.C. § 1414(d)(4). 25. MDE is obligated to ensure that children with disabilities are provided with the necessary supplementary aids and services to allow them to be educated in their LRE, meaning that children with disabilities should receive services in a setting where they are able to interact with nondisabled children to the maximum extent appropriate. 20 U.S.C. § 1412(a)(5)(A).
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Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 10 of 33
26. MDE must ensure that IEPs include consideration of positive behavioral interventions and supports for students who exhibit behavior problems that impede their learning or that of others. 20 U.S.C. § 1414(d)(3). MDE must also ensure that children who are subject to disciplinary removals that amount to more than ten days for behavior that is a manifestation of their disability receive a functional behavioral assessment (“FBA”), behavior intervention plan (“BIP”) and modifications to address the behavior violation so that it does not recur. 20 U.S.C. § 1415(k)(1)(D)(ii).
27. MDE must ensure that for children 14 years of age and older, their IEP includes a transition plan that identifies the child’s post-secondary goals and identifies the services needed to assist the child in reaching those goals. 34 C.F.R. § 300.320(b); State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004, State Board Policy 7219, § 300.320(b).
28. MDE must ensure that ESY services are available and provided to those children deemed eligible for ESY services. 34 C.F.R. § 300.106; State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004, State Board Policy 7219, § 300.106; State Board of Education Policy 7212.
29. MDE must ensure that children with disabilities are afforded the procedural safeguards described by the IDEA when disciplinary action is contemplated. Prior to being subject to a disciplinary removal lasting more than ten days, a district must convene a manifestation determination review (“MDR”) to review all relevant information in the student’s file, including the IEP, teacher observations and information provided by the parent/guardian to determine if the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability or if the conduct in question was the direct result of the school’s failure to
10

Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 11 of 33
implement the IEP. If it is determined that the behavior is a result of the school’s failure to implement the IEP, immediate action must be taken to remedy any deficiencies with the school’s implementation of the IEP. 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e).
30. The IDEA also requires the state to examine data from local school districts to determine if significant discrepancies exist in the rates of suspensions and expulsions of children with disabilities. If discrepancies exist, the state must review and revise its policies, procedures and practices relating to the development of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards to ensure that the state is in compliance with the IDEA. 20 U.S.C. § 1412(a)(22); 34 C.F.R. § 300.170.
31. As the SEA, MDE is ultimately responsible for ensuring that JPS follows the mandates of the IDEA and provides all eligible students with FAPE. 20 U.S.C. § 1412(a)(1), (11)(A). MDE is responsible for implementing policies and procedures to ensure that local educational agencies (“LEA”) are monitored for implementation and compliance with the IDEA. When the SEA identifies areas of noncompliance, it must ensure that noncompliance is corrected as soon as possible, and in no case later than one year after the State’s identification of noncompliance. 34 C.F.R. § 300.600(e). The SEA is also responsible for providing FAPE directly to students when an LEA is unable to establish and maintain programs of FAPE in compliance with the IDEA. 20 U.S.C. § 1413(g); 34 C.F.R. § 300.227(a)(1)(ii).
32. The SEA must also establish procedures for individuals to file complaints with the SEA regarding individual and systemic violations of the IDEA by an LEA. The SEA is required to investigate these complaints, and, if noncompliance is found, must ensure that appropriate corrective action is taken within one year to redress both individual and systemic IDEA
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violations and ensure that appropriate services are provided to children with disabilities thereafter. 34 C.F.R. §§ 300.151-153, § 600(e). SYSTEMIC ALLEGATIONS AND EXHAUSTION OF ADMINISTRATIVE REMEDIES
33. In September 2010, Plaintiff E.H.2 filed a state administrative complaint with MDE against JPS pursuant to 34 C.F.R. §§ 300.151-153. The complaint alleged several systemic IDEA violations by JPS involving the provision of FAPE to students with disabilities who had been subjected to three or more disciplinary removals and/or placement in JPS’s alternative school. MDE investigated Plaintiff E.H.’s allegations as a systemic state administrative complaint on behalf of the named petitioners3 and all other similarly situated special education students who manifest behavioral issues and are subject to three or more disciplinary removals from school and/or placement in an alternative school setting. MDE issued its findings and decision on November 22, 2010, substantiating all of the individual and systemic allegations contained in the administrative complaint. Nearly two years have elapsed, and MDE has failed to ensure correction of the individual and systemic violations. As a result of the systemic claims raised in the original state administrative complaint and in this Complaint, Plaintiff E.H. is not required to exhaust administrative remedies available under the IDEA. Given that the administrative system cannot provide the Plaintiff-class with the requested classwide, systemic declaratory and injunctive relief, exhaustion would be futile.
2 The September 8, 2010 administrative complaint included several other named petitioners who have moved, left the District or are not otherwise named in this Complaint. 3 Use of the term “petitioners” throughout this Complaint is intended to refer to the individual students representing a class of IDEA eligible students with behavioral issues who were subjected to three or more disciplinary removals and/or placement in an alternative school setting in JPS who filed the original administrative complaint on September 8, 2010.
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Case 3:12-cv-00474-DPJ-FKB Document 7 Filed 09/17/12 Page 13 of 33
STATEMENT OF FACTS 34. On September 8, 2010, Plaintiff E.H. filed a systemic administrative complaint with MDE on behalf of himself and a class of similarly situated JPS students with disabilities who had experienced three or more disciplinary removals and/or placement in an alternative school setting. Plaintiff E.H. and the other petitioners filed the complaint to address individual and systemic violations of the IDEA by JPS which resulted in the denial of FAPE to Plaintiff E.H., the petitioners and all similarly situated students. The administrative complaint alleged the following individual and systemic violations of the IDEA by JPS:
a) Denial of FAPE by failing to provide petitioners and similarly situated students with appropriate levels of related services;
b) Denial of FAPE by failing to comply with the IDEA’s discipline regulations with regard to FBAs, BIPs, and MDRs;
c) Denial of FAPE by failing to confer meaningful educational benefit; d) Denial of FAPE by failing to comply with the substantive and procedural
requirements governing the development and implementation of IEPs; e) Denial of FAPE by failing to provide educational services for petitioners and
similarly situated students in the least restrictive environment; f) Denial of FAPE by failing to provide petitioners and similarly situated students
with necessary and appropriate transition services; g) Denial of FAPE by failing to provide petitioners and similarly situated students
with necessary and appropriate ESY services. Plaintiff E.H., the other petitioners and a class of similarly situated students alleged that these violations resulted in a cycle of unlawful removals from the classroom environment and
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punishment for behaviors related to their disabilities, and deprived them of the ability to make positive academic gains. Plaintiff E.H., other petitioners and the class sought widespread systemic relief to reform the manner in which JPS administers its special education program.
35. As required by federal law, MDE investigated these allegations and issued a report containing its findings and decision on November 22, 2010. MDE’s investigation confirmed that JPS had violated the rights of E.H. and the other named petitioners. MDE’s investigation also confirmed that the IDEA violations were systemic throughout JPS and resulted in the denial of FAPE to the named petitioners and all similarly situated students. MDE specifically noted the following individual and systemic violations of the IDEA:
a) JPS denied FAPE to petitioners and all similarly situated students by failing to provide them with an appropriate level of related services to address their behavioral needs and goals. Despite documented behavior concerns, JPS failed to provide many students with any related services.
b) JPS denied FAPE to petitioners and similarly situated students by conducting inadequate FBAs and formulating inappropriate BIPs. MDE further documented that JPS failed to implement BIPs, and students did not obtain any benefit from the BIPs created by JPS.
c) JPS denied FAPE to petitioners and similarly situated students by failing to meaningfully update and revise IEPs. JPS failed to gather, summarize and review meaningful data necessary to monitor behavioral progress. Consequently, students obtained absolutely no benefit from their IEPs and BIPs and made no behavioral progress, amounting to a denial of FAPE.
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d) JPS violated the procedural rights of petitioners and similarly situated students by failing to conduct MDRs in conformance with the IDEA procedural safeguards, and consequently subjected petitioners and similarly situated students to unlawful disciplinary action and restrictive placements.
e) JPS denied FAPE to petitioners and similarly situated students by failing to collect information and data on student academic and behavioral performance, resulting in petitioners and similarly situated students failing to obtain any meaningful educational benefit from their IEPs.
f) JPS denied FAPE to petitioners and similarly situated students by failing to comply with the requirements for developing and implementing IEPs. In particular, JPS failed to properly align students’ academic goals and objectives with their actual levels of performance; failed to consider positive behavioral interventions and supports to improve behavior; failed to properly review student performance; and failed to revise IEPs as needed to address a lack of academic or behavioral progress.
g) JPS denied FAPE to petitioners and similarly situated students by failing to provide them with the necessary supports and related services to serve them in their LRE. MDE found that this created a disparity in some students being placed at the JPS alternative school or other restrictive settings.
h) JPS denied FAPE to petitioners and similarly situated students by failing to provide them with adequate and meaningful transition planning and supports.
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i) JPS denied FAPE to petitioners and similarly situated students by failing to appropriately evaluate them to determine the need for ESY services and by failing to provide appropriate ESY services when needed.
36. MDE ordered JPS to submit to MDE within 30 days an improvement plan outlining the actions JPS would implement to correct the systemic violations of the IDEA. MDE also ordered JPS to take corrective action with regard to the named petitioners and provide them with compensatory services. In order to facilitate JPS’s development of an appropriate corrective action plan (“CAP”) and provision of compensatory services, MDE appointed a technical advisor to assist JPS with developing and implementing the corrective action plan.
37. Despite MDE’s directive that JPS consult with the technical advisor in developing a corrective action plan and providing compensatory services, JPS refused to collaborate with the technical advisor and deliberately excluded the technical advisor from implementation of most of the proposed corrective actions in the CAP it submitted to MDE in late December 2010.
38. JPS’s proposed corrective action plan suffered from several glaring deficiencies, among them a failure to acknowledge MDE’s findings; a failure to address several of MDE’s findings and required corrective actions; a failure to acknowledge that MDE’s findings substantiated systemic, and not just individual, violations of the IDEA; and an outright refusal to follow the corrective actions prescribed by MDE.
39. Despite having the obligation and authority to do so under state and federal law, MDE took no action against JPS for submitting a proposed CAP that manifested JPS’s open defiance and refusal to comply with federal law.
40. MDE took no action to ensure JPS produced a CAP that ensured the provision of FAPE to E.H. and the class of similarly situated students.
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41. Upon information and belief, MDE submitted JPS’s proposed CAP to the technical advisor for review sometime in January or February 2011. Upon information and belief, the technical advisor rejected JPS’s CAP and provided MDE with substantial written revisions to address the deficiencies in JPS’s CAP. MDE declined to adopt the technical advisor’s recommendations and instead allowed JPS to proceed with implementing a CAP that was not actually capable of resolving the systemic IDEA violations that MDE had identified.
42. Despite MDE’s direction to JPS to work with the technical advisor, JPS refused to do so, going so far as to deny the technical advisor access to records and school personnel and asking the technical advisor to leave JPS’s premises. MDE acquiesced to this refusal and took no further action against JPS to remedy the noncompliance, despite having the authority and obligation to do so under state and federal law. MDE took no action to ensure the provision of FAPE to E.H., the named petitioners or any other similarly situated students during this time.
43. Instead of taking immediate action to remedy the deficiencies in JPS’s submitted CAP, MDE waited until late May 2011 – six months after it issued its findings – to request that the technical advisor conduct a targeted review of the original named petitioners to assess whether JPS had corrected the individual IDEA violations. The technical advisor issued a 151 page report in July 2011 detailing numerous ongoing IDEA violations for all of the named petitioners, including E.H., in the areas of FBAs, BIPs, related services, educational benefit and transition services.
44. In August 2011 – nearly one year after receiving the original administrative complaint – MDE ordered JPS to revise its deficient CAP. JPS submitted a revised CAP on September 9, 2011, and again in defiance of MDE, excluded the technical advisor from all of its corrective action activities. Despite having the authority and obligation to do so under state and
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federal law, MDE failed to take any action to compel JPS to work with the technical advisor and correct the individual and systemic violations of the IDEA. MDE took no action to ensure the provision of FAPE to E.H., the named petitioners and similarly situated students during this time.
45. On September 26, 2011, MDE submitted a written review of JPS’s revised CAP that detailed numerous deficiencies with JPS’s CAP and ordered JPS to collaborate extensively with the technical advisor to ensure correction of the individual and systemic violations of the IDEA. MDE specifically noted JPS’s resistance to work with the technical advisor over the past several months. Nonetheless, JPS continued to refuse to work with the technical advisor throughout the fall of 2011 and thereby refused to implement MDE’s revised CAP. Despite having the authority and obligation under state and federal law to do so, MDE failed to take any action to compel JPS to implement an appropriate CAP and correct the individual and systemic violations of the IDEA. MDE took no action to ensure the provision of FAPE to E.H., the named petitioners and similarly situated students during this time.
46. In mid-November 2011, MDE conducted a follow-up monitoring visit to determine whether JPS had taken sufficient corrective action to remedy the individual and systemic IDEA violations it had identified in its November 22, 2010 investigation report and findings. MDE issued a follow-up monitoring evaluation report from this new visit on January 13, 2012. The report detailed the same individual and systemic violations for virtually all of the original named petitioners still attending school in JPS, including E.H. The named petitioners’ IEPs continued to suffer from the same deficiencies identified by MDE over one year earlier. In over one year, JPS had failed to correct individual violations, and had failed to make any systemic improvements to cure the District’s systemic violations of the IDEA. Despite having the authority and obligation under state and federal law to do so, MDE failed to take any action
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to compel JPS to correct the individual and systemic violations of the IDEA. MDE took no action to ensure the provision of FAPE to E.H., the named petitioners and similarly situated students during this time.
47. Following MDE’s issuance of its January 13, 2012 follow-up report, Plaintiff’s counsel also informed MDE of ongoing individual and systemic violations within JPS, and sought MDE’s assistance in correcting these violations. MDE refused to take any action to remedy the individual and systemic violations. For instance, MDE agreed to attend the IEP meetings for some of the petitioners from the state administrative complaint, including Plaintiff E.H. However, MDE refused to participate in these meetings, and remained silent, even while JPS staff made decisions and recommendations that clearly violated federal law. Even more confounding, MDE invited the technical advisor to attend some of these IEP meetings, but instructed the technical advisor to remain silent throughout the IEP meeting and refrain from offering recommendations and technical advice. MDE further declined to order JPS officials to adopt specific recommendations from the technical advisor to remedy the denial of FAPE to individual students. MDE limited its enforcement action to referring JPS to MDE’s Office of Accreditation to initiate proceedings to strip JPS of its accreditation – an action that would do absolutely nothing to ensure the provision of FAPE to E.H., the named petitioners and other similarly situated students.
48. MDE conducted another follow-up monitoring visit on April 18-20, 2012 and issued a report on May 15, 2012. This report documented that JPS had made some minor effort to develop policies and procedures and provide training to staff. However, a review of student files indicated that the District had failed to implement its newly promulgated policies and procedures, and as a result, the District still had not resolved the original findings of individual
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and systemic noncompliance dating back to November 2010. MDE noted that the specific areas covered by JPS’s new policy development and training were “lacking or nonexistent” in the student files reviewed. MDE noted that this was a “clear indication” that JPS’s ongoing noncompliance is attributable to a complete failure on the part of JPS to implement its own policies and procedures. MDE’s report also found that JPS was suspending students with disabilities at increasingly disproportionate rates and that the disproportionality was actually greater than it was in 2010 when Plaintiff filed the underlying administrative complaint.
49. On April 26 and May 21, 2012, the Office of Accreditation held a hearing to decide whether JPS should lose its accreditation. At the conclusion of the hearing, the Office of Accreditation decided to give JPS until November 1, 2012 to come into compliance with the IDEA. The Office, which is housed within MDE, made this determination despite testimony from the technical advisor that JPS’s violations are so systemic and JPS is so far behind in implementing appropriate corrective action that it will take JPS several years to obtain full compliance.
50. MDE’s monitoring and enforcement continues to be insufficient and inadequate. Although MDE documented in its May 15, 2012 report that JPS had failed to implement any policies and procedures to correct its individual and systemic IDEA violations, and despite JPS’s failure to develop and implement an adequate CAP for nearly two years, MDE’s corrective action at this point is limited to ordering JPS to produce yet another CAP, rather than ordering JPS to implement an actual plan created in collaboration with the technical advisor. JPS has until July 15, 2012 to produce this new CAP.
51. MDE has also acquiesced to JPS’s resistance to work with the technical advisor, and has allowed the technical advisor’s role and authority to remain ambiguous, and thus
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ineffective. Upon information and belief, JPS is under no requirement from MDE to adopt the recommendations of the technical advisor, and is free to continue to disregard the technical advisor’s recommendations, just as it has done for the past two years.
52. Since the Office of Accreditation issued its decision on or about May 21, 2012, JPS has undertaken several purported corrective actions that will actually exacerbate JPS’s systemic violations under the IDEA. For instance, despite repeated admonishment from MDE that removing students with disabilities from the classroom and placing them in restrictive segregated environments violates the LRE mandate of the IDEA, in its June 4, 2012 Weekly Report to MDE, JPS proposed creating two new segregated settings for students with disabilities for the next school year. One such segregated setting is a day treatment program, isolated from other mainstream schools within JPS that would serve only students with emotional disabilities. Students in this day treatment program would not even have the benefit of receiving live instruction and would not have a real, much less a highly qualified, teacher in their classroom. Instead, JPS intends to provide some of its most academically vulnerable students with instruction via video streaming from other classrooms. In its June 4, 2012 Weekly Report, the District also proposed creating a separate alternative school program to serve only students with disabilities.
53. Further, JPS informed MDE in its June 4, 2012 Weekly Report that it plans to place full time psychologists and behavioral support specialists in the alternative school and day treatment program to provide students with disabilities with more intensive behavioral interventions. However, JPS has not taken any action to make these vital services and the increased staffing available to students in regular education classrooms and regular neighborhood school settings to prevent their removal to more restrictive settings. Rather than
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implementing measures to improve student behavior and reduce the need for segregated placements, JPS has merely expanded the array of segregated settings it may use, and has thus further incentivized the exclusion of students with disabilities from the classroom.
54. MDE’s failure to hold JPS accountable for systemic violations of the IDEA is exacerbated by deficiencies in MDE’s monitoring. Despite finding these violations to be systemic, MDE has limited its monitoring to a review of a small number of student files on each on-site visit. The District has more than 3,000 students with disabilities and hundreds who fall within the class definition herein. However, during their monitoring visits, MDE typically pulls less than 10 student files to fulfill its “random monitoring” to assess JPS’s level of systemic noncompliance. This is inadequate for MDE to gauge JPS’s compliance with the IDEA and amounts to a violation of MDE’s duty to monitor and supervise JPS to ensure compliance with the IDEA. Systemic violations will continue unabated throughout JPS if MDE continues to abdicate its monitoring and enforcement mandate. Plaintiff E.H.
55. E.H. is 16 years old and entered the tenth grade at Provine High School within JPS at the beginning of the 2012-2013 school year. E.H. is a very talented athlete, and hopes to attend college upon completing high school.
56. JPS has denied FAPE to E.H. for several years, as demonstrated by his lack of academic and behavioral progress over several years. MDE has been aware of JPS’s failure to provide E.H. with FAPE since at least September 2010. However, MDE has failed to adequately fulfill its monitoring, supervisory and enforcement duties to ensure that E.H. is provided with FAPE.
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57. At the time that MDE concluded its investigation into the September 8, 2010 administrative complaint, MDE affirmed the following allegations made by E.H. in the administrative complaint:
a) Despite exhibiting significant behavioral problems throughout the 2008-2009 and 2009-2010 school years resulting in numerous out-of-school removals and placement in a restrictive self-contained classroom, JPS failed to provide E.H. with any related services to address his behavior, and failed to conduct an FBA and develop an appropriate BIP for him.
b) JPS failed to provide E.H. with any meaningful educational benefit from his IEP. E.H.’s records showed that he had made virtually no academic progress over several years. His initial evaluation from 2005 stated that his reading skills were at a 1.3 grade level and his math skills were between a 2.8 and 3.5 grade level. Three years later, his IEP stated that his reading skills were at a 2.3 grade level and his math skills were at a 2.6 grade level. During that three year period, E.H. increased his reading skills by only 1 grade level and his math skills actually regressed. E.H. also fell behind due to removals from his regular education classes and placement in a self-contained classroom where he did not receive appropriate instruction.
c) JPS failed to comply with the IDEA’s procedural and substantive requirements governing the development and implementation of IEPs. In particular, JPS failed to align E.H.’s goals with his present levels of performance. During the 20082009 school year, E.H.’s annual academic goals stated that he would learn the 6th grade curriculum requirements, even though his present levels of performance in
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reading and math were at a 2.3 and 2.6 grade level respectively. The same discrepancies appeared again on his 2009-2010 and 2010-2011 IEPs, even after he failed all of his major subjects during the 2008-2009 school year and earned 2 D’s and 3 F’s in his five major subjects during the 2009-2010 school year. JPS also failed to consider the use of positive behavioral interventions and supports in his IEP, despite lengthy documentation that behavior was a significant factor affecting his education. JPS also failed to meet and revise E.H.’s IEP to address his clear lack of academic and behavioral progress. d) JPS’s failure to provide appropriate academic and related services resulted in E.H.’s suspension from school and placement in a restrictive classroom setting, and placed E.H. at risk for future restrictive placements, in violation of the IDEA’s mandate that he be served in his LRE. e) JPS failed to provide E.H. with adequate and meaningful transition planning and supports. f) JPS denied E.H. ESY services during the summer of 2009 despite a clear need for ESY services. 58. JPS continued to violate E.H.’s rights throughout the 2010-2011 and 2011-2012 academic years, as confirmed by MDE’s most recent monitoring report from April 18-20, 2012 documenting JPS’s ongoing failure to correct the individual and systemic violations documented in MDE’s November 22, 2010 findings. 59. Despite a directive from MDE in November 2010 to provide E.H. with compensatory related services, JPS did not even include any related services on his IEP until February 2012, and only did so after Plaintiff’s counsel made several requests.
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60. JPS drafted E.H.’s 2011-2012 annual IEP on August 22, 2011. Despite having been vindicated in the administrative process, E.H.’s educational program suffered from the same deficiencies first noted in the September 2010 complaint such as (1) a failure to ascertain his present levels of performance; (2) a failure to include any related services; (3) a failure to provide appropriate transition services; (4) a failure to align E.H.’s goals with his present levels of performance; and (5) a failure to confer meaningful educational benefit.
61. Despite continuing documentation of behavioral issues, to date JPS has failed to complete an FBA or provide E.H. with an appropriate BIP. And, to date, MDE has failed to ensure that JPS provides E.H. with these necessary services. As a result, E.H. lost the opportunity to make behavioral progress for another academic year.
62. E.H. continues to read somewhere between a 2nd and 3rd grade level, and JPS has failed to properly revise E.H.’s IEP to ensure that he receives FAPE.
63. By MDE’s own admission, E.H. has not received FAPE for the past two academic years. E.H. will continue to be denied FAPE unless MDE properly exercises its monitoring and enforcement authority, as it is required to do under the IDEA. Plaintiff J.P.
64. J.P. is sixteen years old and is enrolled in the ninth grade for the second time in JPS. He currently attends Lanier High School. He enjoys basketball and music, and hopes to attend college when he leaves JPS so that he may open his own business one day.
65. JPS has denied FAPE to J.P. for several years, as evidenced by his lack of academic progress over several years. MDE has been aware of JPS’s failure to provide FAPE to students like J.P. since at least September 2010. However, MDE has failed to adequately fulfill its monitoring, supervisory and enforcement duties to ensure that J.P. is provided with FAPE.
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66. J.P. was initially determined eligible under the IDEA in 2000, under the classification category of developmentally delayed. At the time of his evaluation, J.P. was functionally nonverbal and experienced social skills deficits. J.P.’s current eligibility determination is under the category of specific learning disability for basic reading, reading comprehension, math calculation, and math reasoning. J.P. was scheduled to begin the tenth grade this school year. However, when his mother attempted to enroll him in August 2012, she was informed that J.P. had not passed the ninth grade and would be required to repeat the ninth grade.
67. Despite exhibiting significant behavioral problems resulting in more than three out-of-school removals during the 2011-2012 school year, JPS has failed to provide J.P. with appropriate related services to address his behavior. JPS noted the provision of limited related services on J.P.’s 2010-2011 IEP, but then removed these services from his 2011-2012 IEP without explanation. JPS has also failed to conduct an FBA and develop an appropriate BIP for him. During the 2011-2012 school year, J.P.’s mother specifically requested that JPS conduct an FBA and implement a BIP, and provide J.P. with counseling services. JPS agreed to do these things, but then failed to follow through with providing these services.
68. JPS has failed to provide J.P. with any meaningful educational benefit. J.P.’s education records show that he has made virtually no academic progress over several years. During the 2010-2011 school year, J.P. earned Ds in language arts and math, and scored “minimal” on the MCT2 test. J.P.’s 2011-2012 IEP states that he performed at the 6.3 grade level in math and the 3.7 grade level in reading. The IEP also notes that J.P.’s language arts MCT2 score decreased 5 points from basic to minimal, and his mathematics MCT2 score decreased 37 points from proficient to minimal. J.P.’s 2012-2013 IEP evidences an ongoing lack
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of progress and in some instances, clear regression. The IEP states that he is currently performing at a 5.5 grade level in reading, a 4.5 grade level in math comprehension, a 5.3 grade level in applied math, a 2.9 grade level in language, a 0.0 grade level in vocabulary, a 1.5 grade level in language mechanics, and a 4.9 grade level in spelling.
69. Although J.P.’s 2011-2012 IEP indicates that J.P. requires 90 minutes of tutorial instruction daily in compensatory reading, JPS failed to provide these services on a consistent basis. When he did receive tutorial services, the services consisted mostly of generic computer programs, rather than individualized remedial instruction. Further, despite significant deficits in math and writing, JPS did not provide J.P. with appropriate services in those areas. J.P. ultimately failed the ninth grade.
70. JPS failed to comply with IDEA’s procedural and substantive requirements governing the development and implementation of IEPs. JPS has consistently failed to align J.P.’s goals with his present levels of performance. Despite performing well below grade level, J.P.’s IEPs consistently state that he will master the current grade’s objectives with 60% proficiency. JPS has also failed to consider the use of positive behavioral interventions and supports in his IEP, despite considerable documentation that behavior has been a significant factor affecting his education. Further, despite J.P.’s demonstrated lack of progress over the years, and his failure to pass the ninth grade, JPS never made an effort to meet and revise the IEP to address J.P.’s lack of academic and behavioral progress. In fact, JPS completely failed to convene an IEP team meeting to develop J.P.’s 2012-2013 IEP, and instead developed an IEP without consulting either the parent or other members of the full IEP team. The IEP states that J.P. will attend the tenth grade, and fails to factor in that J.P. must repeat the ninth grade.
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71. JPS has failed to provide J.P. with an appropriate transition plan. His 2011-2012 transition plan merely stated that J.P. wishes to attend school to become a barber, have a family, and learn how to drive. The transition plan did not describe any transition services to be provided to J.P. to aid him in meeting his transition goals. JPS continues to deny J.P. appropriate transition services to assist him in meeting his transition goals.
72. JPS has also failed to consider J.P.’s need for ESY services, despite his known deficiencies and academic struggles. J.P.’s records indicate that JPS never assessed J.P. for ESY services, and never documented its reasons for denying him ESY services.
73. J.P. has been denied FAPE by JPS since at least 2010. J.P. will continue to be denied FAPE unless MDE properly exercises its monitoring and enforcement authority, as mandated under the IDEA. Plaintiff R.T.
74. Plaintiff R.T. is fifteen years old and enrolled in the tenth grade at Provine High School. He enjoys basketball and plans to attend college after graduating high school.
75. JPS has denied FAPE to R.T. for several years, as evidenced by his lack of behavioral and academic progress over several years. MDE has been aware of JPS’s failure to provide FAPE to students like R.T. since at least September 2010. However, MDE has failed to adequately fulfill its monitoring, supervisory and enforcement duties sufficient to ensure that R.T. receives FAPE.
76. R.T. was initially determined eligible under the IDEA in 2008, under the classification category of specific learning disability for language. JPS reevaluated R.T. in September 2010, and he was determined eligible under the category of emotional disability.
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77. At the time of the 2008 evaluation, prior evaluations and observations indicated that R.T. exhibited significant behavioral issues and that he would benefit from behavior management interventions. For instance, in September 2008, JPS suspended R.T. for the remainder of the school year for allegedly attempting to hit the assistant school principal. R.T.’s mother withdrew him from the District at that time and home-schooled him to avoid R.T. being placed in JPS’s alternative school. However, JPS did not reevaluate R.T. for an emotional disability until September 2010. Despite exhibiting significant behavioral problems, JPS did not provide R.T. with related services until the 2011-2012 school year, and did not implement a BIP until January 2010.
78. JPS has failed to provide R.T. with meaningful educational benefit. From the second grade through the sixth grade, R.T. obtained mostly As and Bs in his classes. However, R.T.’s grades have dropped dramatically, and he earned mostly Cs and Ds on his report card for the 2011-2012 school year. Further, despite demonstrating the ability in the past to perform at his expected grade level, R.T.’s 2012-2013 IEP indicates that he is performing below grade level in reading and math. JPS has not provided R.T. with appropriate compensatory services to addresses his deficits in reading and math.
79. JPS has failed to comply with IDEA’s procedural and substantive requirements governing the development and implementation of IEPs. JPS has consistently failed to align R.T.’s goals with his present levels of performance. Despite performing below grade level, J.P.’s IEP states that he will achieve the tenth grade benchmarks with 60% proficiency. JPS has further failed to revise R.T.’s IEP to address his lack of behavioral and academic progress.
80. JPS has failed to conduct an appropriate FBA and develop an appropriate BIP for R.T. JPS conducted the FBA in 2009 while R.T. attended Hardy Middle School, and created a
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BIP in 2010. However, the FBA did not collect appropriate baseline data, and the replacement behaviors and interventions on the BIP do not correspond with the target behaviors identified on the FBA. JPS also failed to update and revise the FBA and BIP since 2010 to address R.T.’s lack of behavioral progress and to address R.T.’s movement from Hardy Middle School to Provine High School.
81. JPS has also failed to provide R.T. with an appropriate transition plan. Although R.T. has been eligible to receive transition services since the 2011-2012 school year, JPS has failed to provide R.T. with any meaningful transition services to assist him in meeting his transition goals.
82. R.T. has been denied FAPE by JPS since at least 2010. R.T. will continue to be denied FAPE unless MDE properly exercises its monitoring and enforcement authority, as mandated under the IDEA.
CAUSE OF ACTION COUNT I
INDIVIDUALS WITH DISABILITIES EDUCATION ACT 20 U.S.C. §§ 1412(a)(1), (11)(A)
83. The foregoing allegations are repeated and incorporated as though fully set forth herein.
84. The IDEA specifies that the State Educational Agency is responsible for ensuring that the requirements of the Act are met. 20 U.S.C. § 1412(a).
85. The State Educational Agency must monitor implementation of the Act, including utilizing appropriate enforcement mechanisms to ensure compliance with the IDEA. 20 U.S.C. § 1412(a)(11); § 1413(d), (g); 34 C.F.R. § 300.600(a).
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86. In exercising its general supervisory responsibilities, including monitoring, the State must ensure that noncompliance is corrected as soon as possible, and in no case later than one year after the identification of noncompliance. 34 C.F.R. § 300.600(e).
87. As set forth above, Defendant has failed to comply with its general supervisory and enforcement responsibilities by failing to appropriately monitor JPS and to ensure that JPS takes immediate and effective measures to eliminate individual and systemic violations of the IDEA, as mandated under the IDEA. As a result of Defendant’s unlawful acts, Plaintiffs and the class they seek to represent have been denied the substantive guarantees of the IDEA.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court: 1. Assume jurisdiction over this matter; 2. Certify this case as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2) with the class as defined above and the below signed counsel appointed as class counsel; 3. Declare unlawful Defendant’s failure to comply with the mandates of the IDEA as authorized under 28 U.S.C. § 2201; 4. Enter a preliminary and permanent injunction enjoining Defendant from subjecting members of the Plaintiff class to practices that violate their rights under the IDEA and compelling Defendant to fulfill its duties under the IDEA; 5. Award to the Plaintiffs the reasonable costs and attorney’s fees incurred in the prosecution of this action pursuant to 20 U.S.C. § 1415(i)(3)(b); 6. Award such other equitable and further relief as the Court deems just and proper.
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RESPECTFULLY SUBMITTED, this the 17th day of September, 2012.
/s/ Vanessa J. Carroll VANESSA J. CARROLL, MS Bar No. 102736 vanessa.carroll@splcenter.org CORRIE COCKRELL, MS Bar No. 102376 corrie.cockrell@splcenter.org JODY E. OWENS, II, MS Bar No. 102333 jody.owens@splcenter.org Southern Poverty Law Center 111 E. Capitol St., Suite 280 Jackson, MS 39201 601-948-8882 (telephone) 601-948-8885 (fax)
JERRI KATZERMAN AZ Bar No. 013895* jerri.katzerman@splcenter.org Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8320 (telephone) 334-956-8481 (fax) *Admitted pro hac vice
JIM COMSTOCK-GALAGAN LA Bar No. 05880* jgalagan@sdlcenter.org Southern Disability Law Center 4431 Canal St. New Orleans, LA 70119 504-486-8982 (telephone) 504-486-8947 (fax) *Admitted pro hac vice
WENDELL HUTCHINSON, MS Bar No. 99178 whutchinson@drms.ms Disability Rights Mississippi 210 E. Capitol St., Suite 600 Jackson, MS 39201 601-968-0600 (telephone) 601-968-0665 (fax)
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CERTIFICATE OF SERVICE I, Vanessa Carroll, hereby certify that a true and correct copy of the foregoing document was filed electronically. Notice of this filing will be sent by electronic mail to all parties by the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System. SO CERTIFIED, this 17th day of September, 2012.
/s/Vanessa J. Carroll VANESSA J. CARROLL, MSB # 102736 Southern Poverty Law Center 111 East Capitol Street, Suite 280 Jackson, MS 39201 Telephone: (601) 948-8882 Facsimile (601) 948-8885 vanessa.carroll@splcenter.org
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 Case 3:12-cv-00474-DPJ-FKB Document 12 Filed 10/04/12 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

_________________________________________

)

E.H., by and through his next friend, Lula Henry; )

J.P., by and through his next friend, Joe Nemeka )

Paige; and R.T., by and through his next friend, )

Dawn Traxler; on behalf of themselves and all )

similarly situated students,

)

)

Plaintiffs, )

)

v.

)

)

MISSISSIPPI DEPARTMENT OF EDUCATION, )

)

Defendant. )

)

_________________________________________ )

Case No. 3:12cv00474-DPJ-FKB

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I. INTRODUCTION

Plaintiffs E.H., J.P., and R.T., on behalf of themselves and hundreds of similarly situated

special education students in the Jackson Public School District (“JPS”), have filed a class action

complaint seeking declaratory and injunctive relief under the Individuals with Disabilities

Education Improvement Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq. to compel the

Defendant Mississippi Department of Education (“MDE”) to comply with its statutory duty to

ensure that they receive a free appropriate public education (“FAPE”). Plaintiffs seek to

represent a class defined as:

All JPS students with disabilities who were included as class members in the September 2010 IDEA administrative complaint styled as A.M. v. Jackson Public Schools, or who would currently meet the definition of a class member as established in that administrative matter, which consists of IDEA eligible students with emotional disabilities and IDEA eligible students who manifested behavior

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issues and were subjected to three or more disciplinary removals1 from JPS and/or placement in an alternative school setting in JPS during the course of a single school year. Am. Compl. ¶17. Rule 23(c)(1) of the Federal Rules of Civil Procedure states that the court shall determine whether the action is to be maintained as a class action “at an early practicable time” after the commencement of an action. Oscar Private Equity Invs. v. Allegiance Telecom, Inc., 487 F.3d 261, 267 (5th Cir. 2007), abrogated on other grounds by Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2186 (2011). Plaintiffs respectfully submit this memorandum in support of their Motion for Class Certification. This case is ideally suited to proceed as a class action because the Plaintiffs and the entire class are similarly aggrieved by Defendant’s failure to ensure the implementation of policies and procedures within JPS that are a necessary prerequisite for them to receive the FAPE they are entitled to receive under the IDEA. Courts recognize that class actions are particularly appropriate in cases such as this that seek systemic reform of a governmental agency’s standardized policies and practices. See Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975) (“[T]he 23(b)(2) class action is an effective weapon for an across-the-board attack against systematic abuse.”), disapproved in part on other grounds by Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978). Plaintiffs do not seek any individual relief, and instead seek permanent injunctive relief and corresponding declaratory relief to remedy Defendant’s wholesale abdication of its responsibility to ensure that JPS has the necessary infrastructure in place to deliver FAPE to Plaintiffs and the class. Granting Plaintiffs’ motion for class certification will resolve this suit with speed, consistency and fairness to all parties.
1 Disciplinary removals are defined as in-school suspension, out-of-school suspension, and undocumented illegal removals from school.
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II. STATEMENT OF FACTS On September 8, 2010, Plaintiff E.H.2 and a class of similarly situated students
eligible for services under the IDEA filed a systemic state administrative complaint with MDE against JPS pursuant to 34 C.F.R. § 300.151-153. See Exhibit 1, Systemic State Administrative Complaint against JPS 1-2, Sept. 8, 2010 (hereinafter “Administrative Complaint”). The Administrative Complaint was filed on behalf of a class of students that included IDEA eligible students with emotional disabilities and IDEA eligible students who manifested behavior issues and were subjected to three or more disciplinary removals from JPS and/or placement in an alternative school setting in JPS during the course of a single school year. Id. Plaintiff E.H. and the other named petitioners3 filed the Administrative Complaint to address individual and systemic violations of the IDEA by JPS which resulted in the denial of FAPE to Plaintiff E.H., the petitioners and all similarly situated students. Id. at 5-41. The Administrative Complaint alleged the following individual and systemic violations of the IDEA by JPS:
a) Denial of FAPE by failing to provide petitioners and similarly situated students with appropriate levels of related services;
b) Denial of FAPE by failing to comply with the IDEA’s discipline regulations with regard to functional behavioral assessments (“FBA”), behavior intervention plans (“BIP”), and manifestation determination reviews (“MDR”);
c) Denial of FAPE by failing to confer meaningful educational benefit;
2 The September 8, 2010 Administrative Complaint included several other named petitioners, who have moved, left the District or are not otherwise named in this case. 3 Use of the term petitioner is intended to refer to the individual students who filed the original Administrative Complaint on September 8, 2010 on behalf of themselves and all similarly situated students.
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d) Denial of FAPE by failing to comply with the substantive and procedural requirements governing the development and implementation of individualized education programs (“IEP”);
e) Denial of FAPE by failing to provide educational services for petitioners and similarly situated students in the least restrictive environment;
f) Denial of FAPE by failing to provide petitioners and similarly situated students with necessary and appropriate transition services;
g) Denial of FAPE by failing to provide petitioners and similarly situated students with necessary and appropriate extended school year (“ESY”) services.
Id. at 5. Plaintiff E.H., the other petitioners and a class of similarly situated students alleged that these violations resulted in a cycle of unlawful removals from the classroom environment and punishment for behaviors related to their disabilities, and deprived them of the ability to make positive academic gains. Id. at 6-7.
As required by the IDEA under 34 C.F.R. § 300.152, MDE investigated the Administrative Complaint and issued a report with its findings and decision on November 22, 2010. See Exhibit 2, MDE Office of Special Education, Findings and Decision with Regards to the State Administrative Complaint Against JPS, Nov. 22, 2010 (hereinafter “Findings and Decision”). MDE’s investigation substantiated each of the violations alleged by E.H. and the other petitioners, and confirmed that the violations were systemic throughout JPS, resulting in the denial of FAPE to E.H. and similarly situated students. Id. at 3, 6-13, 16-20, 24, 25. MDE ordered JPS to submit a corrective action plan (“CAP”) to MDE within 30 days, and provided JPS with a technical advisor to assist JPS with developing an appropriate CAP. See Exhibit 3, Letter from T. Bradley, Bureau Director, MDE Office of Special Education, to C. Cockrell,
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Attorney, Southern Poverty Law Center and L. Edwards, Superintendent, JPS (Nov. 22, 2010). MDE made it clear that JPS must take both individual and systemic corrective action to correct the individual and systemic violations identified by MDE in its investigation. See Exhibit 2, Findings and Decision at 3-5, 8-12, 14, 15, 17-19, 21-24, 26.
Despite MDE’s directive that JPS consult with the technical advisor in developing a CAP, JPS refused to work with the technical advisor and deliberately excluded the technical advisor from the majority of the corrective actions listed in the CAP that JPS submitted to MDE on December 21, 2010. Am. Compl. ¶ 37. JPS’ CAP suffered from several glaring deficiencies and failed to address several of MDE’s findings. Am. Compl. ¶ 38. Despite these deficiencies, MDE took no corrective action against JPS and allowed JPS to proceed under a deficient CAP for several months. Am. Compl. ¶¶ 39-40. JPS’ open defiance to MDE escalated, and JPS refused to grant the technical advisor access to JPS’ premises to conduct a follow-up monitoring visit on April 18, 2011. Am. Compl. ¶ 42. MDE acquiesced to this defiance, and rescheduled the monitoring visit for late May 2011 – six months after MDE issued its initial Findings and Decision. Am. Compl. ¶¶ 42, 43.
MDE again allowed six months to elapse and waited until mid-November 2011 to schedule another follow-up monitoring visit. Am. Compl. ¶ 46. MDE then waited until January 13, 2012 – two months after the deadline for JPS to correct all areas of noncompliance – to issue its follow-up monitoring report. Am. Compl. ¶ 46. The monitoring report detailed the same individual and systemic violations identified in the November 22, 2010 Findings and Decision. See Exhibit 4, Letter from T. Bradley, Bureau Director, MDE Office of Special Education, to Dr. J. Sargent, Superintendent, JPS (Jan. 13, 2012); Exhibit 5, MDE, Follow-up Monitoring Evaluation Report on Services for Students with Disabilities 3-18 (Nov. 15-16, 2011)
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(hereinafter November Follow-up Monitoring Report). In over one year, JPS had failed to correct a single area of noncompliance. See Exhibit 5, November Follow-up Monitoring Report 3-18.
MDE conducted another follow-up monitoring visit on April 18-20, 2012, and issued a report on May 15, 2012. MDE acknowledged that JPS had made a minor effort to develop policies and procedures and provide training to staff. See Exhibit 6, Letter from T. Bradley, Bureau Director, MDE Office of Special Education, to Dr. J. Sargent, Superintendent, JPS (May 15, 2012). However, a review of student files indicated that JPS had completely failed to implement the newly promulgated policies and procedures. See Exhibit 6, Letter from T. Bradley to Dr. J. Sargent (May 15, 2012); Exhibit 7, MDE, Follow-up Monitoring Evaluation Report on Services for Students with Disabilities (Apr. 18-20, 2012) (hereinafter April Follow-up Monitoring Report). As a result, JPS still had not resolved the original violations dating back to November 2010. Id. Rather than taking meaningful corrective action to address JPS’ ongoing defiance and noncompliance, MDE requested more of the same by simply ordering JPS to submit yet another CAP, even though JPS has consistently produced deficient CAPs. See Exhibit 6, Letter from T. Bradley to Dr. J. Sargent (May 15, 2012).
JPS remains in noncompliance with MDE’s November 22, 2010 Findings and Decision, even though the deadline for correcting all areas of noncompliance passed almost one year ago. MDE is ultimately responsible for ensuring that Plaintiffs and the class receive FAPE. 20 U.S.C. § 1412(a)(1), (11)(A). However, MDE’s monitoring and enforcement continues to be insufficient and inadequate, and Plaintiffs and the class continue to suffer the denial of FAPE as a result of MDE’s failure to enforce its November 22, 2010 Findings and Decision. Am. Compl. ¶¶ 50, 54.
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III. THE PROPOSED CLASS MEETS THE STANDARD FOR CLASS CERTIFICATION.
A class should be certified under Rule 23(a) of the Federal Rules of Civil Procedure when:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. These requirements are generally referred to as “numerosity, commonality, typicality, and adequacy.” DeLeon-Grandaos v. Eller and Sons Trees, Inc., 497 F.3d 1214, 1220 (11th Cir. 2007) (quoting Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001)). Plaintiffs seeking class certification must establish all of the elements of Rule 23(a), as well as at least one element of Rule 23(b). See M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012). Rule 23(b)(2) permits class certification in cases where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” As set forth below, Plaintiffs here have satisfied all of the requirements of Rule 23(a) and have established that this case is appropriate for certification under Rule 23(b)(2). A. The Class is so Numerous that Joinder of All Members is Impracticable. Rule 23(a) requires the assessment of two components: the number of class members and the practicability of joining all members of the class. Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981) (“The proper focus is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.”) In order to satisfy the first component, there is no set number above or below which a class is considered sufficiently numerous to make joinder impracticable. See Mullen v. Treasure
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Chest Casino, LLC, 186 F.3d 620, 624-25 (5th Cir. 1999) (“[T]he number of members in a proposed class is not determinative of whether joinder is impracticable . . . .”) However, the Fifth Circuit has found that a class numbering between 100 and 150 members “is within the range that generally satisfies the numerosity requirement.” Id. Typically, a class numbering more than forty members “should raise a presumption that joinder is impracticable.” Id. (quoting 1 Newberg on Class Actions § 3.05, at 3-25 (3d ed. 1992)). See also Jones, 519 F.2d 1090, 1100, n. 18 (5th Cir. 1975) (class of 48 members may be appropriate for certification); Jack v. Am. Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974) (per curiam) (class of 51 members may be appropriate for certification); R.P.-K. ex rel. C.K. v. Dep’t of Educ., Hawaii, 272 F.R.D. 541, 547 (D. Hawaii, Mar. 15, 2011) (finding class of “several hundred students” with disabilities sufficient to satisfy numerosity requirement).
The class in this case is sufficiently numerous to make joinder impracticable. According to Defendant’s own data, JPS enrolled 2,871 IDEA eligible students with disabilities during the 2011-2012 school year. See Exhibit 8, MDE, District Data Profile Report for JPS 1 (Jan. 20, 2012), available at http://www.mde.k12.ms.us/docs/sped-11-12-district-data-profiles/jacksonpub lic_2520.pdf?sfvrsn=3. Approximately 240 of these students are eligible for special education services due to an emotional disturbance, making them members of the proposed class. Id. The class is further enlarged by the hundreds of students with disabilities who have received three or more disciplinary removals and/or placement in an alternative school setting during the course of a single school year. Am. Compl. ¶ 18. During the 2009-2010 school year, over 200 students with disabilities in JPS were expelled or received ten or more days of out-of-school suspension. See Exhibit 9, JPS, The Children’s First 2009-2010 Annual Report 1 (2010), available at http://www.jackson.k12.ms.us/about/2011_testscores/mde_dashboard.pdf. Since then, JPS has
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suspended students with disabilities at even higher rates, adding more students to the proposed class. Am. Compl. ¶ 18. See also Exhibit 7, April Follow-up Monitoring Report at 16-17 (showing that in 2010-2011, 3.1% of students with disabilities at the middle school level received 10 or more days of out-of-school suspension, and in 2011-2012, this percentage jumped to 11.1% of students with disabilities.) The class in this case therefore consists of more than 300 students – a size sufficient to make joinder presumptively impracticable.
On the second part of the Rule 23(a) inquiry, “[p]racticability of joinder depends on size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980). In particular, the inclusion of future, unknown class members will make joinder impracticable. Jack, 498 F.2d at 124 (where class includes “unnamed, unknown future” class members “joinder of unknown individuals is certainly impracticable.”) See also Jones, 519 F.2d at 1100 (“Smaller classes are less objectionable where . . . the plaintiff is seeking injunctive relief on behalf of future class members as well as past and present members.”)
The class here most definitely includes future, unknown students, thus rendering joinder impracticable. Throughout the school year, students in JPS may become eligible for IDEA services due to an emotional disturbance, and students with an emotional disturbance may transfer into the District. Further, students already identified as eligible for IDEA services may join the class if they experience three or more disciplinary removals and/or placement in JPS’ alternative school. The proposed class therefore consists of future, unknown members, making joinder in this case particularly impracticable. The class therefore satisfies the requirement of Rule 23(a)(1).
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B. The Class Shares Common Questions of Law and Fact. To satisfy Rule 23(a)(2), Plaintiffs must establish that “there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.” Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997). More specifically, the class members’ claims “must depend upon a common contention . . . . [that] must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” WalMart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). See also M.D., 675 F.3d at 840. A class representative must further demonstrate that the class members “have suffered the same injury.” Wal-Mart Stores, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Commonality is easily met in cases such as this that seek only declaratory and injunctive relief to remedy a defendant’s standardized course of conduct. Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). See also McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 488-92 (7th Cir. 2012) (reversing denial of class certification in disparate impact case and finding class treatment appropriate because claims implicated company-wide policies); Corey H. v. Bd. of Educ. of City of Chicago, 92 C 3409, 2012 WL 2953217, at *7 (N.D. Ill. July 19, 2012) (declining to decertify class in IDEA case noting that commonality is met because plaintiffs “have attacked only systemic failures and district-wide policies that apply to every member of the certified class . . . .”); N.B. ex rel. Buchanan v. Hamos, 11 C 6866, 2012 WL 1953146, at *9 (N.D. Ill. May 30, 2012) (commonality met “where discrimination results from a defendant’s standardized conduct toward proposed class members, such as generalized policies that affect all class members the same way.”) (quoting Ligas ex rel.
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Foster v. Maram, No. 05 C 4331, 2006 WL 644474, at *3 (N.D. Ill. Mar. 7, 2006); Anderson v. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 461-462 (E.D. Pa. 1998) (“commonality is easily established in cases seeking injunctive relief.”); 7A Charles A. Wright, Federal Practice and Procedures. 1763, 226 (3d ed. 2005) (“class suits for injunctive and declaratory relief by their very nature often present common questions satisfying Rule 23(a)(2).”).
The requirement that the class representatives establish questions of law or fact common to the class as a whole does not mean that individual differences among class members will defeat commonality. The inquiry should focus on the uniformity of the defendant’s actions or inactions. See Lightbourn, 118 F.3d at 426 (class of individuals with different disabilities requiring different accommodations satisfied commonality requirement because all were impacted by the same governmental inaction); Lane v. Kitzhaber, 3:12-CV-00138-ST, 2012 WL 3322680, at *10 (D. Or. Aug. 6, 2012) (differences in the needs of individuals with disabilities does not preclude certification); Chester Upland Sch. Dist. v. Pennsylvania, CIV A 12-132, 2012 WL 1473969, at *4 (E.D. Pa. Apr. 25, 2012) (finding that individualized education plans do not preclude certification of a class when claims are directed to practices that result in the denial of FAPE to the entire class); Gray v. Golden Gate Nat’l Recreation Area, 279 F.R.D. 501, 508-10 (N.D. Cal. 2011) (commonality met by general policies and practices of failing to address access barriers in ADA case despite differing types and levels of disabilities of class members). Similarly, Rule 23(a)(2) does not require that class members’ injuries stem from an identical reason or cause. D.L. v. Dist. of Columbia, 277 F.R.D. 38, 45-46 (D. D.C. 2011) (rejecting defendants’ claim that Wal-Mart requires that class members’ injury must stem from a common cause and finding denial of FAPE to constitute a sufficiently common injury to certify a class of IDEA eligible students). Class treatment is appropriate when plaintiffs challenge systemic
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practices that cause systemic harm. McReynolds, 672 F.3d at 488-92 (class certification appropriate even if individual employee decisions may also be a factor.)
Plaintiffs easily satisfy the commonality requirement because their claims share the following common contentions that are capable of classwide resolution:
1) Whether Defendant is ultimately responsible for ensuring the provision of FAPE to Plaintiffs and the class;
2) Whether Defendant has failed to properly execute its general supervisory responsibilities, including its monitoring and enforcement obligations, as set forth in the IDEA, and;
3) Whether Defendant’s failure to properly execute its general supervisory responsibilities and enforce its November 22, 2010 Findings and Decision has violated Plaintiffs’ right under the IDEA to receive a free appropriate public education.
Resolution of these questions will produce a “common answer” because these contentions all arise from a standardized course of conduct: MDE’s complete failure to enforce its November 22, 2010 Findings and Decision finding that JPS denied FAPE to E.H. and all similarly situated students – the very same students that compose the class here.
As the state educational agency (“SEA”), MDE is responsible for ensuring that JPS follows the mandates of the IDEA and provides all eligible students with FAPE. 20 U.S.C. § 1412(a)(1), (11)(A); Am. Compl. ¶¶ 5, 31. MDE is responsible for implementing policies and procedures to ensure that local educational agencies (“LEA”) like JPS are monitored for implementation and compliance with the IDEA. 20 U.S.C. §1412(a)(11). When the SEA identifies areas of noncompliance, it must ensure that noncompliance is corrected as soon as
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possible, and in no case later than one year after the State’s identification of noncompliance. 34 C.F.R. § 300.600(e). MDE has assured the U.S. Department of Education that it is capable of ensuring that LEAs like JPS are in compliance with the IDEA, and that eligible students receive FAPE. See Exhibit 10, MDE, Annual State Application Under Part B of the IDEA for Federal Fiscal Year 2012, available at http://www.mde.k12.ms.us/docs/sped-informationpage/2012_State_Application.doc?sfvrsn=2. (hereinafter “Part B Application”). MDE has further assured the U.S. Department of Education that it is capable of enforcing administrative decisions like the one it rendered on November 22, 2010. See id.
MDE has completely abrogated this duty with respect to the proposed class. By MDE’s own admission, JPS has failed to provide FAPE to the exact same class that is seeking certification in this matter.4 MDE made this determination on November 22, 2010, and had no difficulty treating the Administrative Complaint as a class complaint, and ordered JPS to undertake classwide relief in the form of a systemic CAP. See generally Exhibit 2, Findings and Decision. According to MDE’s own reports, JPS remains in violation of the IDEA by failing to provide FAPE to the class. See Exhibit 7, April Follow-up Monitoring Report. Significantly, MDE noted that the ongoing denial of FAPE to the class is the result of JPS’ failure to implement corrective policies and procedures. See Exhibit 6, Letter from T. Bradley to Dr. J. Sargent (May 15, 2012). MDE’s own monitoring reports demonstrate that JPS does not have the requisite infrastructure to ensure the provision of FAPE on a classwide basis. See Exhibit 4, Letter from T. Bradley, to Dr. J. Sargent, (Jan. 13, 2012); Exhibit 5, November Follow-up
4 The original Administrative Complaint filed on September 8, 2010 was filed on behalf of: “A.M., A.L., and a Class of All Similarly Situated and Treated Students with Emotional Disabilities as well as on behalf of E.H., T.A., P.A., C.O., and a Class of All Similarly Situated Special Education Students who manifest behavioral issues and are subject to three or more disciplinary removals (either In-School Suspensions, Out-of-School Suspensions and undocumented, illegal removals from school – ‘cool off removals’) and/or placement in an alternative school setting in the Jackson Public School System (JPSS).” Exhibit 1, Administrative Complaint at 1-2.
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Monitoring Report; Exhibit 6, Letter from T. Bradley to Dr. J. Sargent (May 15, 2012); Exhibit 7, April Follow-up Monitoring Report. However, despite having the authority and responsibility under the IDEA to take the action that JPS has failed to take, MDE has allowed the systemic denial of FAPE to persist for close to two years. Am. Compl. ¶¶ 2, 5, 22, 50, 51, 54. MDE has failed to ensure that JPS implements the policies and procedures necessary to remedy the denial of FAPE to Plaintiffs and the entire class. Id. MDE is therefore liable for the denial of FAPE experienced by the Plaintiffs and the proposed class. See St. Tammany Parish Sch. Bd. v. Louisiana, 142 F.3d 776, 784 (5th Cir. 1998) (finding that SEA is ultimately responsible for the provision of FAPE and may be held liable for failing to do so.)
MDE’s failure to enforce a decision finding that JPS denied FAPE to E.H. and the proposed class provides the “glue” that unites Plaintiffs’ factual and legal claims and furnishes a common answer to why Plaintiffs continue to suffer the denial of FAPE. See Wal-Mart, 131 S. Ct. at 2552 (“Without some glue holding the alleged reasons for all those decisions together, it will be impossible to . . . produce a common answer to the crucial question . . . .”) (emphasis in original); D.L., 277 F.R.D. at 46 (“[P]laintiffs have presented significant proof or ‘glue’ binding together the various reasons why individual class members were denied a FAPE – namely, ‘systemic failures’ within defendants’ education system.”) (internal citation omitted). Unlike the plaintiffs in Wal-Mart who could not attribute the alleged discrimination to any particular corporate policy or practice, Wal-Mart, 131 S. Ct. at 2556, the Plaintiffs here can very clearly trace their continued denial of FAPE to MDE’s failure to take action to enforce its November 22, 2010 Findings and Decision. As the Fifth Circuit stated in M.D., “a pattern or practice of agency action or inaction – including a failure to correct a structural deficiency within the agency . . . .” can be sufficient to generate a common class claim. 675 F.3d at 847. This is precisely the issue
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here. Plaintiffs need MDE to ensure that the proper infrastructure exists within JPS so that Plaintiffs and the class have the opportunity to receive FAPE. Unless and until MDE reverses its internal policy of inaction with respect to JPS, Plaintiffs and the class will continue to suffer the denial of FAPE.
Plaintiffs have also alleged a common injury: the unremedied denial of the free appropriate public education guaranteed to them by the IDEA caused by MDE’s failure to enforce its own decision. Am. Compl. ¶¶ 6-8, 19, 20, 56, 63, 65, 73, 75, 82, 87. While the WalMart decision “further defined the contours” of the class certification analysis, M.D., 675 F.3d at 837, cases alleging systemic violations of the IDEA resulting in the denial of FAPE remain appropriate for class certification. See, e.g. D.L., 277 F.R.D. at 45-46 (certification appropriate in case alleging systemic denial of FAPE); Chester Upland Sch. Dist., 2012 WL 1473969 at *4 (same). Here, Plaintiffs satisfy the commonality requirement because all of the Plaintiffs have suffered the same injury, and this injury is attributable to Defendants’ across-the-board failure to enforce its November 22, 2010 Findings and Decision. Am. Compl. ¶¶ 19, 20, 56, 65, 75, 87.
Plaintiffs’ common contention that they have been denied FAPE due to MDE’s failure to enforce its November 22, 2010 Findings and Decision is susceptible to class wide resolution and may be addressed “in one stroke.” Wal-Mart, 131 S. Ct. at 2551. Plaintiffs do not need, and do not request, individualized relief to satisfy the claims presented in this case. The class’ injuries will be remedied in this case through MDE’s enforcement of its November 22, 2010 Findings and Decision, in which MDE ordered systemic relief. This may be achieved through a single injunction from this Court ordering MDE to correct the systemic violations of the IDEA identified in the November 22, 2010 Findings and Decision. As discussed above, MDE has assured the U.S. Department of Education that it is capable of ensuring the provision of FAPE to
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all students with disabilities, and that it is capable of enforcing the IDEA and correcting noncompliance identified in LEAs within one year. See Exhibit 10, Part B Application. MDE’s own prescription of systemic relief in its November 22, 2010 Findings and Decision is further evidence that this case is appropriate for class treatment and the claims are amenable to classwide relief. See, e.g., Exhibit 2, Findings and Decision at 3 (“JPSS shall develop specific strategies and procedures for ensuring [the provision of related services] . . . .”), at 4 (“JPSS shall develop and implement consistent, district-wide behavioral procedures for gathering data . . . .”), at 10 (“JPSS shall develop and implement written strategies for consistently monitoring student behavioral progress . . . .”). MDE is therefore capable of delivering the injunctive relief requested by Plaintiffs, and this injunctive relief will be responsive to all of Plaintiffs’ contentions.
Finally, this case is readily distinguishable from a recent Seventh Circuit decision decertifying a class of special education students alleging violations of the IDEA’s “child find” mandate. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481 (7th Cir. 2012). The plaintiffs in Jamie S. attempted to bind together distinct and individual claims that had to be “answered separately for each child based on individualized questions of fact and law, and . . . [with] answers . . . unique to each child’s particular situation.” Id. at 498. In contrast, the Plaintiffs here “can show that they share some question of law or fact that can be answered all at once and that the single answer to that question will resolve a central issue in all class members’ claims. Id. at 497 (emphasis in original). The denial of FAPE in this case is attributable to a single, readilyidentifiable cause: MDE’s failure to enforce its November 22, 2010 Findings and Decision. Cf. N.B., 2012 WL 1953146, at *9 (“[T]he absence of standardized policies for implementing community placements required by the integration mandate may itself be actionable . . . .
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[C]ommon issues arise where ‘defendants have acted, or have failed to act, uniformly toward the proposed class based on their policies and lack of policies in place.’”) (citing Ligas, 2006 WL 644474, at *3.) MDE has assured the U.S. Department of Education that it is capable of enforcing the IDEA on a systemic level, see Exhibit 10, Part B Application, and that is all the Plaintiffs ask them to do here.
Plaintiffs have satisfied the commonality requirement of Rule 23(a)(2) because they have identified common contentions, a common injury, and the common contentions are susceptible to classwide relief through a single injunction ordering MDE to enforce its November 22, 2010 Findings and Decision. The proposed class therefore satisfies the commonality requirement of Rule 23(a)(2).
C. The Claims of the Named Plaintiffs are Typical of the Class. The test for typicality “is not demanding.” Mullen 186 F.3d at 625. Typicality focuses on “whether the class representative’s claims have the same essential characteristics of those of the putative class.” Sitrman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002) (quoting James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001). The test for typicality is not that the claims of the named individuals be identical to the claims of the other class members, but rather, that the class representatives must “possess the same interest and suffer the same injury.” Gen. Tel. Co. of Sw., 457 U.S. at 156 (citing E. Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403 (1977), quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)). As explained more fully in supra section III (B), Plaintiffs’ claims are typical of those of the class because they have all suffered the same injury: the unremedied denial of FAPE stemming from MDE’s failure to enforce its November 22, 2010 Findings and Decision. Am. Compl. ¶¶ 6-8, 19, 20, 56, 63, 65, 73, 75, 82, 87. Moreover, this common injury is traceable to
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the same cause – Defendant’s failure to abide by its duty under the IDEA to ensure the provision of FAPE to the entire class. Plaintiffs’ claims and the claims of the class therefore have the same characteristic. See D.L., 277 F.R.D. at 46 (finding typicality where named plaintiffs’ claims all relate to the common issues of defendants’ violation of their right to FAPE.) The claims of the Plaintiffs and the class clearly share the same essential characteristics, and therefore satisfy the typicality requirement.
D. The Class Representatives and Counsel Fairly and Adequately Represent the Interests of the Class.
To determine adequacy of representation under Rule 23(a)(4), the Court should consider whether the named plaintiffs and the class possess the same interests. See Mullen, 186 F.3d at 625-26. The named plaintiffs are inadequate only if differences between the named plaintiffs and the class create conflicts of interest. Id. at 626. The Court should also consider “[1] the zeal and competence of the representative[s’] counsel and…[2] the willingness and ability of the representative[s] to take an active role in and control the litigation and to protect the interests of absentees.” Stirman, 280 F.3d at 563 (quoting Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001)).
Plaintiffs and undersigned counsel will fairly and adequately protect the interests of the class. As explained more fully in supra Section III (B), Plaintiffs and the class possess an identical interest in MDE enforcing its November 22, 2010 Findings and Decision so that they may receive FAPE. Am. Compl. ¶¶ 1, 6-8, 22, 63, 73, 82, 87. Further, no conflicts exist between the Plaintiffs and the class, and they do not have any antagonistic or divergent interests. Compl. ¶ 21. Plaintiffs are committed to active participation in this litigation, and are committed to protecting their interests and the interests of unnamed class members. Id. Finally, Plaintiffs’ counsel is fully qualified and prepared to pursue this action on behalf of the class. See Exhibit
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11, Declaration of Vanessa Carroll. The Southern Poverty Law Center, Disability Rights Mississippi, and the Southern Disability Law Center are experienced at litigating class action cases. Id. In addition, the Southern Poverty Law Center has sufficient financial and human resources to litigate this matter. Id. See also http://splcenter.org/who-we-are/financialinformation (annual report and audited financial statement). For these reasons, the adequacy requirement of Rule 23(a)(4) is satisfied.
E. This Action Meets the Requirements of Rule 23(b)(2). Rule 23(b)(2) “applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 131 S. Ct. at 2557. See also M.D., 675 F.3d at 845 (holding that proposed class seeking “at least twelve broad, classwide injunctions” to be inappropriate for certification under Rule 23(b)(2)). The Fifth Circuit has interpreted the language of Rule 23(b)(2) to mean that “(1) the ‘class members must have been harmed in essentially the same way’ . . . and (2) ‘the injunctive relief sought must be specific.’” M.D., 675 F.3d at 845 (quoting Maldonado v. Oschner Clinic Found., 493 F.3d 521, 524) (internal citations omitted). This case is appropriate for certification under Rule 23(b)(2) because Plaintiffs are not seeking any form of individualized relief, but are instead seeking one injunction and corresponding declaratory relief to compel Defendant to enforce its November 22, 2010 Findings and Decision so that Plaintiffs and the class may receive FAPE. Am. Compl. ¶ 22. Unlike the plaintiffs in Jamie S., the Plaintiffs and the class here do not seek individualized injunctive relief such as compensatory education services, and the relief requested by Plaintiffs will not “merely initiate a process through which highly individualized determinations of liability and remedy are made . . . .” Jamie S., 668 F.3d at 499. Indeed, the Defendant has assured the U.S. Department
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of Education of its ability to enforce the IDEA, see Exhibit 10, Part B Application. Moreover, Defendant’s own November 22, 2010 Findings and Decision affirms the existence of systemic deficiencies within JPS causing a systemic denial of FAPE, and MDE has described and ordered a systemic remedy. See Exhibit 2, Findings and Decision. Plaintiffs are merely asking MDE to enforce its systemic decision and implement the policies and procedures that are necessary to ensure the provision of FAPE to Plaintiffs and the class. See Lane, 2012 WL 3322680, at *15 (Rule 23(b)(2) certification appropriate where injunctive relief “focuses on defendants’ conduct . . . by modifying the way defendants fund, plan, and administer the existing . . . service system.”) Accordingly, this Court can resolve Plaintiffs’ claim with a “single stroke” by compelling MDE to comply with the IDEA and enforce its November 22, 2010 Findings and Decision.
Plaintiffs have also been harmed in the same way by Defendant’s failure to correct already-identified systemic violations of the IDEA within JPS. The mere fact that Plaintiffs have individualized education plans does not preclude certification when, as is the case here, the claims are directed at practices that result in the denial of FAPE to the entire class. See Chester Upland Sch. Dist., 2012 WL 1473969, at *4. Similar to the Plaintiffs in Chester Upland Sch. Dist., “Plaintiffs are not seeking individualized determinations such as whether the District provided the exact services delineated under each child’s IEP.” Id. Rather, Plaintiffs are instead seeking correction of Defendant’s unlawful policy and practice of failing to monitor JPS and enforce the IDEA so as to ensure the provision of FAPE to Plaintiffs and members of the class. See M.D., 675 F.3d at 847 (rejecting defendants’ argument that class may only be maintained if claims are based on a specific policy that uniformly affects all class members in the same way, and stating that “the class claims could conceivably be based on an allegation that the State
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engages in a pattern or practice of agency action or inaction . . . .”). Certification of this class
pursuant to Rule 23(b)(2) is therefore appropriate.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request that this Court
certify a Plaintiff class consisting of all JPS students with disabilities who were included
as class members in the September 2010 IDEA Administrative Complaint styled as A.M.
v. Jackson Public Schools, or who would currently meet the definition of a class member
as established in that administrative matter, which consists of IDEA eligible students with
emotional disabilities and IDEA eligible students who manifested behavior issues and
were subjected to three or more disciplinary removals from JPS and/or placement in an
alternative school setting in JPS during the course of a single school year. In addition, the
Plaintiffs respectfully request that this Court appoint the Southern Poverty Law Center,
Disability Rights Mississippi, and the Southern Disability Law Center as co-class counsel
in this action pursuant to Rule 23(g). RESPECTFULLY SUBMITTED, this the 4th day of October, 2012.
/s/ Vanessa J. Carroll VANESSA J. CARROLL, MS Bar No. 102736 vanessa.carroll@splcenter.org CORRIE COCKRELL, MS Bar No. 102376 corrie.cockrell@splcenter.org JODY E. OWENS, II, MS Bar No. 102333 jody.owens@splcenter.org Southern Poverty Law Center 111 E. Capitol St., Suite 280 Jackson, MS 39201 601-948-8882 (telephone) 601-948-8885 (fax)
JERRI KATZERMAN AZ Bar No. 013895* jerri.katzerman@splcenter.org
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Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8320 (telephone) 334-956-8481 (fax) *Admitted pro hac vice JIM COMSTOCK-GALAGAN LA Bar No. 05880* jgalagan@sdlcenter.org Southern Disability Law Center 4431 Canal St. New Orleans, LA 70119 504-486-8982 (telephone) 504-486-8947 (fax) *Admitted pro hac vice WENDELL HUTCHINSON, MS Bar No. 99178 whutchinson@drms.ms Disability Rights Mississippi 210 E. Capitol St., Suite 600 Jackson, MS 39201 601-968-0600 (telephone) 601-968-0665 (fax)
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CERTIFICATE OF SERVICE I, Vanessa Carroll, hereby certify that a true and correct copy of the foregoing document was filed electronically. Notice of this filing will be sent by electronic mail to all parties by the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System. SO CERTIFIED, this 4th day of October, 2012.
/s/Vanessa J. Carroll VANESSA J. CARROLL, MSB # 102736 Southern Poverty Law Center 111 East Capitol Street, Suite 280 Jackson, MS 39201 Telephone: (601) 948-8882 Facsimile (601) 948-8885 vanessa.carroll@splcenter.org
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 Case 3:12-cv-00474-DPJ-FKB Document 17 Filed 11/01/12 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

_________________________________________

)

E.H., et al.

)

Plaintiffs, )

)

Case No. 3:12cv00474-DPJ-FKB

v.

)

)

MISSISSIPPI DEPARTMENT OF EDUCATION, )

)

Defendant. )

_________________________________________ )

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiffs E.H., J.P., and R.T., on behalf of themselves and hundreds of similarly situated

special education students in the Jackson Public School District (“JPS”), have filed a class action1 complaint seeking declaratory and injunctive relief under the Individuals with Disabilities

Education Improvement Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq. to compel the

Defendant Mississippi Department of Education (“MDE”) to comply with its statutory duty to

ensure that they receive a free appropriate public education (“FAPE”). Amended Complaint,

filed Sept. 17, 2012, ECF No. 7. Over two years ago, MDE investigated JPS’ special education

program and thereafter determined that JPS failed to comply with numerous provisions of the

1 Plaintiffs seek to represent a class defined as:
All JPS students with disabilities who were included as class members in the September 2010 IDEA administrative complaint styled as A.M. v. Jackson Public Schools, or who would currently meet the definition of a class member as established in that administrative matter, which consists of IDEA eligible students with emotional disabilities and IDEA eligible students who manifested behavior issues and were subjected to three or more disciplinary removals from JPS and/or placement in an alternative school setting in JPS during the course of a single school year.
See Plaintiffs’ Memorandum of Law in Support of Motion for Class Certification 1-2, filed Oct. 4, 2012, ECF No. 12.

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IDEA and denied FAPE to E.H. and all other similarly situated students, including putative class members. Despite having the authority and obligation under federal law to ensure the correction of these violations in a timely fashion, MDE has abdicated its statutory responsibility and has permitted individual and systemic violations of the IDEA to persist, resulting in the ongoing denial of FAPE to Plaintiffs and hundreds of other special needs students.
As determined by MDE, Plaintiffs have already lost years of educational opportunities. Many class members are at a critical learning stage and cannot risk the loss of yet another year of academic instruction. Plaintiffs are therefore compelled to seek preliminary injunctive relief from this Court that will require Defendant MDE to properly exercise its monitoring and enforcement authority to bring JPS into prompt and full compliance with the IDEA, including the appointment of an independent administrator to oversee the provision of special education services to students with disabilities within Jackson Public Schools.2 Plaintiffs easily satisfy the requirements for a preliminary injunction. This Court should therefore grant Plaintiffs’ Motion. II. STATUTORY AND LEGAL FRAMEWORK
In 1975, Congress enacted what is now called the IDEA to end the longstanding failure of schools to meet the educational needs of students with disabilities. 20 U.S.C. § 1400(c)(2). The statute is aimed at correcting the historic exclusion of students with disabilities from the classroom, and ensuring the provision of an appropriate education to all students with disabilities. 20 U.S.C. § 1400(d). To achieve this goal, state educational agencies (“SEA”) such as MDE must ensure that local educational agencies (“LEA”) have policies and procedures in
2 Upon information and belief, Jackson Public Schools and the Defendant have recently entered into a memorandum of understanding that purports to begin to address some of the areas of non-compliance identified in 2010. Given JPS’ long history of defiance and the Defendant’s demonstrated failure to follow through with prescribed corrective action, the current efforts are insufficient to fully ameliorate Plaintiffs’ claims.
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place to ensure that students with disabilities receive a free appropriate public education. 20 U.S.C. § 1412(a)(1)(A)3; 34 C.F.R. § 300.101(a).4
The IDEA establishes a system of procedural and substantive requirements to which the SEA must adhere to ensure that each child with a disability receives a free appropriate public education. The SEA must ensure that all eligible students receive an IEP that is developed, reviewed and revised to confer meaningful educational benefit. 20 U.S.C. § 1412(a)(4); 20 U.S.C. § 1414(d). The IEP must include, among other things, a statement of the child’s present levels of academic achievement and functional performance, a statement of measurable annual goals, a statement of the special education and related services, and supplementary aids and services to be provided to the child to help him/her participate in the general curriculum and make progress in the general curriculum and toward achieving his/her annual goals. 20 U.S.C. § 1414(d)(1)(A)(i). The IDEA requires that for children 14 years of age and older, their IEP includes a transition plan that identifies the child’s post-secondary goals and identifies the services needed to assist the child in reaching those goals. 34 C.F.R. § 300.320(b); State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act
3 20 U.S.C. § 1412(a)(1)(A) states: A State is eligible for assistance under this subchapter for a fiscal year if the State submits a plan that provides assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets each of the following conditions: (1) Free appropriate public education (A) In general A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.
4 34 C.F.R. §300.101(a) states: General. A free appropriate public education must be available to all children residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school, as provided for in § 300.530(d).
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Amendments of 2004, State Board Policy 7219, § 300.320(b). The SEA must also ensure that extended school year services (“ESY”) are available and provided to those children deemed eligible for ESY services. 34 C.F.R. § 300.106; State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004, State Board Policy 7219, § 300.106; State Board of Education Policy 7212. The child’s IEP team is required to review the child’s IEP periodically to determine whether the annual goals for the child are achieved and revise the IEP as appropriate to address any lack of progress toward annual goals and in the general curriculum. 20 U.S.C. § 1414(d)(4). The SEA is also obligated to ensure that children with disabilities are provided with the necessary supplementary aids and services to allow them to be educated in their least restrictive environment (“LRE”), meaning that children with disabilities should receive services in a setting where they are able to interact with nondisabled children to the maximum extent appropriate. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a).
The SEA must ensure that children with disabilities are afforded the procedural safeguards described by the IDEA when disciplinary action is contemplated. Prior to being subject to a disciplinary removal lasting more than ten days, a district must convene a manifestation determination review (“MDR”) to review all relevant information in the student’s file, including the IEP, teacher observations and information provided by the parent/guardian to determine if the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability or if the conduct in question was the direct result of the school’s failure to implement the IEP. If it is determined that the behavior is a result of the school’s failure to implement the IEP, immediate action must be taken to remedy any deficiencies with the school’s implementation of the IEP. 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e). Children who
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are subject to disciplinary removals that amount to more than ten days for behavior that is a manifestation of their disability must also receive a functional behavioral assessment (“FBA”), behavior intervention plan (“BIP”) and modifications to address the behavior violation so that it does not recur. 20 U.S.C. § 1415(k)(1)(D)(ii). The SEA must ensure that IEPs include consideration of positive behavioral interventions and supports for students who exhibit behavior problems that impede their learning or that of others. 20 U.S.C. § 1414(d)(3). Finally, the IDEA also requires the state to examine data from local school districts to determine if significant discrepancies exist in the rates of suspensions and expulsions of children with disabilities. If discrepancies exist, the state must review and revise its policies, procedures and practices relating to the development of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards to ensure that the state is in compliance with the IDEA. 20 U.S.C. § 1412(a)(22); 34 C.F.R. § 300.170.
As the SEA, MDE is ultimately responsible for ensuring that JPS follows the mandates of the IDEA and provides all eligible students with FAPE. 20 U.S.C. § 1412(a)(1), (11)(A). The SEA must establish procedures for individuals to file complaints with the SEA regarding individual and systemic violations of the IDEA by an LEA. 34 C.F.R. § 300.151(a). The SEA is required to investigate these complaints, and, if noncompliance is found, must ensure that appropriate corrective action is taken to redress both individual and systemic IDEA violations and ensure that appropriate services are provided to children with disabilities thereafter. 34 C.F.R. §§ 300.151-153, § 600(e). When the SEA identifies areas of noncompliance, it must ensure that noncompliance is corrected as soon as possible, and in no case later than one year after the State’s identification of noncompliance. 34 C.F.R. § 300.600(e). The SEA is also responsible for providing FAPE directly to students when an LEA is unable to establish and
5

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maintain programs of FAPE in compliance with the IDEA. 20 U.S.C. § 1413(g); 34 C.F.R. § 300.227(a)(1)(ii). III. STATEMENT OF FACTS
A. History of the Administrative Complaint. On September 8, 2010, Plaintiff E.H.5 and a class of similarly situated students filed a systemic state administrative complaint with MDE against JPS pursuant to the IDEA. 34 C.F.R. § 300.151-153. See Exhibit 1, Systemic State Administrative Complaint against JPS (Sept. 8, 2010) (hereinafter “Administrative Complaint”). The Administrative Complaint was filed on behalf of a class of IDEA eligible students with emotional disabilities, as well as IDEA eligible students who manifested behavior issues and were subjected to three or more disciplinary removals from JPS and/or placement in an alternative school setting in JPS during the course of a single school year. Id. at 1-2. Plaintiff E.H. and the other named petitioners6 filed the Administrative Complaint to address individual and systemic violations of the IDEA by JPS which resulted in the denial of FAPE to Plaintiff E.H., the petitioners and all similarly situated students. Id. at 5-41. The Administrative Complaint alleged the following individual and systemic violations of the IDEA by JPS:
a) Denial of FAPE by failing to provide petitioners and similarly situated students with appropriate levels of related services7;
5 The September 8, 2010 Administrative Complaint included several other named petitioners who have moved, left the District or are not otherwise named in this case. 6 Use of the term “petitioner” is intended to refer to the individual students who filed the original Administrative Complaint on September 8, 2010 on behalf of themselves and all similarly situated students. 7 Related services are defined in the IDEA and include:
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b) Denial of FAPE by failing to comply with the IDEA’s discipline regulations with regard to FBAs, BIPs, and MDRs;
c) Denial of FAPE by failing to confer meaningful educational benefit; d) Denial of FAPE by failing to comply with the substantive and procedural
requirements governing the development and implementation of individualized education programs (“IEP”); e) Denial of FAPE by failing to provide educational services for petitioners and similarly situated students in the least restrictive environment; f) Denial of FAPE by failing to provide petitioners and similarly situated students with necessary and appropriate transition services; g) Denial of FAPE by failing to provide petitioners and similarly situated students with necessary and appropriate extended school year (“ESY”) services. Id. at 5. Plaintiff E.H., the other petitioners and a class of similarly situated students alleged that these violations resulted in a cycle of unlawful removals from the classroom environment and punishment for behaviors related to their disabilities, and deprived them of the ability to make meaningful academic and/or behavioral gains. Id. at 6-7.
[T]ransportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 1401(26)(A).
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B. MDE’s Findings and Decision. As required by the IDEA, MDE’s Office of Special Education conducted an onsite investigation at JPS on October 14, 15, 20, and 22, 2010. See Exhibit 2, MDE Office of Special Education, Findings and Decision with Regards to the State Administrative Complaint Against JPS at 2 (Nov. 22, 2010) (hereinafter “Findings and Decision”). The investigation involved a review of each petitioners’ records for the 2009-2010 and 2010-2011 school terms, a review of the records of seventeen randomly selected students with disabilities who received three or more discipline removals and/or who were placed in the District’s alternative school during the 20092010 school term. Id. MDE’s investigation substantiated each of the violations alleged by E.H. and the other petitioners, and confirmed that the violations were systemic throughout JPS, resulting in the denial of FAPE to E.H. and similarly situated students. Id. at 3, 6-13, 16-20, 24, 25. In particular, MDE noted the following violations: a) JPS failed to provide petitioners and similarly situated students with appropriate related services. Id. at 3. MDE noted that all of the petitioners “presented with a previous history of behavioral concerns. However, given their ongoing behavior concerns, a remarkable number of case files revealed little or no evidence of direct Related Services to address the students’ specific behavioral and/or emotional concerns.” Id. MDE found that none of the named petitioners received any related services. Id. Only one student of the seventeen randomly selected cases had received related services, and in that case the level of related services was inadequate. Id. MDE concluded that “it is evident that JPSS has failed to address the ongoing pattern of behavioral and/or emotional concerns of the student cases reviewed by not providing these students with meaningful and direct
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Related Services. JPSS has denied a FAPE to the Petitioners as evidenced by their failure to provide appropriate levels of related services.” Id. b) JPS denied a FAPE to petitioners and similarly situated students by failing to comply with the IDEA discipline regulations. Id. at 8. In particular, MDE noted that none of the petitioners’ or randomly selected FBAs included “meaningful and quantifiable data that would accurately describe the students’ present levels of behavioral performance . . .” making it impossible to determine if “behavior improvements were realized after the implementation of a BSP.” Id. at 6. MDE documented several other flaws with FBAs, and noted that JPS failed to conduct FBAs prior to placing students at the alternative school, despite “patterns of misconduct that would have warranted an FBA prior to the disciplinary infractions leading to placement in [the alternative school.]” Id. at 6-7. MDE also stated that the behavioral support plans8 (“BSP”) of petitioners and similarly situated students were wholly ineffective, JPS lacked documentation to prove that BSPs were actually implemented, and JPS continued to rely on removing students from instruction and/or school to address behavioral concerns, rather than utilizing the strategies outlined in the student BSPs. Id. at 8-9. c) JPS denied FAPE to petitioners and similarly situated students by failing to meaningfully and appropriately update and revise IEPs. Id. at 11. MDE noted that a review of all petitioners’ and randomly selected files revealed that JPS failed to “frequently gather, summarize and review meaningful data necessary for effectively monitoring student behavioral progress during intervention . . . prior to continued misconduct/discipline removals.” Id. at 10. Instead, JPS convened IEP committee meetings simply to consider
8 The terms “Behavioral Support Plans” and “Behavioral Intervention Plans” are used interchangeably throughout.
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and approve a student’s removal to the alternative school. Id. MDE concluded that “such practices question the validity as to whether the students’ IEPs had been effectively implemented, as there are no data to evaluate student progress and/or whether planned behavioral supports were, in fact, implemented as designed.” Id. at 11. d) JPS denied FAPE to petitioners and similarly situated students by failing to conduct MDRs in conformance with IDEA mandates. Id. at 12. In particular, MDE noted that the MDR documentation revealed that JPS failed to consider whether a student’s BSP had been implemented with fidelity prior to changing the student’s placement. Id. at 11. MDE also noted that JPS’ failure to provide related services “rais[ed] questions as to whether student conduct would have been in question if the students had previously received adequate and necessary Related Services supports.” Id. at 12. e) JPS failed to provide petitioners and similarly situated students with meaningful educational benefits and in turn denied them FAPE. Id. at 14. In particular, MDE noted that JPS failed to obtain data on students’ basic reading, math and writing skills, and therefore had no accurate assessment of students’ present levels of performance. Id. at 13. JPS relied inappropriately on classroom grades, even in cases where students failed one or more academic subjects. Id. MDE noted that “[t]hese data alone are highly suggestive that these students are not realizing a measure of meaningful educational (academic) benefits. Furthermore, when considering this pattern of continued failure among cases reviewed, coupled with the fact that many of these students have academic skills well below expected levels for their age and grade placement, such a combination is highly predictive that such students will likely continue to struggle and may be placed in more restrictive, self-contained settings and will ultimately likely fail to receive a
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meaningful educational outcome.” Id. at 13. MDE also noted that JPS failed to provide students with appropriate remedial or compensatory academic interventions to address their lack of academic progress, and failed to demonstrate that students obtained any benefit from their BSPs. Id. at 14. f) JPS “denied FAPE by failing to comply with the requirements for developing and implementing IEPs, specifically by failing to properly align student academic goals and objectives with actual levels of student performance.” Id. at 17. In particular, MDE noted that “although many students continued to experience academic failure, there was no evidence that JPSS increased academic supports necessary to increase the likelihood of academic success . . . and/or adjust the curriculum expectations to be consistent with the students’ present functioning levels . . . .” Id. at 16. MDE also noted that JPS’ failure to properly align student goals with their levels of performance likely exacerbated students’ behavioral challenges. Id. at 16-17. g) JPS denied FAPE to petitioners and similarly situated students by “failing to comply with the requirements for developing and implementing IEPs, specifically by failing to consider positive behavioral interventions and supports.” Id. at 18. Although JPS included some positive recommendations in student BSPs, “there was either limited or no evidence available to consistently monitor student progress in response to intervention and/or no data or documentation evident to validate that such strategies were implemented as planned and with adequate levels of fidelity.” Id. h) JPS denied FAPE to petitioners and similarly situated students by “failing to comply with the requirements for developing and implementing IEPs, specifically by failing to convene IEP Committee meetings and revise Petitioners’ and other defined Class
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members’ IEPs to address a lack of academic/behavioral progress.” Id. at 19. MDE noted that student files contained no meaningful data that IEP committees could use to measure behavioral or academic progress, and then revise IEPs as necessary to address that lack of progress. Id. i) JPS denied FAPE to petitioners and similarly situated students by failing “to provide appropriate levels of supports necessary for ensuring services in the students’ LRE.” Id. at 20-21. In particular, MDE noted that district-wide data demonstrated a disparity in class members “being disproportionally placed in more restrictive settings.” Id. at 20. MDE also acknowledged that “Related Services, behavioral supports and supplemental and/or intensive academic remediation are vital components of individualized educational programming for students with disabilities to minimize the need for restrictive placements.” Id. j) JPS denied FAPE to petitioners and similarly situated students “by their failure to provide adequate and meaningful transition planning and supports.” Id. at 24. In particular, MDE noted that “in 100% of cases, there was insufficient and/or non-meaningful transition plans evident in student IEPs that would predict a clear course of action necessary for successful school to work/community transitions.” Id. k) JPS denied FAPE to petitioners and similarly situated students by failing to “consistently gather pertinent data necessary for accurately determining the need for ESY and/or failure to provide ESY services.” Id. at 25. MDE ordered JPS to submit a corrective action plan (“CAP”) within 30 days, and provided JPS with a technical advisor, Fluency Plus, to assist JPS with implementing the corrective actions and compensatory services ordered in MDE’s Findings and Decision. See
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Exhibit 3, Letter from T. Bradley, Bureau Director, MDE Office of Special Education, to C. Cockrell, Attorney, Southern Poverty Law Center and L. Edwards, Superintendent, JPS (Nov. 22, 2010). MDE made it clear that JPS was required to take both individual and systemic corrective action to remedy the individual and systemic violations identified by MDE in its investigation. See Exhibit 2, Findings and Decision at 3-5, 8-12, 14, 15, 17-19, 21-24, 26. MDE also notified JPS that federal regulations require the correction of all deficiencies within twelve months of initial notification, and that JPS must correct all areas of noncompliance no later than November 22, 2011. See Exhibit 3, Letter from T. Bradley to C. Cockrell and L. Edwards.
C. MDE’s Failure to Ensure Correction of Individual and Systemic Violations. JPS submitted a CAP to MDE on December 21, 2010. See Exhibit 4, JPS, MDE OSE Monitoring Visit/Corrective Action Plan, Systemic State Administrative Complaint/IDEA of 2004, 2010-2011 (Dec. 21, 2010) (hereinafter “December 2010 CAP”). Despite MDE’s directive to work collaboratively with Fluency Plus “to assist JPSS with implementation of the Corrective Actions and Compensatory Services required by the Decision,” see Exhibit 3, Letter from T. Bradley to C. Cockrell and L. Edwards, JPS excluded Fluency Plus from all of the corrective actions listed in the CAP. See generally Exhibit 4, December 2010 CAP (Fluency Plus is not listed once in the column marked “Person(s) Responsible/Resources”). JPS also defiantly mischaracterized MDE’s substantiated findings as mere “allegations” throughout the CAP, id., and outright refused to take some of the corrective actions required by MDE. See, e.g., id. at 4-5 (“The Jackson Public School District takes issue with requirement to provide Compensatory Related Services. Compensatory Related Services will be considered on an individual basis . . . . Compensatory Related Services will be provided as determined by the IEP Committee and in compliance with the requirements under IDEA.”). JPS also limited much of
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the corrective action to the provision of additional training, and designated its own personnel to provide the training – the same personnel responsible for the systemic violations documented in MDE’s Findings and Decision. See generally Exhibit 4, December 2010 CAP.
MDE disregarded the obvious deficiencies with JPS’ December 2010 CAP. MDE did not provide JPS with any written feedback on its CAP, nor did MDE require JPS to revise its CAP. Rather, MDE permitted JPS to proceed under a deficient CAP for several months. Exhibit 5, Testimony of Dr. Ken Swindol, In Re Jackson Public School District Show Cause Hearing, Commission on School Accreditation 165:2-9 (Apr. 26, 2011) (hereinafter “Swindol Testimony”) (“We were hired by the State Department of Education on November 22, 2010 to do a records review for the Jackson Public Schools. So we did that. We compiled a report. And at that point we really didn’t hear anything. And we went back to the Jackson Public Schools on January 25th.”). Although MDE and Fluency Plus held a meeting with JPS on January 25, 2011, see Exhibit 6, MDE, Updated Timeline for Jackson Public School District (Apr. 5, 2012), MDE waited until September 2011 to request a revised CAP from JPS, and waited until late September 2011 to provide JPS with written feedback on the CAP from Fluency Plus. See Exhibit 7, JPS, Systemic State Administrative Complaint/IDEA of 2004, 2010-2011 – Revised September 9, 2011 (Sept. 9, 2011) (hereinafter “September 9, 2011 Revised CAP”); Exhibit 8, MDE, Summary of MDE/OSE Review of JPS’ Revised Improvement Plan (Sept. 26, 2011).
Despite ongoing deficiencies with JPS’ September 9, 2011 Revised CAP,9 MDE did not call upon Fluency Plus to provide JPS with technical assistance to ensure prompt correction of
9 In its September 26, 2011 Review of JPS’ September Revised CAP, MDE documented significant deficiencies with the corrective actions proposed by JPS for each area of noncompliance. See Exhibit 8, Summary of MDE/OSE Review of JPS’ Revised Improvement Plan at 1(“[T]he revised Improvement Plan does not include any explanation of the types of data or how the District will gather and report the data to ensure accountability and/or to monitor progress toward resolving” the failure to provide appropriate levels of related services. ); at 2 (“[T]here are no clear procedures included in the revised Improvement Plan specifically describing how the District will ensure ongoing fidelity and accountability for FBA/BIP development and/or implementation, as well as, how and what data will be
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all identified IDEA violations. See Exhibit 5, Swindol Testimony at 199:4-8 (“And when we offered our September 26th response for an improvement plan . . . we never heard anything back. So we weren’t called again, except to do another file review, not provide technical assistance.”). With less than two months remaining for JPS to correct all of the individual and systemic violations, MDE permitted JPS to continue to operate under a CAP that MDE knew to be incapable of correcting the individual and systemic violations identified in MDE’s Findings and Decision.
In addition to ignoring the deficiencies in JPS’ original December 2010 CAP, MDE also failed to ensure that JPS actually received and benefitted from Fluency Plus’ technical assistance. Although the IDEA includes technical assistance as one of an SEA’s enforcement mechanisms, 34 C.F.R. § 300.600(a)(3), § 300.604(a)(1), MDE limited Fluency Plus’ role to conducting periodic, rote file reviews that did not result in the provision of actual technical assistance to JPS. See Exhibit 5, Swindol Testimony at 168:10-13 (testifying that Fluency Plus never really worked with JPS); at 181:18-20 (“we never got the baseline data that we . . . wanted to get . . . .”); at 189:12-14 (“we really have had no contact in terms of providing technical assistance.”); at 199:4-8 (“And when we offered our September 26th response for an improvement plan . . . we never heard anything back. So we weren’t called again, except to do another file review, not provide technical assistance.”); at 208:19-24 (testifying that MDE never called Fluency Plus
gathered and evaluated to determine whether progress has been made toward resolving this area of noncompliance.”); 3 (“[T]he revised Improvement Plan fails to include specifically how and what data will be gathered internally to ensure that MDRs are conducted appropriately and how data may be used to measure ongoing progress toward resolving this area of noncompliance.”); at 4 (“The revised Improvement Plan does not address previous corrective actions mandated by MDE/OSE in the November 22, 2010 Findings and Decision. Specifically, MDE/OSE mandated Compensatory/Remedial Services . . . .”); at 5 (“[T]here are no provisions in the revised Improvement Plan of what data to collect and how the data will be systematically gathered to ensure FAPE.”); at 6 (“[T]he revised Improvement Plan fails to indicate data sources that are used for ensuring students with disabilities receive FAPE in the LRE and/or monitoring progress toward resolving the current status of this area of noncompliance.”); at 7 ([T]here is no specific mention of what data will be collected and how it will be collected and maintained to ensure appropriate transition planning . . . .”).
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back to JPS and that Fluency Plus would have returned to provide technical assistance had MDE requested it); Exhibit 9, Testimony of Dr. Tawny McCleon, In Re Jackson Public School District Show Cause Hearing, Commission on School Accreditation 35:1-4 (May 21, 2012) (hereinafter “McCleon Testimony”) (testifying that Fluency Plus did not achieve its purpose of providing technical assistance to JPS). MDE was fully aware that JPS resisted working with Fluency Plus. See Exhibit 10, Letter from A. Moore, Associate State Superintendent, MDE, to Dr. J. Sargent, Superintendent, JPS 2 (Sept. 26, 2011).10 Despite this open defiance, MDE waited until September 2011 to remind JPS of its responsibility to work with Fluency Plus, and even then MDE failed to follow through to ensure that JPS received any technical assistance. Id. Consequently, two years have elapsed without JPS actually receiving the technical assistance necessary to correct the individual and systemic violations identified by MDE in its November 2010 Findings and Decision.
MDE also permitted substantial periods of time to elapse before it made any arrangements for Fluency Plus to return to JPS to monitor JPS’ implementation of the CAP. See Exhibit 6, Updated Timeline (showing that MDE waited until April 18, 2011 to schedule an onsite follow-up visit). Even then, JPS interrupted the monitoring visit on the first day and instructed Fluency Plus to cease reviewing student files and leave JPS’ premises. See id. (“District asked the team to leave on day one”); Exhibit 5, Swindol Testimony at 172:5-8 (“We were doing the file request. We had been through some of the records. And then we were called
10 In this letter, MDE noted: For the past several months the Fluency Plus team has met with resistance from JPS staff members when the team has been present in the District to conduct follow-up visits and assist with writing the Improvement Plan. This lack of cooperation from JPS staff members has put the District in a precarious situation for correcting the noncompliance within the twelve month timeframe allowed by IDEA.
Exhibit 10, Letter from A. Moore to Dr. J. Sargent at 2.
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into the office, and they said that they didn’t want us to look at any more records.”). MDE acquiesced to this defiance and rescheduled its monitoring visit for May 25-27, 2011 – six months after MDE initially issued its Findings and Decision. See Exhibit 6, Updated Timeline.
Following the May 25-27, 2011 follow-up monitoring visit, Fluency Plus submitted a lengthy report to MDE documenting numerous ongoing IDEA violations for all of the named petitioners, including E.H. Once again, MDE did absolutely nothing to facilitate the provision of technical assistance to JPS to correct the individual and systemic violations documented again in May 2011. See Exhibit 5, Swindol testimony at 173:8-12 (“And then on 5/25, we went in with those protocols and did the actual review that was halted the first time. And then after that we weren’t in the District.”).
MDE again allowed six months to elapse and waited until mid-November 2011 to schedule another follow-up monitoring visit. See Exhibit 6, MDE, Updated Timeline (showing that MDE conducted an on-site follow-up visit on November 15-16, 2011). This follow-up visit revealed that JPS had failed to implement any of the necessary corrective actions, and had failed to correct the individual violations for a single one of the original nine petitioners. See Exhibit 11, Letter from T. Bradley, Bureau Director, MDE Office of Special Education, to Dr. J. Sargent, Superintendent, JPS (Jan. 13, 2012) (“Despite the District’s recent efforts of developing policies and procedures and providing the required training sessions, the implementation outcomes have not been achieved to resolve the noncompliance identified fifteen months ago in the Findings and Decision.”); Exhibit 9, McCleon Testimony at 30:19-31:14 (testifying that none of the original petitioners had been cleared of noncompliance at the time of the November follow-up monitoring visit). MDE then waited until January 13, 2012 – two months after the deadline for JPS to correct all areas of noncompliance – to issue its follow-up monitoring report. See Exhibit
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11, Letter from T. Bradley to Dr. J. Sargent, Superintendent; Exhibit 12, MDE, Follow-up Monitoring Evaluation Report on Services for Students with Disabilities 3-18 (Nov. 15-16, 2011) (hereinafter “November Follow-up Monitoring Report”). Once again, MDE did not direct Fluency Plus to provide JPS with any technical assistance to respond to the violations identified during the November 2011 follow-up monitoring visit. See Exhibit 5, Swindol Testimony at 173:17-20 (“Then we were called on 11/15 to do another file review. And then we were recently called last week to do another file review on 4/18.”).
Instead, MDE permitted JPS to remain in noncompliance, and permitted the original petitioners and similarly situated students to be denied FAPE for over one year. MDE conducted another follow-up monitoring visit on April 18-20, 2012, and issued a report on May 15, 2012. MDE acknowledged that JPS had made a minor effort to develop policies and procedures and provide training to staff. See Exhibit 13, Letter from T. Bradley, Bureau Director, MDE Office of Special Education, to Dr. J. Sargent, Superintendent, JPS (May 15, 2012). However, a review of student files indicated that JPS had made absolutely no improvement since November 2011 because it had still completely failed to implement any of the required corrective actions. Id. (“[W]hile much time and effort have been exerted by District personnel to develop policies and procedures and to provide the various training sessions, the missing component in almost every area of noncompliance is directly related to a lack of policy/procedure implementation of the District’s own policies and procedures or a failure to document evidence confirming implementation.”); Exhibit 14, MDE, Follow-up Monitoring Evaluation Report on Services for Students with Disabilities (Apr. 18-20, 2012) (hereinafter “April Follow-up Monitoring Report”). As a result, JPS still had not resolved the original individual and systemic violations dating back to November 2010. See Exhibit 13, Letter from T. Bradley to Dr. J. Sargent.
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Additionally, the April Follow-up Monitoring Report documented that JPS was suspending students with disabilities at increasingly disproportionate rates and that the disproportionality was actually greater than it was at the time of the filing of the September 2010 Administrative Complaint. See Exhibit 14, April Follow-up Monitoring Report at 16-17 (showing that in 20102011, 3.1% of students with disabilities at the middle school level received 10 or more days of out-of school suspension, and in 2011-2012, this percentage jumped to 11.1% of students with disabilities.) Once again, MDE failed to take meaningful corrective action to remedy JPS’ ongoing noncompliance and simply ordered JPS to submit yet another CAP, despite JPS’ demonstrated failure for over one year to draft and implement an adequate CAP. See Exhibit 13, Letter from T. Bradley to J. Sargent.
D. Accreditation Proceedings. In January 2012, MDE reported JPS to the Office of Accreditation for accreditation sanctions – an action that did absolutely nothing to ensure the provision of FAPE to the original petitioners and similarly situated students. On April 26 and May 21, 2012, the Commission on School Accreditation held a hearing to determine JPS’ accreditation status, and decided to grant JPS an extension until November 1, 2012 to correct all of the violations and come into full compliance with the IDEA or lose its accreditation. See Exhibit 15, Mississippi Commission on School Accreditation, Notice of Commission Action (May 31, 2012). The Commission made this decision despite testimony from Fluency Plus that JPS’ violations are so systemic and JPS is so far behind in implementing appropriate corrective action that it will take JPS at least a year, if not more, to come into full compliance. See Exhibit 5, Swindol Testimony at 182:3-5 (stating that it will take JPS a minimum of three years to obtain full compliance); Exhibit 9, McCleon Testimony at 34:19-21 (stating that JPS could come into compliance within one year “if
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everyone is on the same page and committed to doing that.”). Despite this testimony, MDE made no further demands on JPS and made no further provision for additional technical assistance and/or oversight of JPS’ implementation of corrective action.
Following MDE’s decision to grant JPS an extension on its accreditation status, JPS has undertaken several purported corrective actions that will actually exacerbate JPS’ systemic violations. For instance, despite repeated admonishment from MDE that removing students with disabilities from the classroom and placing them in restrictive segregated settings violates the IDEA, JPS proposed creating two new segregated settings for students with disabilities in the 2012-2013 school year. See Exhibit 16, Memorandum from Dr. F. Addison, Interim Director, Office of Exceptional Education Services, JPS, to A. Moore, Director, Office of Special Education, MDE 1-2 (June 4, 2012). One such segregated setting is a day treatment program, isolated from other mainstream schools within JPS that would serve only students with emotional disabilities. Id.at 1. Students in this day treatment program would not even have the benefit of receiving live instruction and would not have a real, much less a highly qualified, teacher in their classroom. Id. Instead, JPS proposed providing some of its most academically vulnerable students with instruction via video streaming from other classrooms. Id.
JPS has also proposed creating a separate alternative school program to serve only students with disabilities. Id. at 1-2. Further, JPS informed MDE that it plans to place full time psychologists and behavioral support specialists in the alternative school and day treatment program to provide students with disabilities with more intensive behavioral interventions. Id. at 1. However, JPS has not taken any action to make these vital services and the increased staffing available to students in regular education classrooms and regular neighborhood school settings to prevent their removal to more restrictive settings. Rather than implementing measures to
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improve student behavior and reduce the need for segregated placements, JPS has merely expanded the array of segregated settings it may use, and has thus further incentivized the exclusion of students with disabilities from the classroom. This is evidence of MDE’s ongoing failure to follow through to ensure that JPS complies with the IDEA.
Since issuing its May 31, 2012 accreditation decision, MDE has continued in its pattern of permitting JPS to resist technical assistance and evade compliance with the IDEA. MDE approved a new CAP from JPS, even though JPS developed the CAP without the assistance of Fluency Plus and the CAP contains several substantial deficiencies. Similar to previous CAPs, the July 2012 CAP fails to include corrective actions to address all of the original areas of noncompliance,11 and also marginalizes the role of Fluency Plus, includes insufficient training and technical assistance, fails to actively involve an MDE technical advisor who will constantly monitor the implementation and effectiveness of the CAP, and fails to adequately address the systemic nature of the IDEA violations identified by MDE in its investigations and follow up reports for the past twenty months. See Exhibit 17, JPS, Corrective Action Plan (July 18, 2012) (hereinafter “July 2012 CAP”). Once again, MDE has permitted JPS to move forward with a CAP that is incapable of correcting the individual and systemic violations documented almost two years ago, and that is incapable of ensuring the provision of FAPE to Plaintiffs and the class. Now, nearly two years after the filing of the original administrative complaint, JPS and MDE have reluctantly entered into a memorandum of understanding that only purports to address some of Plaintiffs’ concerns and offers no direct relief to the affected students. See http://mpbonline.org/News/article/737jackson_public_school_board_makes_deal_to_keep_accre
11 For instance, the July 2012 CAP fails to include corrective actions to address JPS’ failure to ensure that students receive appropriate levels of related services. Compare Exhibit 17, July 2012 CAP with Exhibit 2, MDE Findings and Decision at 3-6.
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ditation. (last accessed Oct. 31, 2012). This gesture provides Plaintiffs with absolutely no assurance that they will finally receive the education they are entitled to receive by federal law. IV. ARGUMENT
In the Fifth Circuit, a party must establish the following four elements to receive a preliminary injunction: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). The “determination as to whether a set of circumstances warrant such relief rest[s] in the discretion of the district court.” Taylor v. Corinth Pub. Sch. Dist., 917 F. Supp. 464, 467 (N.D. Miss. 1996) (citing Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974)). Plaintiffs easily satisfy all four of these requirements.
A. There is a Substantial Likelihood that Plaintiffs will Prevail on the Merits. To satisfy the first element – “a substantial likelihood of success on the merits” – a
plaintiff “is not required to prove entitlement to summary judgment.” Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009). Instead, in making its determination about the likelihood of success on the merits, a court will evaluate “standards provided by the substantive law.” Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir.1990). When a plaintiff seeks a preliminary injunction with IDEA serving as the underlying source of substantive law, the plaintiff must make a “necessary showing of a justiciable issue presented under the IDEA.” Schares v. Katy Indep. Sch. Dist., 252 F. Supp. 2d 364, 366 (S.D. Tex. 2003). A plaintiff must also provide something “more than [a] bare allegation” of a violation of an IDEA provision in order to
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establish a substantial likelihood of success on the merits. Comb v. Benji's Special Educ. Acad., Inc., 745 F. Supp. 2d 755, 771 (S.D. Tex. 2010).
Plaintiffs will easily prevail on their claim that MDE has violated their rights under the IDEA by failing to ensure that they receive FAPE. Indeed, MDE has already conceded that Plaintiffs and the proposed class have been denied FAPE for two years. See Exhibit 2, Findings and Decision; Exhibit 12, November Follow-up Monitoring Report; Exhibit 14, April Follow-up Monitoring Report; Defendant’s Memorandum of Authorities Supporting Response in Opposition to Motion for Class Certification 4, filed Oct. 25, 2012, ECF No. 15 (“[MDE] substantiated all of the findings in the administrative complaint.”). As discussed in section III supra, MDE determined in November 2010 that JPS had violated the IDEA and denied FAPE to Plaintiff E.H. and similarly situated students – the very same students that constitute the proposed class here – by failing to comply with numerous procedural and substantive requirements of the IDEA. According to MDE’s most recent follow-up monitoring report released in May 2012, JPS has failed to correct the individual and systemic violations of the IDEA identified by MDE almost two years earlier. Consequently, Plaintiffs and the proposed class continue to suffer the denial of FAPE in violation of the IDEA.
The IDEA also makes it clear that MDE is now legally liable for this ongoing denial of FAPE to Plaintiffs and the class. See St. Tammany Parish Sch. Bd. v. State of La.,, 142 F.3d 776, 784 (5th Cir. 1998) (The IDEA “places primary responsibility on the state educational agency” to ensure that the IDEA is carried out and eligible students receive FAPE.); Doe v. Maher, 793 F. 2d 1470, 1492 (9th Cir. 1986) (SEA responsible for providing FAPE if LEA fails to do so); Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 696 (3d Cir. 1981) (SEA has “primary responsibility” to ensure that children receive FAPE); Corey H. v. Bd. of Educ. of City of
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Chicago, 995 F. Supp. 900, 910 (N.D. Ill. 1998) (SEA liable for LEAs failure to comply with the LRE mandate of the IDEA). The plain language of the IDEA states that an SEA is responsible for ensuring that LEAs follow the mandates of the IDEA and provide all IDEA eligible students with FAPE. See 20 U.S.C. § 1412(a)(1), (11); § 1413 (g), (h)(1); Corey H., 995 F. Supp. at 905 (“[T]he provisions of the IDEA delegate to the SEAs the responsibility for compliance as well as the supervisory power to implement policies and procedures to make certain that LEAs have complied with the Act.”). MDE is responsible for implementing policies and procedures to ensure that LEAs are monitored for implementation and compliance with the IDEA. 20 U.S.C. §1412(a)(11); §1416. When the SEA identifies areas of noncompliance, it must ensure that noncompliance is corrected as soon as possible, and in no case later than one year after the State’s identification of noncompliance. 34 C.F.R. § 300.600(e) (emphasis added). The SEA is also responsible for providing FAPE directly to students when an LEA is unable to establish and maintain programs of FAPE in compliance with the IDEA. 20 U.S.C. § 1413(g); 34 C.F.R. §300.227(a)(1)(ii).
In the Corey H. case, which is similar to the one at hand, the Northern District of Illinois held the Illinois SEA liable for its failure to correct a local school district’s violations of the LRE mandate of the IDEA. Corey H., 995 F. Supp. at 909-12. The court described the SEA’s responsibilities under the IDEA as follows: “the SEA must identify LRE violations by local districts [LEAs] and follow through to ensure that such violations are corrected.”12 Id. at 910. The Court emphasized that the Illinois SEA’s monitoring of the Chicago LEA was inadequate to ensure compliance because the SEA did not take appropriate steps to ensure that the LEA took
12 The Corey H. decision also cited with approval the following decisions: Kruelle, 642 F. 2d 687; Jose P. v. Ambach, 669 F.2d 865, 870-71 (2d Cir. 1982); Cordero ex rel. Bates v. Penn. Dep’t of Educ., 795 F. Supp. 1352, 1362 (M.D. Pa. 1992), which imposed distinct responsibility and liability upon SEAs for failure to ensure that the IDEA’s statutory requirements were carried out by LEAs.
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corrective action to remedy identified IDEA violations. Id. at 916 (“Thus while the [SEA] may correctly identify some LRE violations, it does not direct the school district [LEA] to take any effective corrective action . . . . This clearly violates the [SEA’s] responsibility under IDEA to ensure LRE compliance by the local district.”)
The Corey H. decision has direct applicability in the present case because in both situations “the evidence demonstrates that the State [MDE] took few if any actions to ‘ensure’ that these failures [FAPE denials] were corrected, and in fact consciously allowed [JPS] to continue violating the [IDEA] mandate.” Id. at 910. As discussed in Section III, supra MDE permitted JPS to use a blatantly deficient CAP for close to one year before requesting that JPS make necessary revisions to the CAP, and MDE approved another deficient CAP as recently as July 2012. MDE also made no effort to follow through to ensure that JPS actually received meaningful technical assistance from Fluency Plus, and has allowed two years to elapse without JPS receiving any technical assistance to correct the individual and systemic violations. See Cordero, 795 F. Supp. at 1362 (“As defined by the IDEA, the state’s role amounts to more than creating and publishing some procedures and then waiting for the phone to ring. The IDEA imposes on the state an overarching responsibility to ensure that the rights created by statute are protected, regardless of the actions of local school districts.”). Consequently, JPS remains in violation of the IDEA, and Plaintiffs and the proposed class continue to suffer the denial of FAPE.
Plaintiffs have satisfied all of the elements necessary to prevail on their claim that MDE is liable for denying them the substantive guarantee to FAPE under the IDEA. MDE’s own reports have established that Plaintiffs and the class have been denied FAPE, and MDE’s failure to ensure the correction of these violations after two years makes MDE liable for the ongoing
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deprivation of FAPE to Plaintiffs and the class. Plaintiffs have presented substantially more than a “bare allegation” that MDE has violated its duties under the IDEA. Comb, 745 F. Supp. 2d at 771. Accordingly, Plaintiffs satisfy the first element required for a preliminary injunction.
B. Plaintiffs will Suffer Irreparable Harm in the Absence of a Preliminary Injunction. In order to grant a motion for preliminary injunction, a Court must find that the plaintiff
will likely suffer irreparable harm in the absence of the preliminary injunction. United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001). The plaintiff must also show “a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” Humana, Inc. v. Avram A. Jacobson, M.D., P.A., 804 F.2d 1390, 1394 (5th Cir. 1986) (internal citations omitted).
It is well established that the denial of a free appropriate public education to a child eligible for services under the IDEA constitutes irreparable harm. See N.D. ex rel. parents acting as guardians ad litem v. Haw. Dep’t of Educ., 600 F.3d 1104, 1112-13 (9th Cir. 2010) (finding that behavioral regression resulting from deprivation of educational services constitutes irreparable harm); D.D. ex rel. V.D. v. New York City Bd. of Educ., CV-03-2489, 2004 WL 633222, at *25 (E.D.N.Y. Mar. 30, 2004) (holding that failure to provide special education services to class members in a timely manner satisfies the irreparable harm standard); Blackman v. Dist. of Columbia, 277 F. Supp. 2d 71, 78 (D.D.C. 2003) (holding that failure to provide timely due process hearings results in the denial of FAPE and constitutes irreparable harm); Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 392-93 (N.D.N.Y. 2001) (holding that it is “almost beyond dispute” that the denial of FAPE constitutes irreparable harm); Borough of Palmyra Bd. of Educ. v. F.C. ex rel. R.C., 2 F. Supp. 2d 637, 645 (D.N.J. 1998) (holding that loss of FAPE constitutes irreparable harm); Skelly v. Brookfield Lagrange
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Park Sch. Dist. 95, 968 F. Supp. 385, 395-96 (N.D. Ill. 1997) (finding irreparable harm where denial of necessary transportation services would force student into restrictive homebound placement); Paul Y. ex rel. Kathy Y. v. Singletary, 979 F. Supp. 1422, 1427 (S.D. Fla. 1997) (finding “irreparable injury will be and has been suffered, since [plaintiff] has been deprived of, and continues to be deprived of, the education he and his parents allegedly desire for him.”); J.B. v. Killingly Bd. of Educ., 990 F. Supp. 57, 72 (D. Conn. 1997) (holding that prolonged denial of FAPE constitutes irreparable harm); Howard S. v. Friendswood Indep. Sch. Dist., 454 F. Supp. 634, 641 (S.D. Tex. 1978) (continued denial of FAPE will cause irreparable harm).
The denial of FAPE constitutes clear irreparable harm because the denial of FAPE results in educational deficits, and these deficits cannot be remedied through monetary damages. A.T. v. New York State Educ. Dep’t, 98-CV-4166-JG, 1998 WL 765371, at *10 (E.D.N.Y. Aug. 4, 1998) (“[Plaintiff’s] injury is actual and imminent because she is currently being deprived of the free appropriate public education to which she is entitled under IDEA. . . . In the absence of an injunction, [plaintiff] faces further damage to her development. This type of injury cannot be remedied by an award of monetary damages, which of course would not provide [plaintiffs] with the free and appropriate education that she has been denied.”). See also D.D., 2004 WL 633222, at *25 (“[A]ny developmental delays suffered as a result of further placement delays cannot be fully remedied by monetary damages.”).
Plaintiffs easily satisfy the irreparable harm standard. First, Defendant has already conceded that JPS has denied and continues to deny Plaintiffs and similarly situated students the free appropriate public education they are entitled to receive under the IDEA. As discussed in Section III, supra Defendant has documented numerous violations of the IDEA resulting in the denial of FAPE to Plaintiffs and the proposed class. Among other violations, Plaintiffs and the
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proposed class have been denied necessary related services and behavioral interventions, resulting in their disproportionate removal from the classroom and their placement in restrictive settings. See, e.g., Exhibit 2, Findings and Decision at 12 (There is “no evidence that the students had a history of receiving meaningful Related Services, raising questions as to whether student conduct would have been in question if the students had previously received adequate and necessary Related Services supports.”). Plaintiffs and the class have also been denied necessary instruction and remedial interventions to address their learning disabilities, resulting in an alarming lack of academic progress.13 See id. at 14 (“[T]here was no evidence of sensitive academic skill measures (i.e., Curriculum-based Measures) administered to measure students’ basic Reading, Math, and Writing Skills. . . . [N]o cases reviewed revealed evidence that students with academic skill deficits received direct, intensive academic skill remediation beyond the core curriculum during the 2009-2010 school term and/or who are currently receiving intensive academic interventions necessary for improving basic Reading, Math, and/or Writing skills.”); at 17 (“[A]lthough many students continued to experience academic failure, there was no evidence that JPSS increased academic supports necessary to increase the likelihood of academic success . . . and/or adjust the curriculum expectations to be consistent with the students’ present functioning levels . . . .”). MDE unequivocally stated that “it is apparent that meaningful educational benefits have not been realized for the vast majority of cases reviewed.” Id. at 14.
13 Plaintiff E.H. is a tenth grade student who is reading at a second grade level. During the three year period from 2005-2008, Plaintiff E.H. only increased his reading skills by one grade level and his math skills actually regressed. Plaintiff J.P., a sixteen year old student who is entering ninth grade for the second time, is reading at a high third grade level. Plaintiff R.T. is a fifteen year old student, performing below grade level, with an expectation that he will achieve grade level benchmarks at a mere 60% proficiency rate. The named Plaintiffs’ consistent lack of academic progress demonstrates the ongoing harm suffered as a result of MDE’s failure to ensure compliance of the IDEA within JPS.
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No amount of monetary damages will ever suffice to compensate Plaintiffs and the proposed class for the educational opportunities squandered by JPS and MDE over the past two years. The Plaintiffs’ educational deficits are real and profound, and will become increasingly severe without immediate intervention. See Sabatini v. Corning-Painted Post Area Sch. Dist., 78 F. Supp. 2d 138, 143 (W.D.N.Y. 1999) (“the longer [plaintiff] goes without receiving a FAPE, or compensatory education, the worse the situation gets. . . . The denial of a FAPE over an extended period does constitute harm, and the longer the denial continues, the more irreparable it becomes.”); Skelly, 968 F. Supp. at 396 (“Such lost days could not be replaced in [plaintiff’s] educational life.”). Indeed, JPS’ dismal graduation rate for students with disabilities14 – less than 10% – illustrates the cumulative impact of the District’s systemic violations, and foreshadows the grim academic future that awaits the Plaintiffs and the class if MDE permits the violations to continue unabated. MDE’s failure to ensure the provision of FAPE to Plaintiffs and the class has undoubtedly resulted in irreparable harm. Plaintiffs therefore satisfy the second element required for a preliminary injunction.
C. The Harm to Plaintiffs Outweighs the Potential Harm to the Defendant. In considering Plaintiffs’ motion, the Court must weigh the harm to class members
against any possible damage to the Defendant. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas, 335 F.3d 357, 363 (5th Cir. 2003); Lindsay v. City of San Antonio, 821 F.2d 1103, 1107 (5th Cir. 1987) (citations omitted). This is a mixed question of law and fact. Lindsay, 821 F. 2d at 1107. The Court must consider whether “the balance of equities tips” in the Plaintiffs’ favor in determining whether to grant a preliminary injunction.
14 See The Children’s First 2009-2010 Annual Report 1 (2010), available at http://www.jackson.k12.ms.us/about/2011_testscores/mde_dashboard.pdf. (last accessed Oct. 31, 2012).
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Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008). The decision to grant or deny a preliminary injunction is within the sound discretion of the district court and may be reversed only for a clear abuse of discretion. Allied Mktg. Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989).
The balance of equities strongly favors the Plaintiffs. The Plaintiffs are a class of students with significant disabilities who attend Jackson Public Schools who have been subjected to multiple disciplinary removals and who have been denied meaningful educational benefit from their IEPs. MDE has documented that for years, class members have been denied the educational and supportive services they need to achieve and have been forced into substandard segregated settings. As noted above, fewer than 10% of JPS’ students with disabilities graduate, and Plaintiffs E.H., J.P., and R.T. have made very little academic progress over the course of many school years. The representative plaintiffs, and many others similarly situated, have suffered repeated suspensions and are at risk of removal from their neighborhood schools to selfcontained classrooms and segregated day programs.15
The Defendant has long been aware of the problems in JPS, yet has abdicated its responsibility to correct them. As set forth in detail above, in September 2010, class members filed a state administrative complaint with MDE against JPS alleging various systemic violations of the IDEA. Following a thorough investigation, MDE substantiated all of the allegations contained in Plaintiffs’ administrative complaint. In its November Follow-up Monitoring Report, MDE confirmed that the violations of the IDEA it had identified were systemic
15 The importance of education is without question. As the Supreme Court noted, “education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all [and] has a fundamental role in maintaining the fabric of our society.” Plyler v. Doe, 457 U.S. 202, 221 (1982). These considerations are all the more critical for students with disabilities who have been hampered by low expectations and social misconceptions. 20 U.S.C. §1400(c).
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throughout JPS and had resulted in the denial of the students’ rights to a free appropriate public education.16 Despite having declared JPS to be in substantial violation of federal law, MDE has

taken no meaningful action to redress the situation though clearly obligated to do so.

Thus, while class members are threatened with unlawful removals, exclusion, and

deteriorating academic prospects, Defendant will suffer no harm from providing the preliminary

relief Plaintiffs are requesting. As the state educational agency, the Defendant bears the

ultimate responsibility for ensuring that JPS complies with the IDEA. 20 U.S.C. §1412(a). This

includes monitoring JPS’ compliance with the IDEA and ensuring that noncompliance is

corrected as soon as possible. 20 U.S.C. §§1412(a)(11), 1413(d),(g); 34 C.F.R. §300.600(e).

The Defendant receives considerable federal funding to implement these tasks. See

http://www.mde.k12.ms.us/special-education/special-education-grants-and-funding

(last

accessed on October 31, 2012). Injunctive relief is sought to ensure that the Defendant

appropriately performs its preexisting obligation to monitor and enforce the provisions of the

IDEA. 20 U.S.C. §§1412(a)(11), 1413(d),(g); 34 C.F.R. §300.600(e).

The balance of hardships clearly favors Plaintiffs in this case. Hundreds of class

members have already suffered years of educational deprivation. Many, like E.H., J.P., and R.T.,

are hanging on to their high school careers by the most slender of threads. Directing the

Defendant to properly exercise its monitoring and enforcement authority falls squarely within the

duties imposed upon the Defendants by the IDEA and for which it receives federal funding to

perform. The harm to class members here clearly outweighs any harm to Defendants.

16 Indeed, as recently as May 23, 2012, MDE confirmed that: “JPS has been found noncompliant with state and federal regulations in its Office of Special Education which includes failing to provide a free appropriate public education (FAPE) to students with disabilities. JPS has failed to correct the ten findings dealing with noncompliance with the Individuals with Disabilities Education Act.” http://www.jackson.k12.ms.us/content.aspx?url=/page/press&nid=1230 (last accessed on Oct. 31, 2012).

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D. The Public Interest Favors Granting Plaintiffs’ Motion for Preliminary Injunction. In considering a preliminary injunction motion, the public interest is “an element that
deserves separate attention in cases where the public interest may be affected.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). A preliminary injunction is appropriate where there is “a fit (or lack of friction) between the injunction and the public interest.” Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003). See also Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 623 (5th Cir. 1985) (the Court found the public interest was the central issue, the irreparable injury alleged was the adverse impact to the public interest, and therefore the irreparable injury and public interest analysis were intertwined). The Court’s equitable powers are enhanced when the public interest is at stake. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 562 (5th Cir. 1987). In this case, the public interest would be well-served by requiring the Defendant to fulfill its obligations to children with disabilities attending Jackson Public Schools.
The history and development of education programs for children with disabilities in the United States closely parallels the struggle of other minority groups to establish their civil right to participate equally in public education, which provides the primary preparation for economic and social participation in society. As the United States Supreme Court stated in Brown v. Board of Education:
[Education] is a principal instrument awakening the child to cultural values, in preparing him for later training, and in helping him to adjust normally to his environment. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Brown v. Board of Education, 347 U.S. 483, 493 (1954). Children with disabilities' right to equal educational opportunities was established when Congress enacted The Education for All Handicapped Children Act (later renamed the IDEA) in
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1975. The IDEA was implemented with the express goals of “ensur[ing] that all children with disabilities have available to them a free appropriate public education” and guaranteeing that the rights of children with disabilities and parents of such children are protected. 20 U.S.C. §§ 1400(d)(1)(A), 1400(d)(1)(B). Prior to its implementation, a majority of the nation’s almost 4 million children with disabilities were denied meaningful participation in public education. Nearly half of all children with disabilities were excluded entirely from public schools; the rest were either placed in grossly inadequate or segregated classrooms or in regular classrooms without meaningful support. H.R. Rep. No. 94-332, at 4 (1975). To remedy this history of discrimination and mistreatment, states accepting IDEA dollars must assume general responsibility for all educational programs that receive support under IDEA, including those conducted by local educational agencies. 20 U.S.C. § 1412(a)(11). When a state determines that a school district has failed to comply with a state or federal requirement for educating children with disabilities, it must take prompt action to ensure that the district comes into compliance. 20 U.S.C. § 1413(a).
In Howard S. v. Friendswood Independent School District, the District Court for the Southern District of Texas compared the value of an appropriate education for children with disabilities to the actual costs of non-compliance and granted the Plaintiffs’ motion for preliminary injunction. Howard S., 454 F. Supp. at 640 (a student receiving special education services was denied FAPE when he was constructively expelled for discipline problems without taking into consideration the student’s disability). The Court determined “the public interest will be served by the entering of a preliminary injunction for the reason that such preliminary injunction will afford the plaintiffs their statutory and constitutional rights, and will encourage compliance with the law.” Id. at 641. The Court further stated that “[r]eference to the legislative
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history reveals that it was the judgment of the Congress that the apparently substantial expense of compliance with the Education for All Handicapped Children Act of 1975 (Public Law 94142, 20 U.S.C. s 1401) is actually much less than the cost of life-long institutionalization.” Id.
In the instant matter, issuing a preliminary injunction will serve the public interest by affording Plaintiffs and putative class members’ their federally guaranteed right to the substantive and procedural benefits of the IDEA. Indeed, if the preliminary injunction is granted, it will address both the substantial threat of irreparable injury and serve, as opposed to disserve, the public interest. The public interest is served by ensuring that the Defendant, in its capacity as the state educational agency, remedies the systemic violations it identified through its own investigation of Jackson Public Schools. 20 U.S.C. §1412(a)(1)(11); 20 U.S.C. § 1413(g)(h)(1); 34 C.F.R. § 300.600(e); see also St. Tammany Parish Sch. Bd., 142 F.3d at 784 (state and local educational agencies may be held liable under IDEA for the failure to provide a free appropriate public education). Further, the preliminary injunction will not harm the Defendant. Instead, it will merely compel the Defendant to fulfill its statutory obligations and thereby serve the public interest. Plaintiffs therefore satisfy the final element required for a preliminary injunction.
V. PLAINTIFFS SHOULD NOT BE REQUIRED TO POST A SECURITY BOND AS A CONDITION OF THE PRELIMINARY INJUNCTION The Plaintiffs should not be required to post a security bond if a preliminary injunction is
issued. Although Fed. R. Civ. P. 65(c) permits courts to order the posting of a bond, they are not required to do so. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996). Several courts have waived the bond requirement in certain circumstances, such as in cases where plaintiffs seek to enforce important federal rights and serve the public interest. See Temple Univ. v. White, 941 F.2d 201, 219-20 (3d Cir. 1991). In determining whether a bond is required,
34

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courts also consider the “equities of potential hardships,” id., and the strength of the plaintiff’s
claims. See Moltan Co., v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995)
(approving waiver of a bond given the strength of the case and “the strong public interest
involved”); Sluiter v. Blue Cross & Blue Shield, 979 F. Supp. 1131, 1145 (E.D. Mich. 1997)
(“Due to the strong likelihood of Plaintiffs’ success on the merits and their demonstrated
financial inability, the Court finds it would be improper to require any security in this matter.”).
Here, several factors counsel in favor of waiver, including the strength of Plaintiffs’
claims, the strong public interest involved, and the financial hardship a bond would place on
Plaintiffs. This Court should therefore waive the bond requirement in this case.
VI. CONCLUSION
For the reasons set forth above, Plaintiffs E.H., J.P., and R.T. on behalf of themselves and
the proposed class, respectfully request that this Court issue a preliminary injunction to compel
Defendant MDE to comply with its statutory obligation under the IDEA to correct the violations
identified in its November 2010 Findings and Decision and ensure the provision of FAPE to
Plaintiffs and the class, including the appointment of an independent administrator to oversee the
provision of special education services to Plaintiffs and the proposed class.
RESPECTFULLY SUBMITTED, this the 1st day of November, 2012.
/s/ Vanessa J. Carroll VANESSA J. CARROLL, MS Bar No. 102736 vanessa.carroll@splcenter.org CORRIE COCKRELL, MS Bar No. 102376 corrie.cockrell@splcenter.org JODY E. OWENS, II, MS Bar No. 102333 jody.owens@splcenter.org Southern Poverty Law Center 111 E. Capitol St., Suite 280 Jackson, MS 39201 601-948-8882 (telephone) 601-948-8885 (fax)
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Case 3:12-cv-00474-DPJ-FKB Document 17 Filed 11/01/12 Page 36 of 37
JERRI KATZERMAN AZ Bar No. 013895* jerri.katzerman@splcenter.org Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8320 (telephone) 334-956-8481 (fax) *Admitted pro hac vice JIM COMSTOCK-GALAGAN LA Bar No. 05880* jgalagan@sdlcenter.org Southern Disability Law Center 4431 Canal St. New Orleans, LA 70119 504-486-8982 (telephone) 504-486-8947 (fax) *Admitted pro hac vice WENDELL HUTCHINSON, MS Bar No. 99178 whutchinson@drms.ms Disability Rights Mississippi 210 E. Capitol St., Suite 600 Jackson, MS 39201 601-968-0600 (telephone) 601-968-0665 (fax)
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Case 3:12-cv-00474-DPJ-FKB Document 17 Filed 11/01/12 Page 37 of 37
CERTIFICATE OF SERVICE I, Vanessa Carroll, hereby certify that a true and correct copy of the foregoing document was filed electronically. Notice of this filing will be sent by electronic mail to all parties by the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System. SO CERTIFIED, this 1st day of November, 2012.
/s/Vanessa J. Carroll VANESSA J. CARROLL, MSB # 102736 Southern Poverty Law Center 111 East Capitol Street, Suite 280 Jackson, MS 39201 Telephone: (601) 948-8882 Facsimile (601) 948-8885 vanessa.carroll@splcenter.org
37

 
 Case 3:12-cv-00474-DPJ-FKB Document 32 Filed 01/25/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

_________________________________________

)

E.H., et al.,

)

Plaintiffs, )

)

Case No. 3:12cv00474-DPJ-FKB

v.

)

)

MISSISSIPPI DEPARTMENT OF EDUCATION, )

)

Defendant. )

_________________________________________ )

STIPULATED NOTICE OF WITHDRAWAL AND DISMISSAL OF CLAIM

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), Plaintiff R.T., by and through his next friend,

Dawn Traxler, hereby withdraws as a named Plaintiff in this action and voluntarily dismisses his

claim against Defendant Mississippi Department of Education without prejudice. RESPECTFULLY SUBMITTED, this 25th day of January, 2013.

/s/ Vanessa J. Carroll VANESSA J. CARROLL, MS Bar No. 102736 vanessa.carroll@splcenter.org CORRIE COCKRELL, MS Bar No. 102376 corrie.cockrell@splcenter.org JODY E. OWENS, II, MS Bar No. 102333 jody.owens@splcenter.org Southern Poverty Law Center 111 E. Capitol St., Suite 280 Jackson, MS 39201 601-948-8882 (telephone) 601-948-8885 (fax)

JERRI KATZERMAN AZ Bar No. 013895* jerri.katzerman@splcenter.org Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8320 (telephone) 334-956-8481 (fax) *Admitted pro hac vice

Case 3:12-cv-00474-DPJ-FKB Document 32 Filed 01/25/13 Page 2 of 3
JIM COMSTOCK-GALAGAN LA Bar No. 05880* jgalagan@sdlcenter.org Southern Disability Law Center 4431 Canal St. New Orleans, LA 70119 504-486-8982 (telephone) 504-486-8947 (fax) *Admitted pro hac vice WENDELL HUTCHINSON, MS Bar No. 99178 whutchinson@drms.ms Disability Rights Mississippi 210 E. Capitol St., Suite 600 Jackson, MS 39201 601-968-0600 (telephone) 601-968-0665 (fax) Counsel for Plaintiffs /s/ Wilson Minor (by consent) WILSON MINOR Mississippi Attorney General’s Office P.O. Box 220 550 High Street Jackson, MS 39205 601-359-6279 (telephone) (601-359-2003 (fax) wmino@ago.state.ms.us Counsel for Defendant
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Case 3:12-cv-00474-DPJ-FKB Document 32 Filed 01/25/13 Page 3 of 3
CERTIFICATE OF SERVICE I, Vanessa Carroll, hereby certify that a true and correct copy of the foregoing document was filed electronically. Notice of this filing will be sent by electronic mail to all parties by the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System. SO CERTIFIED, this 25th day of January, 2013.
/s/Vanessa J. Carroll VANESSA J. CARROLL, MSB # 102736 Southern Poverty Law Center 111 East Capitol Street, Suite 280 Jackson, MS 39201 Telephone: (601) 948-8882 Facsimile (601) 948-8885 vanessa.carroll@splcenter.org
3

 
 Case 3:12-cv-00474-DPJ-FKB Document 61-1 Filed 09/29/14 Page 1 of 6
EXHIBIT A SETTLEMENT AGREEMENT

Case 3:12-cv-00474-DPJ-FKB Document 61-1 Filed 09/29/14 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

E.H., eta!. Plaintiffs,
v. Mississippi Department of Education,
Defendant.

) ) ) ) ) ) Civil Action No. 3:12cv474-DPJ-FKB ) ) ) )

SETTLEMENT AGREEMENT The Pmiies, E.H. and J.P. ("Plaintiffs") and Mississippi Depmiment of Education ("MDE"), agree to the following terms in order to resolve the issues set forth in Plaintiffs' September 17, 2012 amended complaint in this lawsuit. 1. The Pmiies stipulate that nothing in this Settlement Agreement constitutes an admission of liability. Plaintiffs and MDE agree that it is in the best interests of all Parties to resolve this matter mnicably without further litigation and costs. 2. This Settlement Agreement will remain in full force and effect for the 2014-2015 school year until August 31, 2015. The m1dersigned representatives of the Parties certify that they are authorized to enter into this Settlement Agreement m1d legally bind the Pmiies to it. This Settlement Agreement is final and shall be binding upon the legal representatives and any successors of the Pmiies. 3. If any section of this Settlement Agreement is held to be unlawful, invalid or otherwise unenforceable by a court of competent jurisdiction, such holding will not affect the validity ofthe other sections in this Settlement Agreement. Ifthis occurs, representatives of the Plaintiffs and MDE will meet within twenty (20) days to determine if this

Case 3:12-cv-00474-DPJ-FKB Document 61-1 Filed 09/29/14 Page 3 of 6
Settlement Agreement should be amended or revised to be in compliance with the court's decision. 4. This litigation arises from a formal state complaint filed with MDE in September 2010 on behalf of Plaintiff E.H. and a class of similarly situated Jackson Public School District ("JPS") students alleging systemic violations of the Individuals with Disabilities Education Act ("IDEA"). MDE investigated the complaint and determined JPS to be in noncompliance with federal law. MDE thereafter placed JPS on a corrective action plan and monitored the District's compliance. 5. On February 12, 2014, MDE determined that JPS had corrected all its IDEA noncompliance identified in MDE's investigation of the formal state complaint. 6. The Parties' priority moving forward is helping JPS as it works toward sustainability and implementation of its Program Sustainability Plan in the 2014-2015 school year. Through the use of independent provider(s) and/or MDE personnel, MDE shall conduct quarterly technical assistance reviews of JPS' s implementation of the District's Program Sustainability Plan for the 2014-2015 school year. MDE will assess JPS on the following: provision of behavioral suppmis and related services, including Functional Behavioral Assessments, Behavior Intervention Plans, and Manifestation Determination Reviews; Individualized Education Program (IEP) development; meaningful educational benefit; appropriate re-convening ofiEP meetings when needed based on applicable data; Extended School Year; Least Restrictive Environment placements, including placements at the Capital City Alternative School; procedures for identification of students in need of behavioral supports; JPS 's adherence to its policies and procedures for implementation and delivery of IDEA services; and otl1er related information deemed appropriate by
2

Case 3:12-cv-00474-DPJ-FKB Document 61-1 Filed 09/29/14 Page 4 of 6
MDE. Where the data show an area of concern that might wmrant a review of a random sample of student files, MDE will conduct a random sampling of student files. MDE's reviews will also include review and evaluation of: file samples; interviews of JPS personnel and other information deemed appropriate by MDE based on the aboveidentified factors. MDE will provide Plaintiffs' counsel with a copy of the technical assistance protocol which will be used dnring the qumterly teclmical assistance reviews after it is developed. 7. MDE shall create a quarterly technical assistance review report examining JPS's delivery of special education services to be produced to Plaintiffs counsel on or before November 21, 2014; February 27, 2015; May 29, 2015; and July 31,2015. The report will include a description and summary of the data reviewed atld a statement of progress made, as required in this agreement. 8. MDE shall also provide Plaintiffs' counsel with distt·ict-level data based on Indicators 4A, 4B and 5 as defined in the IDEA State Part B Annual Perfonnance Report, subject to the data being made available; the technical assistance providers' monthly activity reports; and the licensnre certifications of the technical assistance providers. This information shall be provided on a quarterly basis when the final quarterly report is provided, as otherwise required in this Agreement. 9. Plaintiffs' counsel may submit one (1) request per quarterly report for an explanation of any specific issues or concerns tbey may identizy in reference to material provided in fulfillment of the tenns of Paragraph 7. The requests must be submitted to MDE within ten (10) business days of Plaintiffs' counsel's receipt of the quarterly repm1, and MDE shall have thirty (30) days from receipt of the request to respond in writing. Should any
3

Case 3:12-cv-00474-DPJ-FKB Document 61-1 Filed 09/29/14 Page 5 of 6
dispute arise regarding any issue related to this Paragraph, the parties shall follow the dispnte resolution procedure set forth in Paragraph 12. 10. !viDE shall provide JPS with training and/or other technical assistance, through means it deems necessary, on any subjects or issues related to JPS's implementation of the Program Sustainability Plan and identified through the quarterly technical assistance reviews, as provided in this Agreement. MDE shall provide Plaintiffs' counsel with the following information about the training conducted by MDE staff and/or contract personnel: name(s) of the personnel who conducted the training, curriculum vitae of the trainer(s), subject matter of the trainings, any training materials, and a list of participants by position. This information will be provided on a quarterly basis, along with the final quarterly reports. 11. This Settlement Agreement is not proof or evidence on any point of fact or law, except in the event of a proceeding to enforce its terms as described in Paragraph 12, below. 12. Within ten (1 0) business days after execution of this Agreement, the Parties will jointly move the Court for an order completely staying and directing the Clerk of Court to administratively close this lawsuit. If Plaintiffs believe that MDE has substantially failed to comply with any obligation under this Settlement Agreement during its tenn, Plaintiffs' counsel shall give written notice of that alleged failure to MDE. The Parties will conduct good faith discussions to resolve the dispute. If the Parties are unable to reach an agreement within seven (7) business days of Plaintiffs' written notice, the Parties will submit the dispnte to mediation before the magistrate judge assigned to the lawsuit. If the Parties are m1able to resolve the dispute through mediation, Plaintiffs will not oppose a motion filed by MDE to include JPS as a party defendant to this lawsuit and
4

Case 3:12-cv-00474-DPJ-FKB Document 61-1 Filed 09/29/14 Page 6 of 6

will file a Notice of Reinstatement of their Amended Complaint. If no such actions as described above are taken during this Settlement Agreement's term, the Parties agree to jointly move the Court for dismissal of this lawsuit with prejudice upon expiration of this Settlement Agreement's term. 13. The parties agree that each party will bear their own fees, expenses and costs incurred in connection with this Settlement Agreement.
EXECUTED this 23 day of September 2014, by:

CORRIE W. COCKRELL, MS BarNo. 102376 JODY E. OWENS, II, MS Bar No. 102333 Southern Poverty Law Center 11 I E. Capitol St., Suite 280 Jackson, MS 39201 60 1-948-8882 (telephone)

ON BEHALF OF THE MISSISSIPPI DEPARTMENT OF EDUCATION:

JERRJ KATZERMAN,AZBarNo. 013895* Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8320 (telephone) *Admitted pro hoc vice

a ,A, ..c;L 2
J6HN R. KELLY, Ph.D. /
Chair, Mississippi Board of Education

WENDELL HUTCHINSON, MS Bar No. 99178 Disability Rigfits Mississippi 210 E. Capitol St., Suite 600 Jackson, MS 3920 I 601-968-0600 (telephone)
COUNSEL FOR PLAINTIFF
~.-('(,t~
JUSTIN MATHENY, MS BarNo. 100754 WILSON MINOR, MS Bar No. 102663 Office ofthe Attorney General P.O. Box220 Jackson, MS 39205 Telephone: (601) 359-3680

COUNSEL FOR DEFENDANT

5

 
 U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:12-cv-00474-DPJ-FKB

E.H. v. Mississippi Department of Education Assigned to: District Judge Daniel P. Jordan, III Referred to: Magistrate Judge F. Keith Ball Cause: 20:1400 Civil Rights of Handicapped Child

Date Filed: 07/10/2012 Date Terminated: 09/30/2014 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

Plaintiff
E.H. by and through His next friend, Lula Henry, on Behalf of Himself and all similarly situated students

represented by Corrie Wynette Cockrell SOUTHERN POVERTY LAW CENTER - Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Fax: 601/948-8885 Email: corrie.cockrell@splcenter.org (Inactive) TERMINATED: 06/29/2015 ATTORNEY TO BE NOTICED

James E. Comstock-Galagan - PHV SOUTHERN DISABILITY LAW CENTER 4431 Canal Street New Orleans, LA 70119 504/486-8982 Fax: 504/486-8947 Email: jgalagan@sdlcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jerri Katzerman - PHV SOUTHERN POVERTY LAW CENTER - Montgomery P. O. Box 2087 400 Washington Avenue (36104) Montgomery, AL 36102 334/956-8320 Fax: 334/956-8481 Email:

Plaintiff
R.T. by and through his next friend, Dawn Traxler TERMINATED: 01/28/2013

jerri.katzerman@splcenter.org (Inactive) PRO HAC VICE ATTORNEY TO BE NOTICED
Jody E. Owens , II SOUTHERN POVERTY LAW CENTER - Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Fax: 601/948-8885 Email: jody.owens@splcenter.org ATTORNEY TO BE NOTICED
Vanessa Judith Carroll SOUTHERN POVERTY LAW CENTER - New Orleans 1055 St. Charles Ave., Suite 505 New Orleans, LA 70130 6083547149 Fax: 504/486-8947 Email: vanessa.carroll@splcenter.org TERMINATED: 08/19/2013 ATTORNEY TO BE NOTICED
Wendell C. Hutchinson DISABILITY RIGHTS MISSISSIPPI 210 E. Capitol Street Suite 600 Jackson, MS 39201 601/968-0600 Fax: 601/968-0665 Email: whutchinson@drms.ms ATTORNEY TO BE NOTICED
represented by Corrie Wynette Cockrell (See above for address) TERMINATED: 06/29/2015 ATTORNEY TO BE NOTICED
James E. Comstock-Galagan - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
J.P. by and through his next friend, Joe Nemeka Paige

Jerri Katzerman - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jody E. Owens , II (See above for address) ATTORNEY TO BE NOTICED
Vanessa Judith Carroll (See above for address) TERMINATED: 08/19/2013 ATTORNEY TO BE NOTICED
Wendell C. Hutchinson (See above for address) ATTORNEY TO BE NOTICED
represented by Corrie Wynette Cockrell (See above for address) TERMINATED: 06/29/2015 ATTORNEY TO BE NOTICED
James E. Comstock-Galagan - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jerri Katzerman - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jody E. Owens , II (See above for address) ATTORNEY TO BE NOTICED
Vanessa Judith Carroll (See above for address) TERMINATED: 08/19/2013 ATTORNEY TO BE NOTICED
Wendell C. Hutchinson (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Mississippi Department of Education

represented by Justin L. Matheny-State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205-0220 601-359-3825 Fax: 601-359-2003 Email: jmath@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson D. Minor-State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205-0220 601/359-6279 Fax: 601/359-2003 Email: wmino@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/10/2012
07/10/2012 07/31/2012
07/31/2012

# Docket Text
1 COMPLAINT against Mississippi Department of Education ( Filing fee $ 350 receipt number 34643016680), filed by E.H.. (Attachments: # 1 Civil Cover Sheet)(ND) (Entered: 07/10/2012)
2 Summons Issued as to Mississippi Department of Education C/O Attorney General Jim Hood. (ND) (Entered: 07/10/2012)
3 MOTION for James Comstock-Galagan to Appear Pro Hac Vice by E.H. (Attachments: # 1 Exhibit Certificate of Good Standing)(Carroll, Vanessa) (Entered: 07/31/2012)
4 MOTION for Jerri Katzerman to Appear Pro Hac Vice by E.H. (Attachments: # 1 Exhibit Certificate of Good Standing)(Carroll, Vanessa) (Entered: 07/31/2012)

07/31/2012 08/02/2012
08/28/2012 09/17/2012 09/17/2012 09/20/2012
09/27/2012 09/27/2012 10/01/2012 10/03/2012

Pro Hac Vice fees paid by James E. Comstock-Galagan and Jerri Katzerman, $ 200.00, receipt number 34643017018. (ND) (Entered: 07/31/2012)
TEXT-ONLY ORDER granting 3 Motion to Appear Pro Hac Vice; granting 4 Motion to Appear Pro Hac Vice that James ComstockGalagan and Jerri Katzerman be admitted pro hac vice in this case on behalf of the plaintiff in association with local counsel and upon registration for electronic filing as required by the Court. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 8/2/12. (JEJ) (Entered: 08/02/2012)
5 SUMMONS Returned Executed by E.H.; Mississippi Department of Education c/o Jim Hood served on 8/27/2012, answer due 9/17/2012. (Carroll, Vanessa) (Entered: 08/28/2012)
6 MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond to Complaint by Mississippi Department of Education (Minor, Wilson) (Entered: 09/17/2012)
7 AMENDED COMPLAINT against Mississippi Department of Education, filed by E.H..(Carroll, Vanessa) (Entered: 09/17/2012)
Text-only ORDER granting 6 Motion for Extension of Time to Answer Mississippi Department of Education answer due 9/21/2012. Signed by Magistrate Judge F. Keith Ball on 9/20/12. (No further written order will be issued.) (dfk) (Entered: 09/20/2012)
Ore Tenus MOTION for Extension of Time to File Answer. by Mississippi Department of Education (dfk) (Entered: 09/27/2012)
8 ORDER granting [] Motion for Extension of Time to Answer Mississippi Department of Education answer due 10/1/2012. Signed by Magistrate Judge F. Keith Ball on 9/27/12 (dfk) (Entered: 09/27/2012)
9 ANSWER to 7 Amended Complaint by Mississippi Department of Education.(Minor, Wilson) (Entered: 10/01/2012)
10 Rule 16(a) Initial Order Telephonic Case Management Conference set for 12/4/2012 01:45 PM before Magistrate Judge F. Keith Ball. No later than seven (7) days prior to the TCMC, a confidential memorandum AND a proposed Case Management Order shall be submitted via e-mail to ball_chambers@mssd.uscourts.gov. (JEJ) (Entered: 10/03/2012)

10/04/2012
10/04/2012 10/16/2012 10/17/2012 10/25/2012
10/25/2012 11/01/2012

11 MOTION to Certify Class by E.H. (Attachments: # 1 Exhibit Administrative Complaint, # 2 Exhibit MDE Findings and Decision, # 3 Exhibit Letter from T. Bradley to C. Cockrell and L. Edwards, Nov. 22, 2010, # 4 Exhibit Letter from T. Bradley to J. Sargent, Jan. 13, 2012, # 5 Exhibit November Follow-up Monitoring Report, # 6 Exhibit Letter from T. Bradley to J. Sargent, May 15, 2012, # 7 Exhibit April Follow-up Monitoring Report, # 8 Exhibit District Data Profile Report for JPS, # 9 Exhibit Children's First 2009-2010 Annual Report for JPS, # 10 Exhibit Part B Application, # 11 Exhibit Declaration of V. Carroll)(Carroll, Vanessa) (Entered: 10/04/2012)
12 MEMORANDUM IN SUPPORT re 11 MOTION to Certify Class filed by E.H. (Carroll, Vanessa) (Entered: 10/04/2012)
13 Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Certify Class by Mississippi Department of Education (Minor, Wilson) (Entered: 10/16/2012)
TEXT ONLY ORDER granting 13 Motion for Extension of Time to File Response/Reply. The Response is due by October 25, 2012. Signed by District Judge Daniel P. Jordan III on October 17, 2012. No further written order will issue. (AH) (Entered: 10/17/2012)
14 Response in Opposition re 11 MOTION to Certify Class by E.H. (Attachments: # 1 Exhibit Administrative Complaint, # 2 Exhibit MDE Findings and Decision, # 3 Exhibit Letter from T. Bradley to C. Cockrell and L. Edwards, Nov. 22, 2010, # 4 Exhibit Letter from T. Bradley to J. Sargent, Jan. 13, 2012, # 5 Exhibit November Follow-up Monitoring Report, # 6 Exhibit Letter from T. Bradley to J. Sargent, May 15, 2012, # 7 Exhibit April Follow-up Monitoring Report, # 8 Exhibit District Data Profile Report for JPS, # 9 Exhibit Children's First 2009-2010 Annual Report for JPS, # 10 Exhibit Part B Application, # 11 Exhibit Declaration of V. Carroll)(Carroll, Vanessa) filed by Mississippi Department of Education (Minor, Wilson) (Entered: 10/25/2012)
15 MEMORANDUM IN SUPPORT re 14 Response in Opposition,,, filed by Mississippi Department of Education (Attachments: # 1 Exhibit A - Notice of Commission Action, # 2 Exhibit B October 19, 2012 State Board of Education Agenda)(Minor, Wilson) (Entered: 10/25/2012)
16 MOTION for Preliminary Injunction by E.H. (Attachments: # 1 Exhibit Administrative Complaint, # 2 Exhibit Findings and Decision, # 3 Exhibit Letter from T. Bradley to C. Cockrell and L. Edwards Nov. 22, 2010, # 4 Exhibit December 2010 CAP,

11/01/2012 11/05/2012 11/12/2012
11/13/2012
11/21/2012 11/21/2012 11/21/2012

# 5 Exhibit Testimony of Dr. Ken Swindol, # 6 Exhibit Updated Timeline for JPS, # 7 Exhibit Sept. 9, 2011 Revised CAP, # 8 Exhibit Summary of MDE/OSE Review of JPS' Revised Improvement Plan, # 9 Exhibit Testimony of Dr. Tawny McCleon, # 10 Exhibit Letter from A. Moore to Dr. J. Sargent Sept. 26, 2011, # 11 Exhibit Letter from T. Bradley to Dr. J. Sargent Jan. 13, 2012, # 12 Exhibit November Follow-up Monitoring Report, # 13 Exhibit Letter from T. Bradley to Dr. J. Sargent May 15, 2012, # 14 Exhibit April Follow-up Monitoring Report, # 15 Exhibit Notice of Commission Action on Accreditation, # 16 Exhibit Memo from Dr. Addison to A. Moore June 4, 2012, # 17 Exhibit July 2012 CAP)(Carroll, Vanessa) (Entered: 11/01/2012)
17 MEMORANDUM in Support re 16 MOTION for Preliminary Injunction filed by E.H. (Carroll, Vanessa) (Entered: 11/01/2012)
18 REPLY to Response to Motion 14 Response in Opposition in re 11 MOTION to Certify Class filed by E.H. (Carroll, Vanessa) (Entered: 11/05/2012)
19 Unopposed MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Preliminary Injunction by Mississippi Department of Education (Minor, Wilson) (Entered: 11/12/2012)
TEXT ONLY ORDER granting 19 Motion for Extension of Time to File Response/Reply. Defendant's Response to Plaintiffs' Motion for Preliminary Injunction 16 is due by November 21, 2012. Signed by District Judge Daniel P. Jordan III on November 13, 2012. No further written order will issue. (AH) (Entered: 11/13/2012)
20 MOTION for Leave to File Excess Pages by Mississippi Department of Education (Minor, Wilson) (Entered: 11/21/2012)
21 RESPONSE in Opposition re 16 MOTION for Preliminary Injunction filed by Mississippi Department of Education (Minor, Wilson) (Entered: 11/21/2012)
22 MEMORANDUM IN SUPPORT re 21 Response in Opposition to Motion for Preliminary Injunction filed by Mississippi Department of Education (Attachments: # 1 Exhibit A - Notice of Commission Action re: Jackson Public School District Show Cause Hearing, # 2 Exhibit B - Affidavit of Kim S. Bention, Ed.D. /attachment: Memorandum of Agreement between MS Dept. of Education and the Jackson Public School District, dated 10/26/12)(Minor, Wilson) (Entered: 11/21/2012)

11/27/2012 11/27/2012 11/27/2012
12/03/2012 12/03/2012 12/04/2012 12/05/2012 12/05/2012 12/06/2012 12/08/2012

23 MOTION to Dismiss by Mississippi Department of Education (Minor, Wilson) (Entered: 11/27/2012)
24 MEMORANDUM in Support re 23 MOTION to Dismiss filed by Mississippi Department of Education (Minor, Wilson) (Entered: 11/27/2012)
ORDER STAYING DISCOVERY. An immunity defense motion has been filed in this case. Therefore, in accordance with L.U.Civ.R. 16(b)(3)(B), the disclosure requirements and all discovery are hereby STAYED, pending the Court's ruling on the motion. Signed by Magistrate Judge F. Keith Ball on 11/27/12. (No further written order will be issued.)(dfk) (Entered: 11/27/2012)
25 Unopposed MOTION for Extension of Time to File Response/Reply as to 22 Memorandum in Support, of Response in Opposition to Plaintiffs' Motion for Preliminary Injunction by E.H. (Carroll, Vanessa) (Entered: 12/03/2012)
TEXT ONLY ORDER granting 25 Motion for Extension of Time to File Response/Reply. Plaintiffs' Reply is due by December 5, 2012. Signed by District Judge Daniel P. Jordan III on December 3, 2012. No further written order will issue. (AH) (Entered: 12/03/2012)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Case Management Conference held on 12/4/2012 in Jackson, MS. Appearances: Vanessa Carroll, Corrie Cockrell, Jody Owens, Wendell Hutchnison, Justin Matheny and Wilson Minor. (JEJ) (Entered: 12/08/2012)
26 MOTION for Leave to File Excess Pages by E.H. (Carroll, Vanessa) (Entered: 12/05/2012)
27 REPLY to Response to Motion re 21 Response in Opposition to Motion for Preliminary Injunction filed by E.H. (Attachments: # 1 Exhibit Letter from T. Bradley to Dr. C. Gray, Nov. 19, 2012, # 2 Exhibit October 2012 Follow-up Monitoring Report)(Carroll, Vanessa) (Entered: 12/05/2012)
TEXT ONLY ORDER granting 20 Defendant's Motion for Leave to File Excess Pages; granting 26 Plaintiffs' Motion for Leave to File Excess Pages. Signed by District Judge Daniel P. Jordan III on December 6, 2012. No further written order will issue. (AH) (Entered: 12/06/2012)
Set/Reset Hearings: Settlement Conference set for 1/8/2013 09:00 AM before Magistrate Judge F. Keith Ball. Seven (7) days prior to

12/14/2012 12/14/2012 12/19/2012 12/19/2012
12/28/2012 01/08/2013
01/08/2013 01/10/2013

the settlement conference, the parties shall submit via e-mail to ball_chambers@mssd.uscourts.gov an updated CONFIDENTIAL SETTLEMENT MEMORANDUM. All parties are required to be present at the conference unless excused by the Court. If a party believes the scheduled settlement conference would not be productive and should be cancelled, the party is directed to inform the Court via e-mail of the grounds for their belief at least seven (7) days prior to the conference. (JEJ) (Entered: 12/08/2012)
28 RESPONSE in Opposition re 23 MOTION to Dismiss filed by E.H. (Carroll, Vanessa) (Entered: 12/14/2012)
29 MEMORANDUM IN SUPPORT re 28 Response in Opposition to Motion to Dismiss filed by E.H. (Carroll, Vanessa) (Entered: 12/14/2012)
30 Unopposed MOTION for Extension of Time to File Response/Reply as to 28 Response in Opposition to Motion by Mississippi Department of Education (Minor, Wilson) (Entered: 12/19/2012)
TEXT ONLY ORDER granting 30 Motion for Extension of Time to File Response/Reply. Defendant's Reply is due by December 28, 2012. Signed by District Judge Daniel P. Jordan III on December 19, 2012. No further written order will issue. (AH) (Entered: 12/19/2012)
31 Rebuttal re 28 Response in Opposition to Motion filed by Mississippi Department of Education (Minor, Wilson) (Entered: 12/28/2012)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Settlement Conference held on 1/8/2013 in Jackson, MS. Appearances: Vanessa Carroll, Joe Paige, Lula Henry, Jed Oppenheim, Corrie Cockrell, Jim Comstock-Galagan, Jerri Katzerman, Wendell Hutchinson, Kathy Boteler, Heather Deaton, Ann Moore, Justin Matheny, Wilson Minor, and Jody Owens, III. (JEJ) Modified on 1/8/2013 (JEJ). (Entered: 01/08/2013)
Set/Reset Hearings: Telephonic Status Conference set for 1/10/2013 01:30 PM before Magistrate Judge F. Keith Ball. Counsel for Plaintiff shall initiate the call. (JEJ) (Entered: 01/08/2013)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 1/10/2013 in Jackson, MS. Appearances: Corrie Cockrell, James Comstock-Galagan, Jerri

01/10/2013 01/15/2013
01/15/2013 01/23/2013
01/23/2013 01/25/2013 01/31/2013 02/01/2013
04/15/2013 04/19/2013

Katzerman, Jody Owens, II, Vanessa Carroll, Wendell Hutchinson, Wilson Minor and Justin Metheny. (JEJ) (Entered: 01/11/2013)
Set Hearing: Telephonic Status Conference set for 1/15/2013 11:30 AM before Magistrate Judge F. Keith Ball. Counsel for Plaintiff shall initiate the call. (JEJ) (Entered: 01/11/2013)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 1/15/2013 in Jackson, MS. Appearances: Vanessa Carroll, Corrie Cockrell, Jody Owens, Jerri Katzerman, Jim Comstock-Galagan, Wendell Hutchinson, Justin Matheny and Wilson Minor. (JEJ) (Entered: 01/15/2013)
Set Hearing: Settlement Conference set for 1/23/2013 08:30 AM before Magistrate Judge F. Keith Ball. (JEJ) (Entered: 01/15/2013)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Settlement Conference held on 1/23/2013 in Jackson, MS. Appearances: Jody Owens, Vanessa Carroll, Corrie Cockrell, Jerri Katzerman, Jim Galagan, Kathy Boteler, Ann Moore, Heather Deaten, Justin Matheny and Wilson Minor. (JEJ) (Entered: 01/24/2013)
TEXT-ONLY ORDER STAYING CASE. No further written order shall issue from the Court. Signed by Magistrate Judge F. Keith Ball on 1/23/13. (JEJ) (Entered: 01/24/2013)
32 STIPULATION of Dismissal by R.T. (Carroll, Vanessa) (Entered: 01/25/2013)
Set Hearing: Telephone Conference set for 2/1/2013 02:00 PM before Magistrate Judge F. Keith Ball. Plaintiff's counsel shall initiate the call to 601-608-4460. (JEJ) (Entered: 01/31/2013)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephone Conference held on 2/1/2013 in Jackson, MS. Appearances: Corrie Cockrell, James Comstock-Galagan, Jerri Katzerman, Jody Owens, II, Vanessa Carroll, Wendell Hutchinson, Wilson Minor and Justin Matheny. (JEJ) (Entered: 02/04/2013)
33 NOTICE of Appearance by Justin L. Matheny on behalf of Mississippi Department of Education (Matheny, Justin) (Entered: 04/15/2013)
Set Hearing: Telephonic Status Conference set for 4/25/2013 10:30 AM before Magistrate Judge F. Keith Ball. Defense counsel shall initiate the call. (JEJ) (Entered: 04/19/2013)

04/25/2013 05/07/2013 05/20/2013 05/28/2013
06/05/2013 06/13/2013

Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 4/25/2013 in Jackson, MS. Appearances: Vanessa Carroll, Corrie Cockrell, Jody Owens, James Comstock-Galagan, Wendell Hutchinson, Jerri Katzerman, Justin Matheny and Wilson Minor. (JEJ) (Entered: 05/07/2013)
Set Hearing: In Person Status Conference set for 5/20/2013 09:00 AM before Magistrate Judge F. Keith Ball. Representatives of Defendant Mississippi Department of Education with full settlement authority are required to attend. (JEJ) (Entered: 05/07/2013)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: In Person Status Conference held on 5/20/2013 in Jackson, MS. Appearances: Vanessa Carroll, Corrie Cockrell, Mark Mlawer, Jim Comstock, Wendell Hutchinson, Jed Oppenheim, J. Paige, Justin Matheny Wilson Minor, Kathy Boteler, Heather Deaton, Tonya Green, Kim S. Benton and Jody Owens, II. (JEJ) (Entered: 05/28/2013)
TEXT-ONLY ORDER. This case came before the undersigned for a status conference on 5/20/2013. Appearances: For Plaintiffs Vanessa Carroll, Corrie Cockrell, James Comstock-Galagan, Wendell Hutchinson, Jed Oppenheim, Jonemeka Paige, Jody Owens, II, and Mark Mlawer; and for Defendant - Justin Matheny, Wilson Minor, Kathy Boteler, Heather Deaton, Tonya Green, and Kim S. Benton. After conferring at the conference, the undersigned granted Plaintiffs' request to terminate the interim stay agreement previously entered by the parties. Therefore, the stay entered on 1/23/2013 pursuant to the agreement is hereby lifted. However, this case shall remain stayed pursuant to the stay entered on 11/27/2012 and pending a decision on Defendant's motion to dismiss. Further, the Court finds that the pending motions [Docket Nos. 11, 16, and 23] should be terminated and the parties are instructed to refile their motions to include the facts which have developed since the motions were originally filed. The parties shall refile their motions by June 14, 2013. No further written order shall issue from the Court. Signed by Magistrate Judge F. Keith Ball on 5/28/2013. (JEJ) (Entered: 05/28/2013)
34 MOTION for Extension of Time to File Re-File Dispositive Motion by Mississippi Department of Education (Matheny, Justin) (Entered: 06/05/2013)
Text-only ORDER granting 34 Motion for Extension of Time to Refile Dispositive Motion. Deadline extended to June 28, 2013.

06/14/2013 06/14/2013 06/14/2013
06/28/2013 06/28/2013

Signed by Magistrate Judge F. Keith Ball on 6/13/13. (No further written order will be issued.) (dfk) (Entered: 06/13/2013)
35 MOTION to Certify Class by E.H., J.P. (Cockrell, Corrie) (Entered: 06/14/2013)
36 MEMORANDUM in Support re 35 MOTION to Certify Class filed by E.H., J.P. (Cockrell, Corrie) (Entered: 06/14/2013)
37 ATTACHMENT re 35 MOTION to Certify Class by E.H., J.P. (Attachments: # 1 Exhibit 2 MDE Office of Special Education Findings and Decision with Regards to the State Admin Complaint Against JPS Nov. 22, 2010, # 2 Exhibit 3 MDE Office of Special Education, to C. Cockrell and L. Edwards, # 3 Exhibit 4 Letter from T. Bradley, Bureau Director, MDE Office of Special Education, to Dr. J. Sargent, Superintendent, JPS (Jan. 13, 2012), # 4 Exhibit 5 MDE, Follow-up Monitoring Evaluation Report on Services for Students with Disabilities (Nov. 15-16, 2011), # 5 Exhibit 6 Letter from T. Bradley to Dr. J. Sargent (May 15, 2012), # 6 Exhibit 7 MDE, Follow-up Monitoring Evaluation Report on Services for Students with Disabilities (Apr. 18-20, 2012), # 7 Exhibit 8 Letter from T. Bradley, Bureau Director, MDE Office of Special Education to Dr. C. Gray, Superintendent, JPS 1 (Nov. 19, 2012), # 8 Exhibit 9 Follow-up Monitoring Evaluation Report on Services for Students with Disabilities (Oct. 16-19, 2012), # 9 Exhibit 10 MDE, District Data Profile Report for JPS 1 (Jan. 20, 2012), # 10 Exhibit 11 JPS, The Childrens First 2009-2010 Annual Report 1 (2010), # 11 Exhibit 12 MDE, Annual State Application Under Part B of the IDEA for Federal Fiscal Year 2012, # 12 Exhibit 13 Declaration of Vanessa Carroll)(Cockrell, Corrie) (Entered: 06/14/2013)
38 MOTION for Leave to File Excess Pages by Mississippi Department of Education (Matheny, Justin) (Entered: 06/28/2013)
39 MOTION to Dismiss by Mississippi Department of Education (Attachments: # 1 Exhibit A - State Administrative Complaint, # 2 Exhibit B - November 22, 2010 Report, # 3 Exhibit C December 2010 CAP, # 4 Exhibit D - September 2011 Revised CAP, # 5 Exhibit E - September 26, 2011 MDE Review of Revised CAP, # 6 Exhibit F - November 15-16, 2011 Follow-up Monitoring Report, # 7 Exhibit G - May 31, 2012 Accreditation Order, # 8 Exhibit H - April 18-20, 2012 Follow-up Monitoring Report, # 9 Exhibit I - July 2012 CAP, # 10 Exhibit J - October 16-19, 2012 Follow-up Monitoring Report, # 11 Exhibit K - October 19, 2012 MBE Agenda, # 12 Exhibit L - November 2, Memorandum of

06/28/2013 07/01/2013 07/01/2013 07/02/2013 07/03/2013
07/09/2013 07/09/2013
07/11/2013 07/11/2013

Agreement/Compliance Agreement, # 13 Exhibit M - January 2013 CAP, # 14 Exhibit N - February 2013 CAP, # 15 Exhibit O - May 14-16, 2013 Follow-up Monitoring Report, # 16 Exhibit P - Reports of Cleared Petitioners, # 17 Exhibit Q - MOA Addendum)(Matheny, Justin) (Entered: 06/28/2013)
40 MEMORANDUM in Support re 39 MOTION to Dismiss filed by Mississippi Department of Education (Matheny, Justin) (Entered: 06/28/2013)
41 RESPONSE in Opposition re 35 MOTION to Certify Class filed by Mississippi Department of Education (Minor, Wilson) (Entered: 07/01/2013)
42 MEMORANDUM IN OPPOSITION re 35 MOTION to Certify Class filed by Mississippi Department of Education (Minor, Wilson) (Entered: 07/01/2013)
43 MOTION for Discovery by E.H., J.P. (Attachments: # 1 Exhibit Declaration of Corrie W. Cockrell)(Cockrell, Corrie) (Entered: 07/02/2013)
TEXT ONLY ORDER granting 38 Unopposed Motion for Leave to File Excess Pages. Defendant's memorandum and rebuttal briefs for its Motion to Dismiss 39 may not exceed a total of 75 pages. Signed by District Judge Daniel P. Jordan III on July 3, 2013. No further written order will issue. (AH) (Entered: 07/03/2013)
44 Unopposed MOTION for Extension of Time to File Response/Reply as to 39 MOTION to Dismiss by E.H., J.P. (Cockrell, Corrie) (Entered: 07/09/2013)
TEXT ONLY ORDER granting 44 Unopposed Motion for Extension of Time to File Response/Reply. Plaintiffs Response to Defendant's Motion to Dismiss 39 is due within 10 days of the Court's ruling on the pending Motion for Discovery 43 , unless that ruling specifies differently. Signed by District Judge Daniel P. Jordan III on July 9, 2013. No further written order will issue. (AH) (Entered: 07/09/2013)
45 MOTION for Leave to File Excess Pages by E.H., J.P. (Cockrell, Corrie) (Entered: 07/11/2013)
46 REPLY to Response to Motion re 41 Response in Opposition to Motion, 42 Memorandum in Opposition filed by E.H., J.P. (Cockrell, Corrie) (Entered: 07/11/2013)

07/11/2013 07/11/2013 07/12/2013 07/22/2013 08/08/2013 08/19/2013 09/06/2013 09/16/2013 09/26/2013 03/07/2014
03/11/2014

47 RESPONSE in Opposition re 43 MOTION for Discovery filed by Mississippi Department of Education (Matheny, Justin) (Entered: 07/11/2013)
48 MEMORANDUM in Opposition re 43 MOTION for Discovery filed by Mississippi Department of Education (Matheny, Justin) (Entered: 07/11/2013)
TEXT ONLY ORDER granting 45 Motion for Leave to File Excess Pages. The motion indicates it is unopposed. Signed by District Judge Daniel P. Jordan III on July 12, 2013. No further written order will issue. (AH) (Entered: 07/12/2013)
49 RESPONSE in Support re 43 MOTION for Discovery filed by E.H., J.P. (Cockrell, Corrie) (Entered: 07/22/2013)
50 MOTION to Withdraw as Attorney by E.H., J.P. (Carroll, Vanessa) (Entered: 08/08/2013)
51 ORDER granting 50 Motion to Withdraw as Attorney. Attorney Vanessa Judith Carroll terminated Signed by Magistrate Judge F. Keith Ball on 8/19/13 (dfk) (Entered: 08/19/2013)
52 ORDER denying 43 Motion for Discovery for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on September 6, 2013. (SP) (Entered: 09/06/2013)
53 RESPONSE in Opposition re 39 MOTION to Dismiss filed by E.H., J.P. (Cockrell, Corrie) (Entered: 09/16/2013)
54 Rebuttal re 39 MOTION to Dismiss filed by Mississippi Department of Education (Attachments: # 1 Exhibit 1 - Addendum to Memorandum of Agreement)(Matheny, Justin) (Entered: 09/26/2013)
55 ATTACHMENT re 39 MOTION to Dismiss MISSISSIPPI DEPARTMENT OF EDUCATION'S SUPPLEMENT TO MOTION TO DISMISS by Mississippi Department of Education (Attachments: # 1 Exhibit A - MDE's Office of Special Educations's February 12, 2014 M Follow-up Monitoring Report, # 2 Exhibit B Transition Plan, # 3 Exhibit C - Minutes for the State Board of Educations monthly February 20, 2014 Board Meeting, # 4 Exhibit D - JPSs March 5, 2014 transmittal letter and Sustainability Plan)(Matheny, Justin) (Entered: 03/07/2014)
56 MOTION to Strike 55 Attachment,, by E.H., J.P. (Cockrell, Corrie) (Entered: 03/11/2014)

03/21/2014 03/31/2014 04/18/2014 04/18/2014 04/25/2014
07/01/2014
07/02/2014

57 RESPONSE to Motion re 56 MOTION to Strike 55 Attachment,, filed by Mississippi Department of Education (Matheny, Justin) (Entered: 03/21/2014)
58 RESPONSE to Motion re 57 Response to Motion in Further Support of Motion to Deem Irrelevant Defendant's Supplement to Its Motion to Dismiss or In the Alternative Motion to Strike filed by E.H., J.P., R.T. (Cockrell, Corrie) (Entered: 03/31/2014)
59 MOTION to Stay Proceedings by E.H., J.P., Mississippi Department of Education (Cockrell, Corrie) (Entered: 04/18/2014)
60 ORDER granting 59 Motion to Stay Proceedings. Signed by District Judge Daniel P. Jordan III on April 18, 2014. (SP) (Entered: 04/18/2014)
Set Hearing: Settlement Conference set for 7/1/2014 09:00 AM before Magistrate Judge F. Keith Ball. Seven (7) days prior to the settlement conference, the parties shall submit via e-mail to ball_chambers@mssd.uscourts.gov an updated CONFIDENTIAL SETTLEMENT MEMORANDUM. All parties are required to be present at the conference unless excused by the Court. If a party believes the scheduled settlement conference would not be productive and should be cancelled, the party is directed to inform the Court via e-mail of the grounds for their belief at least seven (7) days prior to the conference. (JEJ) (Entered: 04/25/2014)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Settlement Conference held on 7/1/2014 in Jackson, MS. Appearing: Jerri Katzerman, Sarah Bidinger, Wendell Hutchinson, Corrie Cockrell, Jody Owens, Jim Comstock-Galagan, Justin Matheny, Wilson Minor, Heather Deaton, Kathy Botelevl and Dr. Jill Benton. This case did not settle. (JEJ) (Entered: 07/02/2014)
Set Hearing: Settlement Conference set for 8/15/2014 09:00 AM before Magistrate Judge F. Keith Ball in chambers. Seven (7) days prior to the settlement conference, the parties shall submit via email to ball_chambers@mssd.uscourts.gov an updated CONFIDENTIAL SETTLEMENT MEMORANDUM. All parties are required to be present at the conference unless excused by the Court. If a party believes the scheduled settlement conference would not be productive and should be cancelled, the party is directed to inform the Court via e-mail of the grounds for their belief at least seven (7) days prior to the conference. (JEJ) (Entered: 07/02/2014)

08/15/2014
08/19/2014 08/22/2014 08/22/2014 08/29/2014 09/29/2014 09/30/2014 06/26/2015 06/29/2015
09/11/2015 09/11/2015

Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Settlement Conference held on 8/15/2014 in Jackson, MS. Appearing: Corrie Cockrell, Jerri Katzerman, Wendell Hutchinson, Rachel Harper, Jody Owens, Wilson Minor, Harold Pizzetta, Gretchen Cagle, Heather Deaton, Kathy Boteler and Kim Benton. This case did not settle. (JEJ) (Entered: 08/19/2014)
Set Hearing: Telephonic Status Conference set for 8/22/2014 09:00 AM before Magistrate Judge F. Keith Ball. Defense counsel shall set up the telephone conference and contact the Court at 601-6084460. (JEJ) (Entered: 08/19/2014)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 8/22/2014 in Jackson, MS. (JEJ) (Entered: 08/22/2014)
Set Hearing: Telephonic Status Conference set for 8/29/2014 08:45 AM before Magistrate Judge F. Keith Ball. Plaintiff's counsel shall set up the conference and contact the Court at 601-608-4460. (JEJ) (Entered: 08/22/2014)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 8/29/2014. (JEJ) (Entered: 08/29/2014)
61 Joint MOTION to Administratively Close the Case by Mississippi Department of Education (Attachments: # 1 Exhibit A - Settlement Agreement)(Minor, Wilson) (Entered: 09/29/2014)
62 ORDER granting 61 Motion administratively close case. Signed by District Judge Daniel P. Jordan, III on 9/30/14. (RRL) (Entered: 09/30/2014)
63 MOTION to Withdraw as Attorney by E.H., J.P. (Cockrell, Corrie) (Entered: 06/26/2015)
TEXT-ONLY ORDER granting 63 Motion to Withdraw as Attorney. Attorney Corrie Wynette Cockrell terminated as to all Plaintiffs. NO FURTHER WRITTEN ORDER SHALL ISSUE. Signed by Magistrate Judge F. Keith Ball on 6/29/2015. (JRB) (Entered: 06/29/2015)
ORAL MOTION to Dismiss this action with prejudice by E.H., J.P., Mississippi Department of Education. (SP) (Entered: 09/11/2015)
64 ORDER granting Oral Motion to Dismiss this action with prejudice. Plaintiffs' claims against MDE are hereby dismissed with prejudice,

with each party to bear its own costs. Signed by District Judge Daniel P. Jordan III on September 11, 2015. (SP) (Entered: 09/11/2015)

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