Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 1 of 36

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------X

:

PATRICK TUYIZERE, SUK MAYA RAI,

:

BBT by her parent and natural guardian BIRKHA :

BOLON, ALI JANAR, CHO CHO WIN, ADO :

LAR, on behalf of themselves and all others

:

similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

UTICA CITY SCHOOL DISTRICT BOARD OF :

EDUCATION, UTICA CITY SCHOOL

:

DISTRICT, BRUCE J. KARAM, Superintendent of :

Utica City School District, in his official capacity, :

:

Defendants.

:

---------------------------------------------------------------X

Index No. 15-cv-488 (TJM)(TWD)
AMENDED CLASS ACTION COMPLAINT

PRELIMINARY STATEMENT

1. This action challenges the Defendants’ policy and practice of excluding limited

English proficient (“LEP”) immigrants aged 17-20 from Thomas R. Proctor High School

(“Proctor High School”) in Utica, N.Y. This action is brought on behalf of six refugees, Patrick

Tuyizere, Suk Maya Rai, BBT by her parent and natural guardian Birkha Bolon, Ali JaNar, Cho

Cho Win, and Ado Lar, and a class of similarly situated individuals.

2. Patrick Tuyizere, Suk Maya Rai, BBT by her parent and natural guardian Birkha

Bolon, Ali JaNar, Cho Cho Win, and Ado Lar are refugees who fled violence and persecution in

their home countries. Each came to the United States longing for freedom and opportunity, only

now to be the subject of national origin discrimination. They want to go to high school, make

American friends, and learn more than just English. But Defendants Utica City School District

Board of Education, Utica City School District, and Superintendent Bruce J. Karam have

1

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 2 of 36
excluded them from high school and diverted them instead to alternative programs that provide limited educational instruction. Their experience is typical among the 17-20 year old refugee population in Utica.
3. For the last 35 years, Utica has served as a safe haven for refugees fleeing violence and persecution in their home countries. The refugee population in Utica is large, comprising nearly 1 out of every 6 residents. Nicknamed “The Second Chance City,” in part for the second chance it offers refugees fleeing persecution, Utica has, in many respects, been welcoming of refugees. The exception: For the last 8 years, Defendants have been excluding LEP immigrants (primarily refugees) over 16 years of age from Proctor High School, the only high school in Utica, and diverting them to alternative education programs.
4. Under New York law, individuals have the right to attend high school until they turn 21 or earn a high school diploma. The last compulsory age of education, i.e., the age until which students are required by law to attend school full time, is 16 years old. While students over 16 may choose to enter into alternative education programs, it must be their choice. For the last eight years, however, the Defendants have been robbing immigrant students of that choice. By contrast, upon information and belief, Defendants allow non-immigrant students over 16 to enroll in Proctor High School.
5. From 2007 until November 2014, the Defendants diverted LEP immigrants aged 17-20 to the “Newcomer Program,” an alternative education program for newly arrived immigrants in Utica. For seven years, the Newcomer Program provided English as a second language (“ESL”) instruction to immigrant students, but no content area instruction, such as math, science, and history. In January 2014, the Newcomer Program began offering high school equivalency classes, commonly known as GED classes, to students who test well on an English
2

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 3 of 36
proficiency exam, while those who do not test well remain in classes that teach only English (“ESL-only” classes).
6. In November 2014, following complaints about the inadequacy of ESL-only instruction for immigrant students aged 17-20, the Oneida-Herkimer-Madison Board of Cooperative Educational Services (“BOCES”), in consultation and coordination with the Defendants, created the Alignment of Pathways and Programs for Learners of English (“APPLE Program”). Located in New Hartford, N.Y., the APPLE Program provides GED classes for LEP immigrants aged 17-18. The Defendants continue to divert LEP immigrants aged 19-20 to the Newcomer Program, excluding them from high school.
7. A GED program is not, in reality, a substitute for a high school education. Compared to high school, GED instruction in the core subjects of reading, writing, science, history and math, is cursory. Students in GED programs are only taught what is necessary to pass the GED exam. In high school, instruction in the core subjects is more in-depth, students can take advanced courses, and they can take art, music, health and physical education classes. Thus, a high school education is not only more rigorous than a GED program, it is more comprehensive. As a consequence, the high school diploma provides its recipients with more promising employment opportunities than recipients of a GED. Yet, in Utica, LEP immigrants aged 17-20 have been relegated to either ESL-only classes or GED programs, with no option to attend high school. Moreover, the limited educational programs available to these students are not located at Proctor High School, leaving them completely segregated from their nonimmigrant peers.
8. The Defendants have violated and continue to violate the rights of LEP immigrants to equal educational opportunities, to be free of national origin discrimination, and to
3

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 4 of 36
attend high school until age 21 under the federal Equal Educational Opportunities Act, Title VI of the Civil Rights Act of 1964, the U.S. and New York Constitutions, and New York law. The named plaintiffs and the class of similarly situated individuals seek a declaration that Defendants’ discriminatory policy and practices are unlawful and an injunction to end those practices.
PARTIES I. The Named Plaintiffs
9. Patrick Tuyizere is an 18-year-old refugee from the Democratic Republic of the Congo. He is a native Kinyarwanda speaker and is not proficient in the English language. Before coming to the United States, Patrick and his family lived in a refugee camp in Rwanda. Patrick and his family were granted refugee status to come to the United States because they feared violence from the conflict in the Congo. In October 2014, Patrick and his family arrived in Utica, N.Y., where they continue to live. Patrick is a student in the APPLE Program, where he receives ESL instruction and basic instruction in the content area subjects, such as math and science, which are tested on the GED exam. Instruction in the APPLE Program is less rigorous and less comprehensive than instruction at Proctor High School. Patrick will not have the opportunity to earn his high school diploma in the APPLE Program.
10. Suk Maya Rai is an 18-year-old refugee from Bhutan. She is a native Nepali speaker and is not proficient in the English language. Before coming to the United States, Suk lived in a refugee camp in Nepal. Suk and her family were granted refugee status to come to the United States because they feared persecution if they returned to Bhutan. In February 2014, Suk and her family arrived in Utica, N.Y., where they continue to live. Suk is a student in the
4

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 5 of 36
Newcomer Program’s ESL-only classes, where she only receives ESL instruction, does not learn content areas subjects, such as science and history, and does not have the opportunity to earn a high school diploma or a GED.
11. Birkha Bolon is the father of BBT. He is a plaintiff in this case bringing claims on behalf of BBT, his minor daughter. BBT is a 17-year-old refugee from Bhutan. She is a native Nepali speaker and is not proficient in the English language. Before coming to the United States, BBT lived in a refugee camp in Nepal. BBT and her family were granted refugee status to come to the United States because they feared persecution if they returned to Bhutan. In early March 2015, BBT and her family arrived in Utica, N.Y., where they continue to live. BBT is currently not receiving any education. The District referred BBT to the GED classes of the Newcomer Program, where she will receive ESL instruction and basic instruction in the content area subjects, such as math and science, which are tested on the GED exam. Instruction in the Newcomer Program’s GED classes is less rigorous and less comprehensive than instruction at Proctor High School. BBT will not have the opportunity to earn a high school diploma in the Newcomer Program.
12. Ali JaNar is a 19-year-old refugee from Myanmar (formerly known as Burma). He is a native Burmese speaker and is not proficient in the English language. Before coming to the United States, Ali lived in a refugee camp in Thailand. Ali and his family were granted refugee status to come to the United States because they feared the Myanmar military would harm them if they returned to Myanmar. In January 2013, Ali and his family arrived in Utica, N.Y., where they continue to live. Ali is a student in the Newcomer Program’s ESL-only classes, where he only receives ESL instruction, does not learn content areas subjects, such as science and history, and does not have the opportunity to earn a high school diploma or a GED.
5

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 6 of 36
13. Cho Cho Win is a 19-year-old refugee from Myanmar. She is a native Burmese speaker and is not proficient in the English language. Before coming to the United States, Cho Cho lived in a refugee camp in Thailand. Cho Cho and her family were granted refugee status to come to the United States because they feared the Myanmar military would harm them if they returned to Myanmar. In June 2013, Cho Cho and her family arrived in Utica, N.Y., where they continue to live. Cho Cho is a student in the Newcomer Program’s ESL only classes, where she does not learn content areas subjects, such as science and history, and does not have the opportunity to earn a high school diploma or a GED.
14. Ado Lar is an 18-year-old refugee from Myanmar. He is a native Burmese speaker and is not proficient in the English language. Before coming to the United States, Ado lived in a refugee camp in Thailand. Ado and his family were granted refugee status to come to the United States because they feared the Myanmar military would harm them if they returned to Myanmar. In August 2014, Ado and his family arrived in Utica, N.Y., where they continue to live. Ado is a student in the Newcomer Program’s ESL-only classes, where he only receives ESL instruction, does not learn content areas subjects, such as science and history, and does not have the opportunity to earn a high school diploma or a GED.
II. The Defendants 15. Defendant Utica City School District Board of Education (the “Board”) has
general control, management and responsibility of the Utica City School District and the public schools within that district, including Proctor High School. The Board is a recipient of federal financial assistance. The Board or its designee evaluates enrollment applications for students entering into grades K-12 and decides which students can attend public schools within the
6

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 7 of 36
district. The Board is a State actor and, at all relevant times referenced in this complaint, acted under color of State law within the meaning of 42 U.S.C. § 1983.
16. Defendant Utica City School District is the public school district in and for the City of Utica, N.Y. The District is a recipient of federal financial assistance. The District is a State actor and, at all relevant times referenced in this complaint, acted under color of State law as defined by 42 U.S.C. § 1983.
17. Defendant Bruce J. Karam is the Superintendent of the Utica City School District and as such is charged with the duty to enforce all provisions of law and all rules and regulations relating to the management of the schools, and other educational, social and recreational activities under the direction of the Board. Superintendent Karam is a State actor and, at all relevant times referenced in this complaint, acted under color of State law within the meaning of 42 U.S.C. § 1983. Superintendent Karam is sued in his official capacity.
FACTS
I. Plaintiff Patrick Tuyizere 18. Patrick Tuyizere is an 18-year-old refugee. He was born in a refugee camp in
Rwanda, but he and his family are from the Democratic Republic of the Congo. His family escaped the decades-old conflict in the Congo and fled to Rwanda. The conflict began in the 1990s after the ethnic Hutu militia that led the genocide against ethnic Tutsis in Rwanda fled to the Congo and then led raids against the Tutsi-led Rwandan government. This conflict has claimed over 5.4 million lives, 2.7 million of them children.
19. Patrick’s native language is Kinyarwanda. He is not proficient in the English language.
7

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 8 of 36
20. He and his family lived in a Rwandan refugee camp for approximately 17 years. In around August 2014 they learned that they would be able to go to the United States.
21. In approximately August 2014, Patrick and his family moved to Baltimore, Maryland. When Patrick arrived in Baltimore, he was 17 years old. The local school district in Baltimore admitted him to high school, and Patrick began 9th grade classes in September 2014. Patrick’s relatives struggled to find employment in Baltimore, and, in early October 2014, he and his family moved to Utica, N.Y., where they continue to live.
22. A church advocate helped Patrick and his family find an apartment and brought them to the Mohawk Valley Resource Center for Refugees (“Refugee Center”) to help them get the resources they needed to settle in Utica. The advocate got a school enrollment application from someone at the Refugee Center who told him he would need to bring the form to the District’s offices.
23. In October 2014, the advocate called the District and spoke with Tammy Rightmier, the assistant to Elizabeth Paul, the District’s Administrator of Special Education. Ms. Paul evaluates enrollment applications and decides which LEP immigrant students can attend Proctor High School. The advocate explained that he would like to submit enrollment forms for a newly arrived refugee, and Ms. Rightmier said she would get back to him.
24. After several days passed, the advocate again called the District and spoke with Ms. Rightmier, who told the advocate that he had to bring the enrollment forms to the Refugee Center to give them to an academic coach—a District employee. The advocate then met with the academic coach to whom he was referred, and the academic coach submitted Patrick’s enrollment forms to Ms. Paul in November 2014.
8

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 9 of 36
25. After approximately one week, the advocate asked a church member to follow up on the application by going to the District’s offices to see when Patrick would be admitted into Proctor High School. The church member then spoke with Ms. Paul, and Ms. Paul told her that the District would not admit Patrick into Proctor High School because he was too old. Instead, the District would place Patrick in the APPLE Program. Upon information and belief, Ms. Paul placed Patrick in the APPLE Program in compliance with the Defendants’ policy of excluding LEP immigrants aged 17-20 from Proctor High School.
26. Since approximately December 2014, Patrick has been a student in the APPLE Program. He is not satisfied with the limited education he is receiving in the APPLE Program. Instruction in the APPLE Program is less rigorous and less comprehensive than instruction at Proctor High School. Patrick wants to become a doctor and feels like he is not learning enough science in his GED classes to prepare him to realize his dream. He is frustrated with the limited education services available to him in the APPLE Program. Patrick is unable to take classes at Proctor High School or benefit from any of the high school’s instructional services, programs, or activities. He wants to attend high school and be in classes with native English speakers. He wants to earn a high school diploma, so he can work towards his dream of becoming a doctor. He does not understand why he is not allowed to go to high school.
II. Plaintiff Suk Maya Rai 27. Suk Maya Rai is an 18-year-old refugee. Suk was born in a refugee camp in
Nepal. She and her family are members of the Lhotshampa ethnic group from Bhutan. In the 1990s, the Bhutanese military forcibly expelled the Lhotshampa people, including Suk’s parents, from Bhutan because the Lhotshampa people refused to give up their language and customs.
9

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 10 of 36
28. Suk’s native language is Nepali. She is not proficient in the English language. 29. Suk and her family lived in a refugee camp in Nepal for about 17 years. In 2014, Suk learned that she and her family would have the opportunity to come to the United States. 30. In February 2014, Suk and her family arrived in Utica, N.Y., where they continue to live. When Suk arrived in Utica, she was assigned a caseworker by the Refugee Center. Upon information and belief, following the Defendants’ directives and policy, the caseworker placed Suk in the Newcomer Program because she is an LEP immigrant, and, at the time, was 17 years old. After Suk took an English proficiency exam, she was placed in the Newcomer Program’s ESL-only classes. 31. In February 2014, Suk’s older brother, who speaks English, asked her caseworker why Suk was not placed in high school. The caseworker responded that Suk was not eligible for high school. A couple of months later, Suk’s brother asked an academic coach—a District employee—to enroll Suk in high school. The academic coach responded that the District does not want students like Suk—which her brother understood to mean older LEP immigrants. 32. Since February 2014, Suk has been a student in the Newcomer Program’s ESLonly classes. She is not satisfied with the limited education she is receiving in the Newcomer Program’s ESL-only classes. She has no opportunity to earn her high school diploma or a GED. In her refugee camp in Nepal, Suk was taught six subjects in school. In the Newcomer Program’s ESL-only classes, she is only taught English. She is upset that, for over a year, she has only been able to learn English. Suk is unable to take classes at Proctor High School or benefit from any of the high school’s instructional services, programs, or activities. She dreams of attending college and becoming a nurse, but she knows she cannot do so without learning
10

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 11 of 36
more than just English. She would like the opportunity to earn a high school diploma to work towards her dreams.
III. Plaintiff BBT by her parent and natural guardian Birkha Bolon 33. Birkha Bolon is the father of BBT. He is a plaintiff in this case bringing claims
on behalf of BBT, his minor daughter. BBT is a 17-year-old refugee. She was born in a refugee camp in Nepal. She and her family are members of the Lhotshampa ethnic group from Bhutan. In the 1990s, the Bhutanese military forcibly expelled the Lhotshampa people, including BBT’s parents and grandparents, from Bhutan because the Lhotshampa people refused to give up their language and customs.
34. BBT’s native language is Nepali. She is not proficient in the English language. 35. BBT and her family lived in a refugee camp in Nepal for about 17 years. In 2015, BBT learned that she and her family would have the opportunity to come to the United States. 36. On March 6, 2015, BBT and her family arrived in Utica, N.Y., where they continue to live. When BBT arrived in Utica, she was assigned a caseworker by the Refugee Center. Upon information and belief, the caseworker collected BBT’s information and sent it to the District for enrollment. Approximately a few weeks later, BBT received a letter from Proctor High School, referring her to the Newcomer Program’s GED classes. BBT then brought the letter to an academic coach—a District employee—to ask why she was not admitted in Proctor High School. The academic coach told BBT that she was too old to go to high school. BBT continued to ask questions and the academic coach said he would speak to his boss at the District. The academic coach then asked BBT for her I-94 form (a U.S. Customs and Border Protection form showing a foreigner’s arrival-departure record) and her alien registration
11

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 12 of 36
number—which school districts are prohibited from requesting to avoid intimidating undocumented immigrants from enrolling in school.
37. BBT has not been admitted into Proctor High School. She will soon be admitted into the GED classes of the Newcomer Program. But she would like to go to high school. Instruction in the Newcomer Program’s GED classes is less rigorous and less comprehensive than instruction at Proctor High School. BBT is unable to take classes at Proctor High School or benefit from any of the high school’s instructional services, programs, or activities. BBT’s grandparents are disabled, and she would like to become a doctor to help disabled people like her grandparents. She would like to learn challenging subjects and earn her high school diploma, so she could work towards her dream of becoming a doctor.
IV. Plaintiff Ali JaNar 38. Ali JaNar is a 19-year-old refugee. He was born in a refugee camp in Thailand,
but he and his family are from Myanmar. Myanmar is the largest source of refugees in Southeast Asia due to the government’s persecution of ethnic minorities. Before he was born, his family fled Myanmar to escape ethnic persecution by the Myanmar military.
39. Ali’s native language is Burmese. He is not proficient in the English language. 40. Ali and his family lived in a refugee camp in Thailand for about 17 years. The refugee camp was located in the jungles of Thailand. In 2012, he and his family learned that they would have the opportunity to come to the United States. 41. On January 17, 2013, he and his family arrived in Utica, N.Y., where they continue to live. When Ali arrived in Utica, he was assigned a caseworker by the Refugee Center. Upon information and belief, following the Defendants’ directives and policy, the
12

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 13 of 36
caseworker placed Ali in the Newcomer Program because he is an LEP immigrant, and, at the time, was 17 years old. Ali’s caseworker told him he was not eligible for high school because he was already 17. Ali then began attending classes at the Newcomer Program, where he was only taught ESL. In approximately April or May 2013, Ali and a friend of his, who speaks English and was attending Proctor High School, went to Proctor High School to attempt to get Ali admitted. Ali and his friend spoke to a school official at Proctor High School who told them that Ali could not attend high school because of his age.
42. Ali continues to take ESL-only classes at the Newcomer Program. He is not satisfied with the limited education he is receiving in the Newcomer Program’s ESL-only classes. He has no opportunity to earn his high school diploma or a GED. He is upset that, for over two years, he has only been able to learn English. He is unable to take classes at Proctor High School or benefit from any of the high school’s instructional services, programs, or activities. Ali wants the best chance to succeed in life, and he knows a high school education can give him that chance.
V. Plaintiff Cho Cho Win 43. Cho Cho Win is a 19-year-old refugee. She was born in a refugee camp in
Thailand, but she and her family are from Myanmar. Before she was born, her family fled Myanmar to escape ethnic persecution by the Myanmar military.
44. Cho Cho’s native language is Burmese. She is not proficient in the English language.
13

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 14 of 36
45. Cho Cho and her family lived in a refugee camp in Thailand for about 17 years. The refugee camp was located in the jungles of Thailand. In 2013, Cho Cho learned that she and her family would have the opportunity to come to the United States.
46. In June 2013, Cho Cho and her family arrived in Utica, N.Y., where they continue to live. When Cho Cho arrived in Utica, she was assigned a caseworker by the Refugee Center. Upon information and belief, following the Defendants’ directives and policy, the caseworker placed Cho Cho in the Newcomer Program’s ESL-only classes at the Refugee Center because she is an LEP immigrant, and, at the time, was 17 years old. The caseworker told Cho Cho that she was not eligible to attend the District’s high school because of her age.
47. Since 2013, Cho Cho has been a student in the Newcomer Program’s ESL-only classes. She is not satisfied with the limited education she is receiving in the Newcomer Program’s ESL-only classes. She is unable to take classes at Proctor High School or benefit from any of the high school’s instructional services, programs, or activities. She is upset that, for about two years, she has only been able to learn English. She dreams of attending college and becoming an elementary school teacher, but she cannot earn a high school diploma to work towards her dreams.
VI. Plaintiff Ado Lar 48. Ado Lar is an 18-year-old refugee. He was born in a refugee camp in Thailand,
but he and his family are from Myanmar. Before he was born, his family fled Myanmar to escape ethnic persecution by the Myanmar military.
49. Ado’s native language is Burmese. He is not proficient in the English language.
14

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 15 of 36
50. Ado and his family lived in a refugee camp in Thailand for about 17 years. The refugee camp was located in the jungles of Thailand. In 2014, Ado learned that he and his family would have the opportunity to come to the United States.
51. In August 2014, Ado and his family arrived in Utica, N.Y., where they continue to live. When Ado arrived in Utica, he was assigned a caseworker by the Refugee Center. Upon information and belief, following the Defendants’ directives and policy, the caseworker placed Ado in the Newcomer Program’s ESL-only classes at the Refugee Center because he is an LEP immigrant, and, at the time, was 17 years old. The caseworker told Ado that because he had already turned 17, he was not eligible to attend the District’s high school.
52. Since 2014, Ado has been a student in the Newcomer Program’s ESL-only classes. He is not satisfied with the limited education he is receiving in the Newcomer Program’s ESL-only classes. Ado wants to learn more subjects. He is unable to take classes at Proctor High School or benefit from any of the high school’s instructional services, programs, or activities. He is upset that, for almost one year, he has only been able to learn English. He dreams of attending college and becoming an engineer, but he cannot earn a high school diploma to work towards his dream.
VII. Background 53. The stories of Patrick, Suk, BBT, Ali, Cho Cho, and Ado, are typical in Utica,
N.Y. Their stories are just the latest examples of the Defendants’ eight-year practice of excluding LEP immigrants aged 17-20 from high school and diverting them to alternative education programs. While the programs have changed over the years, Defendants’ policy and practice of excluding certain immigrants from high school has not. Defendants continue to
15

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 16 of 36
prevent LEP immigrants aged 17-20 from submitting enrollment applications, deny their enrollment requests, and even ignore enrollment requests entirely.
The Legal Right to Equal Education 54. The right to a free public education is rooted in Article 11, § 1 of the New York
Constitution. Under New York Education law § 3202(1), all individuals, regardless of their national origin, have the right to attend the high school within their school district until they turn 21 years of age or receive a high school diploma. While the age of compulsory education ends at 16, no one may be precluded from a public school solely because he
55. or she has passed the compulsory age. Even students who have earned a GED diploma, continue to be entitled to a free high school education until they reach 21 years of age.
56. Federal and state law mandate that students with limited English proficiency (otherwise known as English Language Learners) are entitled to equal access to all public school programs and services offered by their school district. To ensure their equal access, both federal and state law require school districts to provide LEP students with programs and services designed to overcome language barriers by helping students gain English proficiency while also learning content area subjects, such as math, science, and history.
57. Students suspected of being limited English proficient must undergo an English language assessment to determine whether, based on State proficiency exams, they are in fact limited English proficient. Under New York Education Law § 3204 and Section 154-1.3 of the Regulations of the Commissioner of the NY State Education Department (“NYSED”), LEP students are entitled to English instruction and grade and age level appropriate instruction in the required subjects, like science, math, and history. Under Section 154-1.3 of the Regulations of
16

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 17 of 36
the Commissioner, if there are 20 or more LEP students who speak the same native language, are at same grade level, and are in the same building, those students are entitled to grade and age level appropriate instruction in the required subjects in a bilingual education program. If there are not enough students for a bilingual education program, LEP students are entitled to grade and age level appropriate instruction in the required subjects in an English as a second language program. Once placed in either a bilingual program or ESL program, students must undergo an annual English language assessment to determine whether they continue to be limited English proficient.
58. Under Title III of the Elementary and Secondary Education Act, federal funds are provided to school districts on the condition that school districts use these funds to help LEP students learn English and meet state academic content and achievement standards. The Board and the District receive Title III funding and other federal funding to provide instructional programs and other services to individuals eligible to attend the public schools within the school district.
59. The problem of school districts refusing to educate immigrant children is not a new one for New York or for this country. Congress passed the Equal Educational Opportunities Act in 1978 to protect immigrants, among others, from school districts that were segregating them from non-immigrant students and failing to provide them with adequate instructional services. The U.S. Department of Justice (“DOJ”) and the U.S. Department of Education’s Office for Civil Rights regularly issue letters and memos to school districts to remind them of their obligations to provide all children, regardless of their national origin or English proficiency, with equal access to public education.
17

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 18 of 36
60. Moreover, in December 2014, after school districts in New York denied unaccompanied minors (i.e., children immigrating to the U.S. without a parent or guardian) access to public education, the New York Attorney General’s office and the NYSED revised Section 100.2(y) of the Regulations of the Commissioner to provide greater procedural protections to children. Now when students submit enrollment applications to a school district, the Regulations of the Commissioner require the school district to admit the student while the district evaluates the student’s enrollment application. School districts now must also decide whether a child is entitled to attend the schools in its district within three business days after the child’s initial application to enroll.
61. Newcomer schools also are not a new concern in the United States. In 1990, the U.S. Department of Education’s Office for Civil Rights issued guidance as to how a Newcomer school for LEP immigrant students could comply with Title VI. The Office for Civil Rights found a Newcomer school in California to be in compliance with Title VI because, among other reasons: (i) enrollment in the Newcomer school was voluntary, meaning the school district informed students’ parents that students can enroll in their home school or the Newcomer school; (ii) attendance in the Newcomer school was limited to one year, after which students return to their home schools; and (iii) the Newcomer school facilities, courses, and extracurricular activities were comparable to the school district’s other schools. Though the Office for Civil Rights issued this guidance on newcomer schools 25 years ago, since 2007 Defendants have been excluding newly arrived immigrants aged 17-20 from high school.
18

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 19 of 36
VIII. The Defendants’ Policy and Practice of Excluding LEP Immigrants Aged 17-20 from Proctor High School 62. Since 2007, LEP immigrants aged 17-20 who have arrived in Utica with hopes of
attending high school have instead been excluded. These immigrants came to the United States for the promise of opportunity for those who study and work hard, but that opportunity has been taken away from them by the Defendants as a result of their discriminatory policy and practice.
63. Since 2007, Defendants have had a policy and practice of excluding LEP immigrants aged 17-20 from high school and diverting them to either the Newcomer Program or the APPLE Program. While the details of how LEP immigrant students aged 17-20 are diverted to alternative programs have changed over time, the Defendants’ policy of diverting them away from high school has not, even though such students have a right to attend Proctor High School under New York law, and a right, under federal and state law, to educational opportunities equal to those available to their non-immigrant peers.
64. In approximately 2007, Superintendent Karam, who at the time held the position of Director of Secondary Education for the District, created the Newcomer Program. Superintendent Karam directed District employees to enroll LEP immigrants aged 17-20 in the Newcomer Program rather than Proctor High School.
65. From 2007 to 2013, the District managed the Newcomer Program. It provided two ESL teachers, textbooks, security and other resources for students in the program. Students in the Newcomer Program were physically separated from their non-immigrant peers at Proctor High School. The Newcomer Program was first located in the District’s administrative building, and, later, it was moved into classrooms at the Westminster Presbyterian Church. The two teachers in the program only taught students English as a second language. There was no formal curriculum.
19

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 20 of 36
66. When they operated the Newcomer Program, the Defendants did not test LEP immigrant students aged 17-20 to determine their level of English proficiency before placing them in the Newcomer Program. Instead, Defendants automatically placed such students in the Newcomer Program and excluded them from Proctor High School. None of the students had the option to transfer from the Newcomer Program into high school, even if their English proficiency improved.
Alternative Programs Change, But Defendants’ Discriminatory Practice Stays the Same 67. In 2013, the Defendants disclaimed responsibility for the Newcomer Program.
They transferred the Newcomer Program’s ESL teachers to elementary schools operated by the District and stopped providing any instructional services to students in the Newcomer Program, leaving approximately 60 students to fend for themselves. The Defendants did not offer students in the Newcomer Program the option to transfer to Proctor High School.
68. Once the Defendants abandoned the Newcomer Program, the Refugee Center took over. It has operated the Newcomer Program continuously since then. Ultimately, the Refugee Center relocated the Newcomer Program into its building at 309 Genesee Street in Utica, nearly two miles away from Proctor High School.
69. Due to its limited resources, the Refugee Center provides for only one teacher to teach approximately 30 students in the Newcomer Program’s ESL-only class. The Refugee Center relies on private donations for textbooks and other supplies for students in the Newcomer Program. The Refugee Center is unable to provide students with either breakfast or lunch, which are provided to financially eligible students at Proctor High School. Sometimes volunteers donate rice to feed Newcomer students. But, mostly, students who do not bring lunch from
20

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 21 of 36
home go without lunch for the school day. The District provides no funding or resources for students in the Newcomer Program’s ESL-only class at the Refugee Center.
70. Students in the Newcomer Program’s ESL-only class cannot earn a high school diploma or GED diploma as part of the program. They have no regular contact with nonimmigrant students. They are placed solely with other refugee students who are limited English proficient.
71. In approximately January 2014, the Madison-Oneida BOCES, the Mohawk Valley Community College (“MVCC”) and the Refugee Center began an off-shoot of the Newcomer Program to provide GED classes to certain refugee and immigrant students between ages 17-20 who tested well on an English proficiency exam. In these classes, students are provided with ESL instruction in the morning and instruction in content areas, such as math and science, in the afternoon to prepare students for the GED exam. MVCC provides for one ESL teacher and Madison-Oneida BOCES provides a teacher for content area instruction.
72. Defendants do not operate or oversee the GED off-shoot of the Newcomer Program. The program’s current location, the Veterans Outreach Center, is located two miles away from Proctor High School. Students enrolled in the GED off-shoot program have no chance to obtain a high school diploma and do not have the option to enroll in Proctor High School.
73. In approximately November 2014, following complaints about the inadequacy of ESL-only instruction at the Newcomer Program, the Oneida-Herkimer-Madison BOCES, in consultation and coordination with the Utica City School District, created the APPLE Program. The APPLE Program is a GED program that admits immigrant students who are age 17 and 18. Students enrolled in the APPLE Program cannot earn a high school diploma. The District buses
21

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 22 of 36
students from Utica to the BOCES Middle Settlement Road Campus in New Hartford, New York, approximately five miles from Proctor High School, to take part in the APPLE Program. Students in the APPLE Program do not have the option to enroll in Proctor High School.
Defendants’ Current Enrollment Policy and Practice Divert LEP Immigrants Away from Proctor High School
74. Since 2007, the Defendants have continuously maintained a policy and practice of excluding LEP immigrant students aged 17-20 from Proctor High School. Elizabeth Paul is the Administrator for Special Education for the District, and, upon information and belief, she is either the Board’s designee who evaluates enrollment applications for students who require specialized instruction and wish to enter high school or has been delegated that authority by the Board’s designee. From 2014-present, Ms. Paul has been enforcing the Defendants’ policy of excluding LEP immigrants aged 17-20 from Proctor High School.
75. When refugees first arrive in Utica, they typically seek services at the Refugee Center. In 2013, the District placed bilingual academic coaches at the Refugee Center. Academic coaches are employees of the District who take their direction from Ms. Paul. One of the roles of the academic coach is to ensure appropriate class and grade-level school placements. Academic coaches help refugee students subject to compulsory education (those 16 and younger) complete the necessary enrollment paperwork for public school and submit that paperwork to Ms. Paul.
76. Upon information and belief, Ms. Paul received instructions from Superintendent Karam to not enroll LEP immigrants aged 17-20 in Proctor High School and to communicate this instruction to other District employees, including academic coaches, and to caseworkers at the Refugee Center.
22

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 23 of 36
77. Ms. Paul and others at the District directed the academic coaches placed at the Refugee Center to not submit enrollment applications for refugee students aged 17-20. Upon information and belief, Ms. Paul occasionally directed the academic coaches and others at the Refugee Center to not submit enrollment applications for refugees who were 16 but would turn 17 within the school year. Ms. Paul and others at the District instructed the academic coaches to instead refer these students to the Newcomer Program or the APPLE Program.
78. At times, rather than refer refugees to academic coaches for enrollment in school, caseworkers would submit enrollment applications to Ms. Paul. Upon information and belief, Ms. Paul and others at the District directed that caseworkers not submit enrollment applications for refugee students aged 17-20 and that they, instead, refer them to the Newcomer Program or the APPLE Program.
79. For those LEP immigrants aged 17-20 for whom the academic coaches or caseworkers submitted enrollment applications, Ms. Paul has either directed the academic coaches to refer the student to the Newcomer Program or the APPLE Program, or Ms. Paul has ignored their enrollment applications.
80. When refugees go directly to the District’s administrative offices to request enrollment in high school, District officials ask the refugees whether they are a native English speaker. When refugees respond that they are not native English speakers, District officials direct them to go to the Refugee Center to submit enrollment applications. At the Refugee Center, the District’s academic coaches, who are District employees, and, at times, the Refugee Center’s caseworkers then refer these refugees to the Newcomer Program or the APPLE Program in accordance with Defendants’ policy of excluding LEP immigrants aged 17-20 from Proctor High School.
23

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 24 of 36
Plaintiffs’ Barriers to Admission to Proctor High School Are Not Unique 81. In recent years, in accordance with the Defendants’ policy and practice, dozens,
if not hundreds, of LEP immigrant students aged 17-20 have been excluded from Proctor High School. Plaintiffs’ experiences of being excluded from Proctor High School and diverted to alternative programs are not unique.
82. A recent example involving two refugees from Myanmar who are members of Karen ethnic group is illustrative. Upon information and belief, following the Defendants’ directives and policy, a Refugee Center caseworker registered them at the Newcomer Program and did not enroll them in Proctor High School because they are LEP immigrants and both 19 years old in 2015.
83. In February 2015, the two refugees told a Karen advocate who volunteers at the Newcomer Program that they would like to go to high school and they asked for the advocate’s help. The advocate agreed to help them.
84. On approximately February 17, 2015, the advocate called the office of Elizabeth Paul to initiate the enrollment application process. Ms. Paul was unavailable, so the advocate spoke to her assistant, Tammy Rightmier. The advocate asked Ms. Rightmier to enroll the two Karen students in high school. Ms. Rightmier asked the advocate whether the students spoke English as a second language, to which the advocate said yes. Ms. Rightmier then directed the advocate to speak with the District’s academic coaches at the Refugee Center.
85. The advocate then asked an academic coach—a District employee—to help the students submit enrollment applications because they wanted to go to high school. The academic coach responded that she could not submit applications for the Karen refugees because they were over the age of 18. The academic coach then directed the advocate back to Ms. Paul’s office.
24

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 25 of 36
86. The advocate next called Ms. Paul’s office and spoke with Ms. Rightmier again. The advocate explained that the academic coach would not submit enrollment applications for the Karen refugees. She then asked Ms. Rightmier to enroll both students in high school. Ms. Rightmier asked for the advocate’s contact information and promised to get back to her soon.
87. After a week had passed without any calls from Ms. Rightmier, the advocate called Ms. Paul’s office again and spoke with Ms. Rightmier, who directed her to the Refugee Center. When the advocate called the main admission’s office and asked for a meeting so she could enroll the Karen refugees, she was told to go to the Refugee Center to speak with an academic coach.
88. The next day, the advocate and the Karen refugees met with an academic coach— a District employee—at the Refugee Center, and they asked the academic coach to submit enrollment applications for the refugees. The academic coach said he could not do so because of their age and directed them again to Ms. Paul.
89. That same day, the advocate went to the District’s headquarters with both Karen refugees. The advocate asked to see Ms. Paul, but Ms. Rightmier came to see her instead in the lobby of the building. Ms. Rightmier again told the advocate that the Karen refugees could not fill out enrollment forms at the District’s offices and that it was the Refugee Center’s job to submit enrollment applications. Ms. Rightmier promised to call an academic coach at the Refugee Center after their meeting to ask her to submit enrollment forms for the Karen refugees.
90. Later that day, the advocate went to see the academic coach whom Ms. Rightmier promised to call. But the academic coach did not receive a call from Ms. Rightmier. The academic coach suggested that the advocate ask the refugees’ caseworker at the Refugee Center
25

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 26 of 36
to register the students for high school. But the caseworker again told the advocate that she could not submit enrollment forms for the students because of their age.
91. The advocate then obtained enrollment applications from the caseworker. The Karen refugees completed them.
92. On March 12, the advocate went to the District’s offices and handed the enrollment applications to Ms. Rightmier. The advocate asked Ms. Rightmier to enroll the students in school, and she asked for Ms. Rightmier’s email address so she could follow up. Ms. Rightmier said she would let the advocate know the District’s decision soon.
93. After a week passed without a response, one month after the advocate first requested enrollment for the students, the advocate emailed Ms. Rightmier and again asked that the students be enrolled into Proctor High School. The advocate received no substantive response to additional emails inquiring on the status of the applications.
94. On April 13, an academic coach—a District employee—met with one of the Karen refugees and explained why the APPLE Program is better for her than high school. The Karen refugee insisted on going to high school.
95. On April 14, Ms. Rightmier emailed the advocate and told her that both Karen refugees could go to high school beginning on April 20—two months after the advocate first requested their enrollment.
96. Unlike most other immigrants aged 17-20, the Karen refugees had a dogged advocate who insisted that they be admitted into high school. Unlike their non-immigrant peers, they needed a dogged advocate to be admitted into high school.
97. The Karen refugees are among a small number of LEP immigrant students aged 17-20 who have gained admission to Proctor High School only because they had a lawyer or
26

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 27 of 36
other advocate to insist upon their admission. When lawyers write to the District and demand, under the threat of litigation, that their clients be admitted into Proctor High School, Defendants often admit them. Other non-lawyer advocates have to be unrelenting in their efforts to get LEP immigrants aged 17-20 admitted.
The Defendants’ Policy and Practice of Diverting LEP Immigrant Students Aged 17-20 from Proctor High School Is Discriminatory
98. Defendants expressly consider the native language and English proficiency level of students aged 17-20 who seek enrollment in Proctor High School. While LEP immigrant students aged 17-20 are excluded from Proctor High School, in contrast, upon information and belief, Defendants allow non-immigrant students aged 17-20 to attend Proctor High School if they request enrollment. Defendants thus treat students seeking enrollment in Proctor High School differently on the basis of national origin.
99. Defendants’ discriminatory treatment of immigrant students on the basis of national origin extends beyond Proctor High School. Defendants also exclude immigrants from the District’s GED program. Indeed, the teacher for the District’s GED program, Joseph Mootz, has said that he will not take refugee or immigrant students in the District’s GED class and he takes his orders from Superintendent Karam, a defendant in this action, who is responsible for overseeing enrollment policies for the Utica schools. Upon information and belief, Superintendent Karam instructed Mr. Mootz to not accept refugees in the District’s GED classes. Mr. Mootz has also said that Utica should just send all the refugees back to their home countries.
100. As a result of the Defendants’ policy and practice of diverting LEP immigrant students aged 17-20 from Proctor High School, none of the students enrolled in the Newcomer Program or the APPLE Program has access to the instructional programs, services, physical
27

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 28 of 36
education programs, support services, and extra-curricular activities provided by Proctor High School. They are physically segregated from Proctor High School students and have no regular contact with English-speaking students. They are placed solely with other immigrant students who are limited English proficient.
101. The educational opportunities available to students in the Newcomer Program and the APPLE Program are not equivalent to those available to non-immigrant and non-LEP students at Proctor High School. Students enrolled in the Newcomer Program and APPLE Program have little or no access to instruction on content areas such as math, science, and history, unlike their non-immigrant peers at Proctor High School. They also have no access to advanced courses and classes in art, music, health, and physical education.
CLASS ACTION ALLEGATIONS 102. Plaintiffs bring this action on their own behalf and, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of all LEP immigrants aged 17-20 who are eligible to attend public high school in Utica, N.Y. and who are, were, or will be excluded from public school because of Defendants’ discriminatory enrollment policy. 103. All four requirements of Rule 23(a) are satisfied:
(a) Numerosity: Joinder of all class members is impracticable because of the size of the class. There are approximately 55 LEP immigrant students aged 17-20 enrolled in the Newcomer Program and APPLE Program who have been unlawfully excluded from Proctor High School.
(b) Commonality: There are questions of law and fact common to all members of the class, including, but not limited to, whether the Defendants discriminate against LEP immigrants aged 17-20 by excluding them from high school and diverting them to alternative education programs.
(c) Typicality: The claims of the named Plaintiffs are typical of those of the class. The named Plaintiffs, like all class members, allege that the Defendants have deprived them of their right to a high school education by excluding them from Proctor High School and
28

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 29 of 36
by diverting them to alternative education programs, and that Defendants’ policy is discriminatory. All class members will benefit from an end to this discriminatory policy.
(d) Adequacy of Representation: The named Plaintiffs and class counsel will fairly and adequately represent the interests of the class. The named Plaintiffs are committed to obtaining declaratory and injunctive relief that will benefit the entire class by ending the Defendants’ discriminatory practice towards LEP immigrants aged 17-20, and their interests in this matter are not antagonistic to other class members. Class counsel have many years of combined experience in complex civil litigation, civil rights and class action litigation.
104. Class-wide declaratory and injunctive relief are appropriate under Rule 23(b)(2) because the Defendants have acted or refused to act on grounds generally applicable to the class as a whole.
JURISDICTION AND VENUE 105. This action arises under the Constitution and laws of the United States, including 20 U.S.C. § 1703, 42 U.S.C. § 2000d et seq., and 42 U.S.C. § 1983. This Court has subjectmatter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). This Court may exercise supplemental jurisdiction over the claims based on New York law pursuant to 28 U.S.C. § 1367. 106. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201 and 2202. This Court may also grant injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988. 107. Venue is proper in the Northern District of New York pursuant to 28 U.S.C. § 1391(b). All the events described in this complaint occurred in the Northern District of New York.
29

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 30 of 36
CLAIMS FOR RELIEF
First Cause Of Action Declaratory and Injunctive Relief for the Named Plaintiffs and the Class Against the Defendant Utica City School District Board of Education and Defendant Utica City
School District for Violation of the Equal Educational Opportunities Act 108. The named Plaintiffs, on behalf of themselves and all others similarly situated, restate and re-allege and incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein. 109. The Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1703, provides in relevant part: No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by: (a) the deliberate segregation by an educational agency of students on the basis of race, color, or national origin among or within schools; (f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs. 110. Through their actions and inactions, as set forth above, the Board and the District deliberately segregated plaintiffs because of their national origin. 111. Through their actions and inactions, as set forth above, the Board and the District failed to take appropriate action on behalf of LEP immigrants aged 17-20 to overcome language barriers that interfere with and impede their equal participation in the District’s instructional programs. The conduct of the Board and the District, as set forth above, has a discriminatory effect based on national origin and, as a result, has violated and continues to violate the rights of plaintiffs under the Equal Educational Opportunities Act. 112. As a result of the Board and the District’s violations, plaintiffs have suffered and will continue to suffer from the lack of a high school education, inferior instructional programs
30

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 31 of 36
and services, and loss of educational and employment opportunities. The named Plaintiffs, on behalf of themselves and others similarly situated, seek declaratory and injunctive relief remedying these ongoing and systemic violations.
Second Cause of Action Declaratory and Injunctive Relief for the Named Plaintiffs and the Class Against the Defendant Utica City School District Board of Education and Defendant Utica City
School District for Violation of Title VI of the Civil Rights Act of 1964 113. The named Plaintiffs, on behalf of themselves and all others similarly situated, restate and re-allege and incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein. 114. Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., provides that no person in the United States shall, on the basis of race, color or national origin, be denied the benefits of or be subject to discrimination under any program receiving federal funding. 115. As recipients of federal funding, the Board and the District were prohibited from discriminating against Plaintiffs by excluding them from instructional services, failing to provide them with instructional services, or providing them with inferior services on the basis of their national origin. 116. Through their actions and inactions, as set forth above, the Board and the District discriminated against plaintiffs on account of their national origin. 117. As a result of the Board and District’s violations, plaintiffs have and will continue to suffer from the lack of a high school education, inferior instructional programs and services, and loss of educational and employment opportunities. The named Plaintiffs, on behalf of
31

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 32 of 36
themselves and others similarly situated, seek declaratory and injunctive relief remedying these ongoing systemic violations.
Third Cause of Action Declaratory and Injunctive Relief for the Named Plaintiffs and the Class Against the
Defendants for Violation of the New York Education Law 118. The named Plaintiffs, on behalf of themselves and all others similarly situated, restate and re-allege and incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein. 119. New York Education Law § 3202(1) provides that any person over five and under twenty-one years of age, who lives in a school district and has not received a high school diploma, is entitled to attend public school in the district. 120. Through their actions and inactions, as set forth above, Defendants have violated plaintiffs’ rights under NY Education Law § 3202(1). 121. As a result of the Defendants’ violations, plaintiffs have suffered and will continue to suffer from the lack of a high school education, inferior instructional programs and services, and loss of educational and employment opportunities. The named Plaintiffs, on behalf of themselves and others similarly situated, seek declaratory and injunctive relief remedying these ongoing and systemic violations.
32

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 33 of 36
Fourth Cause of Action Declaratory and Injunctive Relief for the Named Plaintiffs and the Class Against the
Defendants for Violation of the Fourteenth Amendment Equal Protection Clause
122. The named Plaintiffs, on behalf of themselves and all others similarly situated, restate and re-allege and incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein.
123. Through their actions and inactions, as set forth above, the Defendants violated the Fourteenth Amendment Equal Protection rights of the named Plaintiffs and all others similarly situated by discriminating against them because of their national origin.
124. As a result of Defendant’s violations, Plaintiffs have suffered and will continue to suffer from the lack of a high school education, inferior instructional programs and services, and loss of educational and employment opportunities. The named Plaintiffs, on behalf of themselves and others similarly situated, seek declaratory and injunctive relief, under 42 U.S.C. § 1983, remedying these ongoing systemic constitutional violations.
Fifth Cause of Action Declaratory and Injunctive Relief for the Named Plaintiffs and the Class Against the Defendant Utica City School District Board of Education for Violation of the Fourteenth
Amendment Due Process Clause
125. The named Plaintiffs, on behalf of themselves and all others similarly situated, restate and re-allege and incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein.
126. Through its actions and inactions, as set forth above, the Board or its designee violated the Fourteenth Amendment Due Process rights of the named Plaintiffs and all others
33

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 34 of 36
similarly situated by denying them their right to attend high school without providing them with notice or an opportunity to be heard.
127. As a result of Defendants’ violations, Plaintiffs have suffered and will continue to suffer from the lack of a high school education, inferior instructional programs and services, and loss of educational and employment opportunities. The named Plaintiffs, on behalf of themselves and others similarly situated, seek declaratory and injunctive relief, under 42 U.S.C. § 1983, remedying these ongoing systemic constitutional violations.
Sixth Cause of Action Declaratory and Injunctive Relief for the Named Plaintiffs and the Class Against the Defendant Utica City School District Board of Education for Violation of the New York
State Constitution’s Due Process Clause
128. The named Plaintiffs, on behalf of themselves and all others similarly situated, restate and re-allege and incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein.
129. Through its actions and inactions, as set forth above, the Board or its designee violated the New York State Due Process rights of the named Plaintiffs and all others similarly situated by denying them their right to attend high school without providing them with notice or an opportunity to be heard.
130. As a result of Defendant’s violations, Plaintiffs have suffered and will continue to suffer from the lack of a high school education, inferior instructional programs and services, loss of educational and employment opportunities. The named Plaintiffs, on behalf of themselves and others similarly situated, seek declaratory and injunctive relief remedying these ongoing systemic constitutional violations.
34

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 35 of 36
REQUESTS FOR RELIEF
WHEREFORE the plaintiffs respectfully request that the Court: a. Assume jurisdiction over this matter; b. Certify this action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2); c. Declare that Defendants’ acts and omissions violated the named Plaintiffs and class members’ rights under the Equal Educational Opportunities Act; d. Declare that the Defendants’ acts and omissions violated the named Plaintiffs and class members’ rights under Section 601 of Title VI of the Civil Rights Act of 1964; e. Declare that Defendants’ acts and omissions violated the named Plaintiffs and class members’ right to a high school education under New York Education Law; f. Declare that the Defendants’ acts and omissions violated the named Plaintiffs and class members’ rights under the Fourteenth Amendment Equal Protection Clause; g. Declare that Defendant’s acts and omissions violated the named Plaintiffs and class members’ rights under the Fourteenth Amendment Due Process Clause; h. Declare that Defendant’s acts and omissions violated the named Plaintiffs and class members’ rights under the New York State Constitution’s Due Process Clause; i. Enter permanent injunctive relief, in the form of: a. an order requiring Defendants to enroll LEP immigrants aged 17-20 in Proctor High School if the immigrants want to go to high school, are residents of the Utica City School District, and have not yet turned 21 years old; b. an order requiring Defendants to adopt policies, procedures, and training ensuring that Defendants end their ongoing violations of the Equal Educational Opportunities Act, Title VI; the U.S. and New York Constitutions, and state law; c. an order requiring Defendants to provide compensatory education to plaintiffs to remedy the educational deficits caused by Defendants’ policy and practice of excluding plaintiffs from Proctor High School; j. Award the plaintiffs reasonable attorney’s fees and costs under 42 U.S.C. 1988; and k. Grant any other relief the Court deems necessary and proper.
35

Case 6:15-cv-00488-DNH-TWD Document 6 Filed 04/27/15 Page 36 of 36

Dated: April 27, 2015 New York, New York

Respectfully submitted,

PHILIP DESGRANGES (Bar No. 519350) ALEXIS KARTERON (Bar No. 518840) ARTHUR EISENBERG (Bar No. 101576) NEW YORK CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 Tel: (212) 607-3300 pdesgranges@nyclu.org akarteron@nyclu.org aeisenberg@nyclu.org
SUSAN M. YOUNG (Bar No. 102862) SAMUEL C. YOUNG (Bar No. 508916) LEGAL SERVICES OF CENTRAL NEW YORK 472 S. Salina Street Syracuse, New York 13202 Tel: (315) 703-6500 syoung@lscny.org samyoung@lscny.org
Attorneys for Plaintiffs

36

 
 Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 1 of 12

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
UTICA CITY SCHOOL DISTRICT BOARD OF EDUCATION, UTICA CITY SCHOOL DISTRICT and BRUCE J. KARAM, Superintendent of Utica City School District, in his official capacity,
Defendants/Third Party Plaintiffs,
vs.
MOHAWK VALLEY RESOURCE CENTER FOR REFUGEES,
Third Party Defendant.

TIDRDPARTY COMPLAINT
Case No.

The Third Party Plaintiffs, through their attorney, Donald R. Gerace, Esq., complain of the Third Party Defendant as follows:
JURISDICTIONAL STATEMENT 1. The Court has jurisdiction of this action pursuant to Rule 14 of the Federal Rules of Civil Procedure in that jurisdiction of the main action is pursuant to 20 U.S.C. §1703, 42 U.S.C. §2000(d), et seq. and 42 U.S.C. §1983 as well as 28 U.S.C. §§1331, 1343(a)(3) and 1367.
VENUE 2. This action properly lies in the United States District Court for the Northern District of New York, pursuant to 28 U.S.C. §139l(b) because the claims alleged in the main action as well as this third party action arose in this judicial district.

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 2 of 12
PRELIMINARY STATEMENT 3. This is a third party action brought to recover monetary damages against the named Third Party Defendant for whatever monetary damages, if any, that are assessed to the Third Party Plaintiffs in the main action. The main action alleges that the Defendants have a policy and practices of excluding limited English proficient (LEP) immigrants aged 17-20 from enrolling at Thomas R. Proctor High School (Proctor High School) in Utica, New York. The main action was brought on behalf of six refugees, Patrick Tuyizere, Suk Maya Rai, BBT by her parent and natural guardian Birkha Bolon, Ali Janar, Cho Cho Win and Ado Lar and a class of similarly situated individuals. Said action was brought against the Defendants/Third Party Plaintiffs in their capacity as state actors. Said action requests declaratory, injunctive and monetary relief against the Defendants/Third Party Plaintiffs.
PARTIES 4. The named Plaintiffs in the main action are Patrick Tuyizere, Suk Maya Rai, BBT by her parent and natural guardian Birkha Bolon, Ali Janar, Cho Cho Win and Ado Lar. 5. The Defendant/Third Party Plaintiff Utica City School District Board of Education (hereinafter "BOE") is an elected board which has the general control, management and responsibility of the Utica City School District. 6. Defendant/Third Party Plaintiff Utica City School District (hereinafter "UCSD") is a public school district in and for the City of Utica.
-2-

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 3 of 12
7. Defendant/Third Party Plaintiff Bruce J. Karam is the Superintendent of Schools of the Utica City School District.
8. Third Party Defendant Mohawk Valley Resource Center for Refugees (hereinafter "Refugee Center") is a New York State Domestic Not-For-Profit Corporation with principal offices located at 309 Genesee Street, Utica, New York. Said Refugee Center is typically the first point of contact for refugees immigrating to the City of Utica. The Refugee Center is a recipient of federal financial assistance.
FACTS 9. The Refugee Center was founded on May 14, 1981 to assist refugees immigrating to the Utica area with their relocation efforts. The Refugee Center provides translator services, community services and educational services for both adult and schoolage members ofsaid refugee population. 10. The Refugee Center employs caseworkers and interpreters who meet with incoming refugees to assist the same with their needs. 11. The Refugee Center has provided a Newcomer Program for newly arrived 1721 year old refugees which consists of instruction in the English language, employment preparation, computer instruction and referrals to High School Equivalency (GED) programs since 20 13. 12. Since 2013, the Third Party Plaintiffs have had no administrative, managerial, funding or placement control over the Refugee Center's Newcomer Program.
- 3-

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 4 of 12
13. As one of the first and main points of contact with refugees immigrating to the Utica area, the Refugee Center has assumed the duty to the Third Party Plaintiffs and the Plaintiffs in the main action to provide information to said refugees as to what community and educational services are available to said refugees and to refer said refugees to the available and appropriate educational institutions that said refugees qualify for and are entitled to pursuant to the Equal Educational Opportunities Act of 1974 (20 U.S.C. §1703) and New York Education Law §3202.
14. As part of the aforementioned duty of the Refugee Center, it had an obligation to notify the Plaintiffs in the main action as to what educational services and programs were available to said Plaintiffs and the manner in which to make application for such educational services and programs.
15. As part of the aforementioned duty of the Refugee Center, it had an obligation to notify the Third Party Plaintiffs of the existence of educationally eligible refugees residing within the Utica City School District attendance area who wished to attend school in the Utica City School District or appropriate alternative education programs available to said refugees.
16. As part of the aforementioned duty of the Refugee Center, it had an obligation to refer to the Third Party Plaintiffs those educationally eligible refugees residing within the Utica City School District attendance area who wished to enroll in school in the Utica City School District for attendance purposes.
-4-

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 5 of 12
17. Upon information and belief, the source and grounds for said belief being the allegations contained in the Complaint filed in the main action, the Refugee Center's directors, administrators, caseworkers, agents and/or translators, failed to correctly notify the Plaintiffs in the main action as to what educational services and programs were available to said Plaintiffs in the Utica City School District.
18. Upon information and belief, the source and grounds for said belief being the same as alleged in Paragraph "17" above, the Refugee Center's directors, administrators, caseworkers, agents and/or translators incorrectly and negligently advised the Plaintiffs in the main action that they were not eligible to enroll and attend school in the Utica City School District based upon their respective ages.
19. Upon information and belief, the source and grounds for said belief being the same as alleged in Paragraph "17'' above, the Refugee Center's directors, administrators, caseworkers, agents and/or translators negligently failed to advise the Plaintiffs in the main action as to how to make application for enrollment in the Utica City School District.
20. Upon information and belief, the sources and grounds being the same as alleged in Paragraph "17" above, the Refugee Center's directors, administrators, caseworkers, agents and/or translators negligently failed to notify the Utica City School District of the Plaintiffs' existence and their desire to enroll in the Utica City School District to attend Proctor High School.
-5-

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 6 of 12
AS AND FOR A FIRST CAUSE OF ACTION 21 . The Third Party Plaintiffs restate, reallege and incorporate by reference the allegations in the foregoing Paragraphs of this Complaint as if fully set forth herein. 22. Through the actions and inactions of its directors, administrators, caseworkers, agents and/or translators as set forth above, the Refugee Center negligently failed to take appropriate action on behalf of the Third Party Plaintiffs and the main action Plaintiffs to properly inform the main action Plaintiffs as to what educational services and programs that were available to said Plaintiffs in the Utica City School District and the manner in which to make application for such educational services and progran1s. 23. Through the actions and inactions of its directors, administrators, caseworkers, agents and/or translators, the Refugee Center negligently failed to notify the Third Party Plaintiffs of the existence of educationally eligible refugees, including the main action Plaintiffs, residing within the Utica City School District attendance area who wished to attend school in the Utica City School District. 24. Through the actions and inactions of its directors, administrators, caseworkers, agents and/or translators as set forth above, the Refugee Center failed to refer to the Third Party Plaintiffs those educationally eligible refugees, including the main action Plaintiffs, who wished to enroll in the Utica City School District for attendance purposes. 25 . Through the actions and inactions of its directors, administrators, caseworkers, agents and/or translators as set forth above, the Refugee Center negligently advised the main action Plaintiffs that they were not eligible to enroll and attend school in
-6 -

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 7 of 12
the Utica City School District based upon their respective ages in violation of the Third Party Plaintiffs' policies, Federal Law and State Law.
26. Through the actions and inactions of its directors, administrators, caseworkers, agents and/or translators as set forth above, the Refugee Center negligently failed to properly advise and instruct the main action Plaintiffs as to how to make application for enrollment in the Utica City School District.
27. Solely as a result of the Refugee Center's negligence, the Third Party Plaintiffs were prevented from providing educational services to the main action Plaintiffs to the detriment of the Third Party Plaintiffs and the main action Plaintiffs.
28. Solely as a result of the Refugee Center' s negligence, the mam action Plaintiffs instituted the main action against the Third Party Plaintiffs thereby exposing the Third Party Plaintiffs to a potential damage award assessed on behalf of each main action Plaintiffagainst said Third Party Plaintiffs.
29. By reason of the foregoing, any damages to the main action Plaintiffs were caused solely and wholly by the negligence of the Refugee Center and without any negligence on the part of the Third Party Plaintiffs herein contributing thereto.
30. By reason of the foregoing, the Third Party Plaintiffs have been damaged in a sum to be detennined upon a trial of these proceedings.
AS AND FOR A SECOND CAUSE OF ACTION 31 . The Third Party Plaintiffs restate, reallege and incorporate by reference the allegations in the foregoing Paragraphs of this Complaint as if fully set forth herein.
- 7-

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 8 of 12
32. The Refugee Center receives funding, in part, from New York State and Federal Funding Services, for the purpose of providing assistance to refugees immigrating to the Utica area in the areas of relocation, community services and educational services.
33. To the extent that the New York State and Federal Funds allocated to the Refugee Center are received as grants from said funding sources, the Refugee Center enters into a de facto contract with said funding sources to provide the services outlined in the application and awarded grants.
34. Upon information and belief, the sources and grounds being information available to the general public from the Refugee Center's website and promotional literature as well as from New York State and Federal Funding Sources, the Refugee Center has received public grant funds specifically, in part, to assist eligible refugees who have relocated to the Utica area with respect to enrollment in appropriate educational programs available to said refugees including, but not limited to, the Utica City School District, Oneida-Herkimer-Madison BOCES and programs offered by the Refugee Center itself, thus becoming a fiduciary to the Third Party Plaintiffs and main action Plaintiffs for the proper use of said grant funds.
35. The Third Party Plaintiffs and the main action Plaintiffs are third party beneficiaries of the Refugee Center' s aforementioned grant contracts with its funding sources.
36. By failing to properly refer the main action Plaintiffs to the Third Party Plaintiffs for enrollment in the Utica City School District, the Refugee Center breached its
-8-

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 9 of 12
aforementioned contractual obligations to the Third Party Plaintiffs and the main action Plaintiffs.
37. By failing to notify the Third Party Plaintiffs of the existence of the main action Plaintiffs in the Utica City School District attendance area, the Refugee Center breached its aforementioned contractual obligations to the Third Party Plaintiffs and the main action Plaintiffs.
38. By incorrectly notifying the main action Plaintiffs that they were not eligible to enroll in the Utica City School District based upon their respective ages, the Refugee Center breached its aforementioned contractual obligations to the Third Party Plaintiffs and the main action Plaintiffs.
39. By reason of the foregoing, the Third Party Plaintiffs as third party beneficiaries have be~n damaged by the Refugee Center's breach of its contractual obligations under its respective grants.
40. By reason of the foregoing, the Third Party Plaintiffs demand judgment against the Refugee Center for Breach of Contract in an amount to be determined at a trial ofthis action.
AS AND FOR A THIRD CAUSE OF ACTION 41. The Third Party Plaintiffs restate, reallege and incorporate by reference the allegations in the foregoing Paragraphs ofthis Complaint as iffully set forth herein. 42. By reason of the Refugee Center's receipt of New York State and Federal grants for the purpose of providing assistance to eligible refugees immigrating to the Utica
-9 -

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 10 of 12
area in enrollment for and receipt of educational programs in the Utica City School District, the Refugee Center became a fiduciary of said funds for the benefit of the Third Party Plaintiffs and the main action Plaintiffs.
43. By reason of the Refugee Center's improper notification to the main action Plaintiffs that they were not eligible to enroll in the Utica City School District because of their respective ages, the Refugee Center breached its fiduciary duty to the Third Party Plaintiffs and the main action Plaintiffs.
44. By reason of the Refugee Center's failure to notify the Third Party Plaintiffs of the existence of the main action Plaintiffs residing in the Utica City School District and their desire to attend school in the Utica City School District, the Refugee Center breached its fiduciary duty to the Third Party Plaintiffs and the main action Plaintiffs.
45 . By reason of the Refugee Center's failure to refer and assist the main action Plaintiffs in enrollment in the Utica City School District, the Refugee Center breached its fiduciary duty to the Third Party Plaintiffs and the main action Plaintiffs.
46. As a result of the Refugee Center' s breach of its fiduciary duty to the Third Party Plaintiffs, said Third Party Plaintiffs demand judgment against the Refugee Center in an amount to be determined by a trial of this action.
RELIEF REQUESTED WHEREFORE, the Third Party Plaintiffs respectfully request the Court: 1. Grant Judgment in favor of the Third Party Plaintiffs on the First Cause of Action; and
- 10-

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 11 of 12
2. Grant Judgment in favor of the Third Pa1iy Plaintiffs on the Second Cause of Action; and
3. Grant Judgment in favor of the Third Party Plaintiffs on the Third Cause of Action; and
4. Award the Third Party Plaintiffs reasonable attorney' s fees and costs under 42 U.S.C. §1988 for defense of the main action as a result of the Third Party Defendant's actions; and
5. Grant any other relief the Court deems necessary and proper.

tcr , Dated: May

2015

Donald R. Gerace, Esq. Attorney for Third Party Plaintiffs Bar Roll #101758 Office and P.0. Address 2613 Genesee Street Utica, New York 13501 Tel. No. (315) 735-7509

- 11 -

Case 6:15-cv-00488-DNH-TWD Document 18 Filed 05/19/15 Page 12 of 12

VERIFICATION
STATEOFNEWYORK ) ) ss.:
COUNTY OF ONEIDA )
DONALD R. GERACE, ESQ., being duly sworn, deposes and says that deponent is the Attorney for the Third Party Plaintiffs in the within action; that deponent has read the annexed Third Party Complaint and knows the contents thereof and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon
information and belief, and as to thos~~~

Sworn to before me this jC(.)A_day of May, 2015
4;;., t, +l~
Notary Public- State ofNew York _ _ ___Co.- Comm. Exp. _ __
LESLIE K. HAMAN Notary Public - State Of New York
Registered In Herkimer Countyc.
My Comm. Exp. May 20, 02.0 L.:. f

Donald R. Gerace

- 12-

 
 Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 1 of 20

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------)(
PATRICK TUYIZERE, SUK MAY A RAI, BBT by her parent and natural guardian BIRKHA BOLON. ALI JANAR, CHO CHO WIN. ADO LAR, on behalf of themselves and all others similarly situated,
Plaintiffs,

JUN 0 3 2016
AT_ O'CLOCK lawrence K. Baerman, -Cle-rk---Uti-ca

v.

UTICA CITY SCHOOL DISTRICT BOARD OF EDUCATION, UTICA CITY SCHOOL DISTRICT, BRUCE J. KARAM, Superintendent of Utica City School District, in his official capacity.

Index No. 15-cv-488 (DNH)(TWD)

Defendantsffhird Party Plaintiffs,

v.

MOI-lA WK VALLEY RESOURCE CENTER FOR REFUGEES,

Third Party Defendant. ---------------------------------------------------------------)(

CONSENT DECREE

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 2 of 20
TABLE OF CONTENTS Page
INTRODUCTION .............................................................................................................. I I. COMPLIANCE WITH EDUCATION LAWS ...................................................... 2 II. NOTICE TO IMMIGRANTS ELIGIBLE FOR HIGH SCHOOL ......................... 2 Ill. ENROLLMENT PROCEDURES .......................................................................... 5 IV. FORMS ................................................................................................................... 7 V. TRAINING ............................................................................................................. 8 VI. COMPENSATORY SERVICES ............................................................................ 9 VII. TERM OF THIS CONSENT DECREE ................................................................. 9 VIII. REPORTING ........................................................................................................ 10 IX. IMPLEMENTATION ........................................................................................... 12 X. ENFORCEMENT ................................................................................................. I3 XI. MODIFICATION ................................................................................................. 13 XII. NOTIFICATIONS TO COUNSEL ...................................................................... 13 XIII. DISMISSAL AND RESERVATION OF JURISDICTION ................................. 14 XIV. ATTORNEYS' FEES AND COSTS .................................................................... 14 XV. NON-WAIVER PROVISIONS ............................................................................ 14 XVI. ENTIRE AGREEMENT ....................................................................................... 15 XVII. EXECUTION ........................................................................................................ 15

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 3 of 20
DEFINITIONS
Action means Tuyizere, et a/. v. Utica City School District Board of Education, et a/., Index No. 15-cv-488 (DNH)(TWD), filed on April 23, 2015.
Alternative Education Program means, refers to, and includes nontraditional learning environments where students are not provided with a high school education, including, but not limited to, a high school equivalency program (otherwise known as a GED program), a program that only provides English as a second language instruction, a newcomer program. the Madison-Oneida Board of Cooperative Education Services (';BOCES..) GED program, or the Alignment of Pathways and Programs for Learners of English (';APPLE'') program.
Amended Complaint means the complaint filed by Plaintiffs in the Action on April 27, 2015.
Board of Education means the Utica City School District Board of Education.
Consent Decree means the agreement between the Parties in the Action and the Third Party Action to resolve both matters that is entered and so ordered by this Court.
Defendants or Third Party Plaintiffs mean the Utica City School District Board of Education, Utica City School District, and Bruce J. Karam, Superintendent of Utica City School District, in his official capacity.
District means the Utica City School District.
Effective Date means the date the Court signs and enters the Consent Decree.
English Language Learner or ELL means an individual who is not a native English speaker and is unable to communicate fluently in English.
Opt-Out Form means the document, included as Exhibit E of this Consent Decree, which permits an individual to affirmatively state, in sum and substance, whether he or she would like to remain in an Alternative Education Program rather than transfer to high school.
Parties means the Plaintiffs, Defendants/Third Party Plaintiffs, and the Third Party Defendants in the Action and the Third Party Action.
Plaintiffs mean Patrick Tuyizere, Suk Maya Rai, BBT by her parent and natural guardian Birkha Bolon, Ali Janar, Cho Cho Win, and Ado Lar.
School-Age Eligible means a person who is over five and under twenty-one years of age.
II

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 4 of 20

Third Party Action means Utica City School District Board of Education, et al. v.

Mohawk Valley Resource Centerfor Refugees, Index No. 15-cv-488 (DNH)(TWD), filed

on May 19,2015.

·

Third Party Complaint means the complaint filed by Defendants/Third Party Plaintiffs in the Third Party Action on May 19,2015.

Third Party Defendant or Refugee Center means the Mohawk Valley Resource Center for Refugees.

Waiver Form means the document, included as Exhibit D of this Consent Decree, which permits an individual to affirmatively state, in sum and substance, whether he or she would like to enroll in an Alternative Education Program rather than high school.

111

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 5 of 20
INTRODUCTION
The Parties to this Consent Decree, by their attorneys, hereby stipulate and agree as follows:
WHEREAS, plaintiffs Patrick Tuyizere, Suk Maya Rai, BBT by her parent and natural guardian Birkha Bolon, Ali Janar, Cho Cho Win, and Ado Lar (''Plaintiffs'') filed the Amended Complaint beginning the Action;
WHEREAS, defendants Utica City School District Board of Education, Utica City School District, Bruce J. Karam, Superintendent of Utica City School District, in his official capacity, (''Defendants" or ''Third Party Plaintiffs") denied the Plaintiffs' allegations and filed a Third Party Complaint beginning the Third Party Action against the Third Party Defendant, the Mohawk Valley Resource Center for Refugees (''Refugee Center");
WHEREAS, the Refugee Center denied the Defendants/Third Party Plaintiffs' allegations;
WHEREAS, there has been no finding of liability by this Court or any other court; and
WHEREAS, the Parties desire to avoid costly and protracted litigation, have conferred on the matter, and have voluntarily agreed, as indicated by the signatures of counsel below, to resolve the Action and the Third Party Action without adjudication of facts or law and according to the terms set forth herein.

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 6 of 20
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, and the Parties do hereby stipulate and agree, as follows:
I. COMPLIANCE WITH EDUCATION LAWS
I. As required by New York Education Law § 3202( I), Defendants shall provide any person who is aged 16-20, resides in Utica. and has not received a high school diploma, with the opportunity to attend Thomas R. Proctor High School ("Proctor High School..).
2. As required by the Equal Educational Opportunities Act ("EEOA"), the Board of Education and the District shall take appropriate action to overcome language barriers that impede equal participation by ELLs aged 16-20 in its instructional programs. See 20 U.S.C. § 1703(f). The Board of Education and the District shall comply with all requirements of the EEOA. See 20 U.S.C. § 1703, et seq.
II. NOTICE TO IMMIGRANTS ELIGIBLE FOR HIGH SCHOOL
I. Within 15 days of the Effective Date of this Consent Decree, the Refugee Center shall provide to Defendants and Plaintiffs' counsel an up-to-date list of School-Age Eligible immigrants who, during the last 4 years, entered the doors of the Refugee Center seeking services. This list shall include each School-Age Eligible immigrant's name, age, native language, last known address, last known telephone number, and his or her parents' or guardians' names.
2. Within 90 days of the Effective Date of this Consent Decree, Defendants shall perform a one-time review of the list created by the Refugee Center pursuant to Section II. I. This one-time review shall conclude with the following mailing:
2

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 7 of 20
a. Defendants shall mail to each individual aged 16-20 indentified on the Refugee Center's list whose last known address is in Utica and who is not enrolled at Proctor High School or a graduate of Proctor High School two letters and Waiver Forms, one in the individual's native language and one in English, and a prepaid postage envelope with a return address to the District's administrative office. The English language version of this letter is attached as Exhibit C, and Defendants shall use this Jetter in their mailings.
b. In the letters, Defendants shall inform each individual of his or her right to attend Proctor High School, provide contact information for the District and instructions on how to enroll in Proctor High School. Defendants shall request that any individual who declines to attend Proctor High School sign and return to the District the enclosed Waiver Form.
3. Within 60 days of the Etlective Date of this Consent Decree, Defendants shall attempt to place posters with text identical to the text in Exhibit H to this Consent Decree at the locations specified in Section II. 6 ofthis Consent Decree. a. Each poster shall provide notice in English and the 5 most commonly spoken languages at Proctor High School. b. If a representative from any location specified in Section II. 6 of this Consent Decree refuses to allow the display of the posters, the Defendants shall inform Plaintiffs' counsel within 7 days of said refusal, and Defendants shall be deemed in compliance with Section II. 3 of this Consent Decree with respect to that location.
3

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 8 of 20
4. Beginning 60 days after the Effective Date of this Consent Decree, the Defendants shall distribute the flyers attached as Exhibit G to this Consent Decree to the locations speci tied in Section II. 6 of this Consent Decree. Defendants shall distribute these flyers by placing 300 flyers at the first four locations identi tied in Section II. 6 and I00 flyers at each of the remaining locations in a conspicuous place where individuals entering or leaving the locations can easily access the flyers. a. Each flyer shall provide notice in English and in the 5 most commonly spoken languages at Proctor High School. b. If a representative of any location specified in Section II. 6 of this Consent Decree refuses to allow the distribution of the flyers, the Defendants shall inform Plaintiffs' counsel within 7 days of said refusal, and Defendants shall be deemed in compliance with Section II. 4 of this Consent Decree with respect to that location.
5. Within 7 days after placing and distributing the posters and flyers at the required locations, Defendants shall notify Plaintiffs' counsel of that fact in writing.
6. As required by Section II. 3 and II. 4, the Defendants shall provide notice at the following locations:
a. Mohawk Valley Resource Center for Refugees, 309 Genesee Street, Utica, N.Y.
b. Utica Public Library, 303 Genesee Street, Utica, N.Y. c. Oneida County Department of Social Services, 800 Park Avenue, Utica, N.Y. d. Midtown Utica Community Center, 47 Scott Street and 40 Faxton Street,
Utica, N.Y.
4

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 9 of 20
e. Utica ACCESS Site, 508 2nd Street, Utica, N.Y. f. OHM BOCES, 4747 Middle Settlement Road, New Hartford, N.Y. g. Mohawk Valley Somali Bantu Community Association, 615 Elizabeth Street,
Utica, N.Y. h. Muslim Community Association of Mohawk Vallev, 1631 Kemble Street,
Utica, N.Y. 1. Bosnian Islamic Association of Utica, 306 Court Street, Utica, N.Y. J. Community Seventh Day Adventist Church, 1116 Park Avenue, Utica, N.Y. k. Utica Municipal Housing Authority, Perretta Twin Towers, 509 Second
Street,# I, Utica, N.Y. I. Golden Burma Asian Market, 314 South Street, Utica, N.Y. m. Golden Burma Halal Meat Market, 1173 McQuade Avenue, Utica, N.Y. n. Mya Family Asian Food Market, 1651 Oneida Street, Utica, N.Y. o. Chanatry's Supermarket, 485 French Road, Utica, N.Y. p. Senshine Market, 600 Culver Avenue #I, Utica, N.Y. q. Muharem Market, 1129 Bleeker Street, Utica, N.Y.
III. ENROLLMENT PROCEDURES
I. A District employee, along with an appropriate language interpreter, shall meet in person with any ELL aged 16 to 20 who requests enrollment in high school.
a. The District shall advise the ELL of his or her right to attend high school until age 21 or until he or she obtains a high school diploma, that the right continues even if the ELL at first decides to enroll in an Alternative 5

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 10 of 20
Education Program, and inform the ELL of the differences between high school and any existing Alternative Education Programs. The District shall use the checklist, attached as Exhibit F, to advise ELLs of their rights and the differences between high school and any existing Alternative Education Programs. b. During this meeting, the District shall offer enrollment in the District's high school to the School-Age Eligible ELL. c. The District shall require that every ELL who elects to enroll in an Alternative Education Program sign the Waiver Form attached as Exhibit D to this Consent Decree. The Waiver Form shall be in the ELL's native language or an interpreter shall verify, in writing, that he or she interpreted the document for the ELL in the ELL's native language.
2. Within 5 business days of the arrival of any School-Age Eligible ELL at the Refugee Center, the Refugee Center shall notify the District of the ELL's arrival. The District shall meet in person with any ELL who wishes to enroll in high school as soon as reasonably possible and complete the actions required in this Consent Decree. a. In the event that the Refugee Center ceases to exist, or if the Refugee Center stops providing resettlement services to refugees in Utica, Defendants shall endeavor to coordinate its enrollment procedures with any entity that replaces the Refugee Center or takes control of the refugee resettlement process in Utica.
6

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 11 of 20
3. The District shall take all necessary steps to coordinate with providers of Alternative Education Programs for School-Age Eligible ELLs living in Utica to ensure that ELLs who seck admission in any Alternative Education Program first sign Waiver Forms.
4. At the conclusion of each school year during the term of the Consent Decree, the District shall meet in person with and offer each School-Age Eligible ELL who resides in Utica and attends an Alternative Education Program the choice to transfer to Proctor High School. ELLs who wish to remain in an Alternative Education Program must sign the Opt-Out Form, attached as Exhibit E to this Consent Decree, to opt-out of transferring to Proctor High School.
5. The District shall maintain enrollment policies that comply with all applicable laws, rules. regulations, and policies pursuant to this Consent Decree. The District shall promptly update its enrollment policies in response to relevant amendments to the New York Education Law or the Commissioner's Regulations, or in response to relevant, new guidance from the U.S. Departments of Education and/or Justice. If the Defendants amend or replace their enrollment policies at anytime during the term of this Consent Decree, Defendants shall provide Plaintiffs' counsel with a copy of the revised enrollment policies no later than 30 days after making the revisions.
IV. FORMS
I. Defendants shall not make any changes to the Waiver Forms or Opt-Out Forms attached to this Consent Decree.
2. The Defendants shall promptly update the checklist attached to this Consent Decree in response to the creation of new Alternative Education Programs or the termination of
7

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 12 of 20
existing ones. If Defendants update the checklist, the Defendants shall provide Plaintiffs' counsel with a copy of the revised checklist no later than 30 days after making the revisions.
V. TRAINING
I. The District shall provide annual training to every District employee involved in the school enrollment process on how to enroll ELLs in accordance with this Consent Decree, and all applicable Jaws, rules, regulations, and policies pursuant to this Consent Decree.
2. If the District hires someone during the school year to participate in the enrollment process, the District shall promptly train that individual in accordance with this Consent Decree, and all applicable laws, rules, regulations, and policies pursuant to this Consent Decree.
3. Within 90 days of the Effective Date of this Consent Decree, the Defendants shall provide Plaintiffs' counsel with the training materials they plan to use to conduct the trainings required by Sections V. I and V. 2.
4. The District shall maintain training materials that comply with this Consent Decree, and all applicable Jaws, rules, regulations, and policies pursuant to this Consent Decree. The District shall promptly update the training materials in response to relevant amendments to the New York Education Law or Regulations of the Commissioner of the New York State Education Department, or in response to relevant, new guidance from the U.S. Departments of Education and/or Justice. If the District updates, amends, or replaces its training materials at anytime during the term of this Consent Decree, the District shall
8

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 13 of 20
provide Plaintiffs' counsel with a copy of the revised training materials no later than 30 days after making the revisions. 5. The District shall record, in writing, the name and title of every District employee who participated in the training, what training materials were provided, the duration of the training session, and who gave the training. 6. Beginning 6 months after the Effective Date of this Consent Decree, and continuing every 6 months thereafter for the duration of the Consent Decree, the District shall notify Plaintiffs' counsel of the titles of every District employee who participated in the training required by this Section, what training materials were provided, the duration of the training session, and who gave the training.
VI. COMPENSATORY SERVICES
I. Defendants shall allow Plaintiffs to attend Proctor High School past their 21st birthday as compensatory education as follows: a. Patrick Tuyizere - 7 months b. Suk Maya Rai - 13 months c. BBH - 2 months d. Ali Janar- 24 months e. Ado Lar- 8 months
VII. TERM OF THIS CONSENT DECREE
I. This Consent Decree is effective immediately upon the signature of the Court.
9

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 14 of 20
2. Without further action by the Court, this Consent Decree shall expire 4 years following the Effective Date.
VIII. REPORTING
I. Beginning 6 months after the Effective Date of this Consent Decree, and continuing every 6 months thereafter for the duration of the Consent Decree, Defendants shall provide Plaintiffs' counsel with a report including the following for the preceding six month period: a. the number of ELLs aged 16-20 that were referred to the Defendants by the Refugee Center, including a breakdown of the number of ELLs according to their ages; b. the number of ELLs aged 16-20 who were newly enrolled in Proctor High School, including a breakdown of the number of ELLs according to their ages; c. the number of ELLs aged 16-20 who were newly enrolled in Alternative Education Programs that the Defendants are aware of, including the name and type of program (e.g., GED program) and including a breakdown of the number of ELLs in each program according to their ages; d. the Waiver Forms for every ELL aged 16-20 residing in Utica who is enrolled in an Alternative Education Program or was sent a Waiver Form as part of the Defendants' one-time review and mailing; and e. the Opt-Out Forms for every ELL aged 16-20 residing in Utica and enrolled in an Alternative Education Program who elects to remain in an
10

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 15 of 20
Alternative Education Program after being offered the opportunity to transfer to Proctor High School. 2. Beginning 6 months after the Effective Date of this Consent Decree, and continuing every 6 months thereafter for the duration of the Consent Decree, the Refugee Center shall provide Plaintiffs' counsel with a report including the following for the preceding six month period: a. the number of ELLs aged 16-20 that the Refugee Center referred to the Defendants, including a breakdown of the number of ELLs according to their ages; b. the number of ELLs aged 16-20 newly enrolled in Proctor High School that the Refugee Center is aware of, including a breakdown of the number of ELLs according to their ages; and c. the number of ELLs aged 16-20 newly enrolled in Alternative Education Programs that the Refugee Center is aware of, including the name and type of program (e.g., GED program) and including a breakdown of the number of ELLs in each program according to their ages. 3. The Parties acknowledge that federal and state law, including the Family Educational Rights and Privacy Act, 20. U.S.C. § 1232g, governs the disclosure of student education records. The District's production of signed Waiver Forms and Opt-Out Forms shall be made pursuant to the protective order attached as Exhibit B to this Consent Decree.
II

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 16 of 20
IX. IMPLEMENTATION
I. To the extent necessary and not otherwise explicitly required by this Consent Decree, the Board of Education shall take all actions under its authority to ensure that the terms of the Consent Decree are implemented, and that the employees of the District comply with the Consent Decree.
2. The Board of Education shall designate the Administrator of Special Education and ESL Services to ensure compliance with the Consent Decree.
3. To the extent necessary and not otherwise explicitly required by this Consent Decree, the Board of Directors of the Refugee Center shall take all actions under its authority to ensure that the terms of the Consent Decree are implemented, and that employees of the Refugee Center comply with the Consent Decree.
4. The Board of Directors of the Refugee Center shall designate a Refugee Center employee to serve as a compliance coordinator. The Refugee Center's compliance coordinator shall be responsible for coordinating the Refugee Center's compliance with the Consent Decree, shall report directly to the Board of Directors of the Refugee Center about the implementation of the Consent Decree, and shall serve as a point of contact for Plaintiffs' counsel. The Refugee Center shall notify Plaintiffs' counsel of the identity of their compliance coordinator within 30 days of the Effective Date. If the Refugee Center changes its compliance coordinator, the Refugee Center shall promptly notify Plaintiffs' counsel of the identity of the new compliance coordinator.
12

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 17 of 20
X. ENFORCEMENT
I. The Parties consent to the jurisdiction of this Court over any proceedings seeking to enforce the terms of this Consent Decree.
2. In the event the Court finds that a party has not complied with a material provision of this Consent Decree, the Court shall have the power to order specific performance of the provision and/or any other relief the Court deems necessary.
XI. MODIFICATION
I. This Consent Decree may not be modified without the written consent of the Parties and the approval of the Court.
XII. NOTIFICATIONS TO COUNSEL
I. Notices and other written communications pursuant to this Consent Decree shall be in writing. Notice to the Defendants shall be addressed to the Superintendent of the Utica City School District at l 06 Memorial Parkway, Utica, N.Y. 1350 I. Notice to Plaintiffs or the Refugee Center shall be addressed to the attorneys of the respective parties specified in the signature pages ofthis Consent Decree.
2. The District shall notify all counsel if there is any substitution of the Superintendent of the Utica City School District. In the event that any substitution is to be made in counsel to receive communications under this Consent Decree, all counsel and the Superintendent of the Utica City School District shall be informed, and the name and contact information for substitute counsel shall be provided.
13

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 18 of 20
XIII. DISMISSAL AND RESERVATION OF JURISDICTION I. Upon approval of the Consent Decree by the Court, the Parties shall execute, deliver, and
file a stipulation of dismissal with prejudice of the Action and the Third Party Action, substantially in the form attached hereto as Exhibit A. The Court shall retain jurisdiction of the Action and the Third Party Action to enforce this Consent Decree, the protective order attached as Exhibit B, and to decide any motion by Plaintiffs' counsel seeking attorneys' fees and costs. XIV. ATTORNEYS' FEES AND COSTS I. Plaintiffs' counsel may apply for an award of reasonable attorneys' fees and costs pursuant to 42 U.S.C. § 1988 following the Court's approval of this Consent Decree, or according to the motion schedule set by the Court, with such motion supported by time and billing rate information. Defendants may oppose the amount of attorneys' fees and costs sought. XV. NON-WAIVER PROVISIONS I. This Consent Decree does not limit or affect the rights and remedies of any persons who are not a party to this Consent Decree. 2. The failure by any party to enforce any provision of the Consent Decree with respect to any deadline or other provision herein shall not be construed as a waiver of their right to enforce deadlines or provisions of this Consent Decree.
14

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 19 of 20
XVI. ENTIRE AGREEMENT I. This Consent Decree embodies the entire agreement of the Parties. No prior or
contemporaneous agreements, oral or written, entered into prior to the execution of this Consent Decree regarding the subject matter of this Action or Third Party Action shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein. Captions are included herein solely for convenience of reference, and shall not be used to limit the terms of the Consent Decree. XVII. EXECUTION I. This Consent Decree may be executed in multiple counterparts, and faxed and/or emailed signatures will be valid and enforceable, each ofwhich shall be deemed an original, and all of which shall constitute one and the same document.
15

Case 6:15-cv-00488-DNH-TWD Document 76 Filed 06/03/16 Page 20 of 20
,I I

Dnted:
p Desg nge, ~'b'-""'-·--1'1---l'.cJfllr-lo Alexis Kart l'on, Esq. A11htu• Eisenberg, Esq.
NRW YORK CIVIl~ LJBER'f!R
FOUNDATION 125 Broad Street, 19th Flool' New York, New York 10004 Tel: (212) 607-3300 pdesgranges@nyolu.org aknrteron@nyclu.ol'g ae(l!enberg@nyclu.org

__ .· ·.·.·. O~- ..··"' ... /'

···~ ~-·_..,.o:;;··d·-~

·---· .
........--..--~- .

.

.

.· '

.
'

·-·

..

Don~ld h. Oornce, F.sq. ·

... . .

DONALD R. OERACB LAW OPPICES 2613 Genesee Sll·eet Ullcn, New YOI'k I 3501 Tel: (315) 735-7509 dge1·ace@ynhoo.com

AttomeJ'.rfor Defendanls!Thtrd Party Plalntljja

/P. f7. •' j
.Jtllie 11• Apte ,: •·. :

7~::_A--.A--':­-

Kenneth M. eis, Esq.

OOLDBBRO SEOALLA LLP

; '
:•• 1

665 Main Stl'eet, Suite 400
Buffalo, New Yo1·1< 14203

Tel: (716) 566·5400

japter@goldbergsegalla.com

lmlwcis@goldbei'BSOgalla.com

Aflo1'17aysfor Plctlntljfs

Atrornoys for 1'hlrd Party Defendant
]1-J_
SO OliDERED this _:)_day of
~ v11e.. ).2ot6

 
 Case 6:15-cv-00488-DNH-TWD Document 86 Filed 08/04/16 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
PATRICK TUYIZERE, SUK MAYA RAI, BBT by her parent and natural guardian BIRKHA BOLON, ALI JANAR, CHO CHO WtN, ADO LAR, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
UTICA CITY SCHOOL DISTRTCT BOARD OF EDUCATION, UTTCA CITY SCHOOL DISTRICT, BRUCE J. KARAM, Superintendent of Utica City School District, in his ofñcial
capacity,
Defendants.

Index No. 15-cv-488 (DNHXTWD)
STTPULATION A¡rD IPROPOSEDI ORDER CONCERNINC ATTORNEYS' FEES AND COSTS

WHDREAS, this Court entered a consent decree and stipulation ol dismissal on June 3, 2016 resolving the underlying claims in Ttryízere, et al. v. Utica City School Dístríct Board of Education, et al,, and Utíca City School District Board of Education, et al, v, Mohawk Yalley Resource Centerþr Refugees;
IVHEREAS, pursuant to Section XIII of the Consent Decree, this Court retained jurisdiction to resolve the New York Civil Liberties Union and Legal Services of Central
New York's ("Plaintiffs' counsel'n) request for attomeys' fees and costs; and
WHER"EAS, Plaintiffs' counsel and Defendants (collectivel¡ the "Parties")
would like to settle this mafter rather than continue generating expenses in litigation.
NOWN THEREFORE' IT IS HEREBY ORDER"ED, ADJUDGED, AND
DECREED, and the Parties hereby stipulate, that the issue of attorneys' fees and costs in the above-captioned case will be fully and completely settled upon the following terms and conditions:
l. Within 30 days of date that this Stipulation and Order Concerning Attomeys' Fees
and Costs ("stipulation and Order") is so ordered by the Court, Defendants shall deliver to the New York Civil Liberties Union a check in the amount of FORTY NTNE THOUSAND EICHT HUNDRED AND EICHTY-FOUR DOLLARS AND THIRTY CENTS ($49,884.30) made payable to the New York Civil Liberties Union Foundation, and shall deliver to Legal Services of Central New York a check in the
I

Case 6:15-cv-00488-DNH-TWD Document 86 Filed 08/04/16 Page 2 of 3
AMOUNT Of THIRTY THOUSAND ONE HUNDRED ANÞ FIFTEEN DOLLARS AND SEVENTY CENTS ($30,115.70) made payable to Legal Services of Central
New York.
2. In exchangç for the Defendants' fi,rll payment of the fees and costs in paragraph l,
Plaintiffs' counsel release their clairns against the Defendants for attorneys' fees and costs for the time and resources spent litigating the above-captioned case up to and including the date of this Stipulation and Order.
3, The Court shall maintain jurisdiction to enforce this Stipulation and Order. ln the
event that the Defendants do not provide full payment of attorneys' fees and costs to Plaintiffs' counsel as required by this Stipulation and Order, Plaintiffs' counsel may move the Court for specific performance of paragraph I of this Stipulation and Order.
4. This Stipulation and Order represents the ñ¡ll and entire understanding and agreement
between the Parties regarding Plaintiffs' counsel's request for attorneys' fees and costs for the time and resources spent litigating the above-captioned case up to and including the date of this Stipulation and Order. By the signatures appearing below, Plaintiffs' counsel and Defendants represent that they are authorized to enter into this Stipulation and Order, have consented to these terms voluntarily, and intend
this Stipulation and Order to be binding and enforceable against the Parties.
z

Case 6:15-cv-00488-DNH-TWD Document 86 Filed 08/04/16 Page 3 of 3
n/

Philip Arthur Ei
Nrw Yom Crv¡r- Lrsenrrrs
FouNpnrtoN 125 Broad Sheet, l9th Floor New York, New York 10004 Tel: (212) 607-3300 pdeserün ges@nyclu.ore
aeisenbers(An]rclu.ore

Donald R. Gerace, Esq. DoNrr.o R. GsRAce L¡,w Ornces 2613 Genesee Street Utica, New York 13501 Tel: (315) 735-7509 dgerace@;yahoo.com
Attorueyfor Defendants

Young, Esq. Samuel C. Young, Esq.
Lsc¡L SrRv¡cEs oF CENTRALNEwYonT
221 S. Warren Sheet, Suite 300
Syracuse, New York 13202 Tel: (315) 703-6500
syoung@lscny.org samyoung@lscny"orq
A t t o rneys þ r P la intitfs

A*,..^s*
oated:-#r$, 2016

SO ORDERED this -_-__ day of
,2016

UNITED STATES DISTRICT JUDGE

3

 
 Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 1 of 13
CLOSED
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 6.1.1]
(Utica) CIVIL DOCKET FOR CASE #: 6:15−cv−00488−DNH−TWD

Tuyizere et al v. Utica City School District Board of Education et Date Filed: 04/23/2015

al

Date Terminated: 06/03/2016

Assigned to: Judge David N. Hurd

Jury Demand: None

Referred to: Magistrate Judge Therese Wiley Dancks

Nature of Suit: 448 Civil Rights:

related Case: 6:15−cv−01364−DNH−TWD

Education

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff

Patrick Tuyizere

represented by Alexis B. Karteron New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 212−607−3300 Fax: 212−607−3329 Email: akarteron@nyclu.org TERMINATED: 06/06/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur N. Eisenberg New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 212−607−3005 Fax: 212−607−3329 Email: arteisenberg@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip L. Desgranges New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 212−607−3360 Fax: 212−607−3318 Email: pdesgranges@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel C. Young Legal Services of Central New York − Syracuse 472 South Salina Street Suite 300 Syracuse, NY 13202 315−703−6591 Fax: 315−475−2706 Email: samyoung@lscny.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Young Legal Services of Central New York − Syracuse

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 2 of 13

472 South Salina Street Suite 300 Syracuse, NY 13202 315−475−3127 Fax: 315−475−2706 Email: syoung@lscny.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Suk Maya Rai

represented by Alexis B. Karteron (See above for address) TERMINATED: 06/06/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur N. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip L. Desgranges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
B. B−T by her parent and natural guardian Birkha Bolon

represented by Alexis B. Karteron (See above for address) TERMINATED: 06/06/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur N. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip L. Desgranges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 3 of 13

Plaintiff Ali Janar

represented by Alexis B. Karteron (See above for address) TERMINATED: 06/06/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur N. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip L. Desgranges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Cho Cho Win

represented by Alexis B. Karteron (See above for address) TERMINATED: 06/06/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur N. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip L. Desgranges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ado Lar on behalf of themselves and all others similarly situated

represented by Alexis B. Karteron (See above for address) TERMINATED: 06/06/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur N. Eisenberg (See above for address)

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 4 of 13
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip L. Desgranges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel C. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Mediator (Mandatory Program)
Richard Pertz TERMINATED: 11/23/2015

represented by Richard Pertz Office of Richard Pertz 12280 Rt. 365 Remsen, NY 13438 315−723−6949 Email: rpertz@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Utica City School District Board of Education
Defendant Utica City School District
Defendant Bruce J. Karam Superintendent of Utica City School District, in his official capacity ThirdParty Plaintiff Bruce J. Karam Superintendent of Utica City School District, in his official capacity ThirdParty Plaintiff Utica City School District

represented by Donald R. Gerace Office of Donald R. Gerace 2615 Genesee Street Utica, NY 13501 315−735−7509 Fax: 315−735−1485 Email: drgerace@yahoo.com ATTORNEY TO BE NOTICED
represented by Donald R. Gerace (See above for address) ATTORNEY TO BE NOTICED
represented by Donald R. Gerace (See above for address) ATTORNEY TO BE NOTICED
represented by Donald R. Gerace (See above for address) ATTORNEY TO BE NOTICED
represented by Donald R. Gerace (See above for address)

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 5 of 13

ATTORNEY TO BE NOTICED

ThirdParty Plaintiff
Utica City School District Board of Education

represented by Donald R. Gerace (See above for address) ATTORNEY TO BE NOTICED

V.
ThirdParty Defendant
Mohawk Valley Resource Center for Refugees

represented by Julie Pasquariello Apter Goldberg, Segalla Law Firm − Buffalo Office 665 Main Street Suite 400 Buffalo, NY 14202 716−566−5400 Fax: 716−566−5401 Email: japter@goldbergsegalla.com ATTORNEY TO BE NOTICED
Kenneth M. Alweis Goldberg, Segalla Law Firm − Syracuse Office 5786 Widewaters Parkway Syracuse, NY 13214 315−413−5410 Fax: 315−413−5401 Email: kalweis@goldbergsegalla.com ATTORNEY TO BE NOTICED

Date Filed 04/23/2015
04/24/2015 04/24/2015
04/24/2015 04/27/2015
04/27/2015

# Docket Text
3 G.O. 25 FILING ORDER ISSUED: Initial Conference set for 7/22/2015 09:30 AM by telephone before Magistrate Judge Therese Wiley Dancks. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 7/15/2015. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (hmr) (Entered: 04/23/2015)
CLERK'S CORRECTION OF DOCKET ENTRY re 3 G.O. 25 Filing Order: Clerk changed the entry to state that the initial conference set for 7/22/2015 at 9:30 a.m. is by telephone not in Syracuse. (hmr) (Entered: 04/24/2015)
5 TEXT ORDER : Court has reviewed docket. Clerk is directed to restrict the Complaint at Dkt. No. 1 and the Summonses issued at Dkt. No. 2 due to personal identifying information regarding a certain plaintiff. Plaintiff's attorney is directed to file an amended complaint, with proposed amended summonses accordingly, by 5/1/2015. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 4/24/2015. (sg ) (Entered: 04/24/2015)
***Answer due date updated for Bruce J. Karam answer due 5/14/2015; Utica City School District answer due 5/14/2015; Utica City School District Board of Education answer due 5/14/2015. (hmr) (Entered: 04/24/2015)
6 AMENDED COMPLAINT against All Defendants filed by Cho Cho Win, Suk Maya Rai, Patrick Tuyizere, B. B−T, Ali Janar, Ado Lar. (Attachments: # 1 Proposed Amended Summons for Utica City School District Board of Education, # 2 Proposed Amended Summons for Utica City School District, # 3 Proposed Amended Summons for Bruce J. Karam)(Desgranges, Philip) (Entered: 04/27/2015)
7 Summons Issued as to Bruce J. Karam, Utica City School District and Utica City School District Board of Education. (Attachments: # 1 Summons Issued as to Utica City School District Board of Education, # 2 Summons Issued as to Utica City School

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 6 of 13

04/28/2015 04/30/2015 05/06/2015 05/06/2015 05/07/2015
05/13/2015 05/18/2015 05/18/2015 05/18/2015 05/19/2015 05/19/2015 05/19/2015 05/20/2015 05/20/2015

District)(dpk) (Entered: 04/28/2015)
8 AFFIDAVIT of Service for Amended Summons and Amended Complaint served on Bruce Karam, Utica City School District and Utica City School District Board of Education on April 28, 2015, filed by Patrick Tuyizere. (Young, Samuel) (Entered: 04/28/2015)
***Answer due date updated for Bruce J. Karam answer due 5/20/2015; Utica City School District answer due 5/20/2015; Utica City School District Board of Education answer due 5/20/2015. (dpk) (Entered: 04/30/2015)
9 Letter Motion from Philip Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting Initial Conference for Preliminary Injunction submitted to Judge Therese Wiley Dancks . (Desgranges, Philip) (Entered: 05/06/2015)
10 Letter Motion from Philip Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting Initial Conference for Preliminary Injunction submitted to Judge Thomas J. McAvoy . (Desgranges, Philip) (Entered: 05/06/2015)
11 TEXT ORDER: Court has reviewed letter motion (Dkt. No. 9 ) regarding request to reschedule the Rule 16 Conference to an earlier date than the current date of 7/22/2015 (See Dkt. No. 3 ). Letter motion DENIED without prejudice at this time. Plaintiffs may renew their request once Defendants have been served and have filed a response to the Complaint. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 5/7/2015. (sg ) (Entered: 05/07/2015)
12 Verified ANSWER to 6 Amended Complaint, by Bruce J. Karam, Utica City School District, Utica City School District Board of Education. (Attachments: # 1 Affirmation)(Gerace, Donald) (Entered: 05/13/2015)
13 Amended Verified ANSWER to 1 Complaint, and Certificate of Service by Bruce J. Karam, Utica City School District, Utica City School District Board of Education. (Attachments: # 1 Affirmation)(Gerace, Donald) (Entered: 05/18/2015)
14 Letter Motion from Donald R. Gerace, Esq., attorney for Named Defendants, for Bruce J. Karam, Utica City School District, Utica City School District Board of Education requesting filing Amended Verified Answer submitted to Judge McEvoy . (Gerace, Donald) (Entered: 05/18/2015)
15 Letter Motion from Philip Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting Initial Conference for Preliminary Injunction submitted to Judge Therese Wiley Dancks . (Desgranges, Philip) (Entered: 05/18/2015)
16 TEXT ONLY ORDER granting Defts' 14 Letter Request to restrict access to defts' 12 answer based upon NDNY Local Rule 8.1; SO ORDERED − Authorized on 5/19/2015 by Sr. District Judge Thomas J. McAvoy (cml) (Entered: 05/19/2015)
17 Letter Motion from Donald R. Gerace, Esq. for Bruce J. Karam, Utica City School District, Utica City School District Board of Education requesting Responding to Plaintiff's Motion submitted to Judge Dancks . (Gerace, Donald) (Entered: 05/19/2015)
18 THIRD PARTY COMPLAINT against Mohawk Valley Resource Center for Refugees filed by Bruce J. Karam, Utica City School District, Utica City School District Board of Education. (Attachments: # 1 Proposed Summons, # 2 Civil Cover Sheet)(Gerace, Donald) (Entered: 05/19/2015)
19 Third−Party Summons Issued as to Mohawk Valley Resource Center for Refugees. (lah) (Entered: 05/20/2015)
20 Letter Motion from Philip Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win submitted to Judge Therese Wiley Dancks in Response to Defendants' 5−19−2015 Letter (at Dkt. No. 17). (Desgranges, Philip) (Entered: 05/20/2015)

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 7 of 13

05/21/2015
05/21/2015 05/21/2015 06/03/2015 06/03/2015 06/08/2015 06/09/2015 06/25/2015 07/15/2015 07/22/2015
07/23/2015

21 TEXT ORDER : Court has reviewed Plaintiffs' letter motion (Dkt. No. 15 ) regarding request to reschedule Rule 16 Conference to an earlier date than the current date of 7/22/2015 (see Dkt. No. 3), and further letter (Dkt. No. 20 ) of Plaintiffs' in support of their request. Court has also reviewed Defendants' letter motion (Dkt. No. 17 ) requesting Rule 16 Conference to remain as scheduled, and that no expedited discovery schedule be issued. Court also notes a Third Party Complaint (Dkt. No. 18) has been filed and a summons (Dkt. No. 19) has been issued in accordance with that Third Party Complaint. Letter motions are determined as follows: Dkt. Nos. 15 and 20 are denied without prejudice at this time. Plaintiffs may renew their request once the Third Party Defendant has been served and filed a response to the Third Party Complaint. Dkt. No. 17 is granted insofar as it seeks to have the Rule 16 conference remain as scheduled. Issues regarding an expedited discovery schedule will be addressed at the Rule 16 Conference, which remains scheduled for 7/22/2015 at the present time per Dkt. No. 3. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 5/21/2015. (sg ) (Entered: 05/21/2015)
22 AFFIDAVIT of Service for Summons and Third Party Complaint served on Mohawk Valley Resource Center for Refugees on May 21, 2015, filed by Bruce J. Karam, Utica City School District, Utica City School District Board of Education. (Gerace, Donald) (Entered: 05/21/2015)
***Answer due date updated for Mohawk Valley Resource Center for Refugees answer due 6/11/2015. (lah) (Entered: 05/21/2015)
23 NOTICE of Appearance by Julie Pasquariello Apter on behalf of Mohawk Valley Resource Center for Refugees (Apter, Julie) (Entered: 06/03/2015)
24 NOTICE of Appearance by Kenneth M. Alweis on behalf of Mohawk Valley Resource Center for Refugees (Alweis, Kenneth) (Entered: 06/03/2015)
25 STIPULATION re 18 Third Party Complaint, Extension of Time to Answer by Mohawk Valley Resource Center for Refugees. (Apter, Julie) (Entered: 06/08/2015)
26 TEXT ORDER re: 25 Stipulation for extension : Answer due date updated for Third Party Defendant Mohawk Valley Resource Center for Refugees : answer to third party complaint due 6/26/2015. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 6/9/2015. (sg ) (Entered: 06/09/2015)
27 ANSWER to 18 Third Party Complaint, by Mohawk Valley Resource Center for Refugees. (Attachments: # 1 Certificate of Service)(Apter, Julie) (Entered: 06/25/2015)
28 CIVIL CASE MANAGEMENT PLAN by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win. (Desgranges, Philip) (Entered: 07/15/2015)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Initial Pretrial Conference held on 7/22/2015. Mandatory disclosures have been exchanged. First set of Rule 33 and 34 requests will be served by 8/21/2015. Plaintiffs' counsel requests to exceed the deposition limit allowed. Defendants' counsel believes this issue is premature. Judge defers this issue at this time. The schedule for class certification is deferred until the next telephone conference. Joinder deadline is set for 9/14/2015. Mandatory mediation deadline is set for 10/20/2015. Amendment deadline is set for 11/9/2015. The deadline for completion of fact discovery is set for 1/29/2016. Plaintiffs' expert report is due by 2/29/2016. Defendants & Third−Party Plaintiffs' expert report is due by 3/28/2016. Third−Party Defendants' expert report is due by 4/25/2016. Any rebuttal expert report is due by 4/29/2016. Completion of all discovery, including expert depositions, is due by 5/31/2016. Any discovery motions must be filed by 6/7/2016. Dispositive motions must be filed by 7/29/2016. This will be a non−jury trial that will last approximately 7 days in Albany. A trial ready deadline and trial date before Senior District Judge McAvoy will be set shortly. A follow−up status telephone conference will be set for some time in mid to late October. APP: Alexis Karteron, Esq., Philip Desgranges, Esq., Samuel Young, Esq., Susan Young, Esq., Adam Crowley, Esq., Donald Gerace, Esq., and Juli Pasquariello−Apter, Esq.. (FTR Recorded 9:30 AM − 10:20 AM). (sal, ) (Entered: 07/23/2015)
29 ORDER REFERRING CASE to Mandatory Mediation. Deadline for Mediator Selection is 8/20/2015. Deadline for completion of Mandatory Mediation is 10/20/2015. Signed by Magistrate Judge Therese Wiley Dancks on 7/23/15. (sal, )

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 8 of 13

07/23/2015 07/24/2015
08/07/2015
08/07/2015 08/10/2015 09/17/2015 09/21/2015 10/21/2015 10/22/2015 10/23/2015

(Entered: 07/23/2015)
Set/Reset Hearings: A Telephone Conference is set for 10/23/2015 at 11:00 AM before Magistrate Judge Therese Wiley Dancks. The conference will be conducted by telephone. Attorney Gerace is directed to initiate the call by using AT&T or other teleconferencing service and call Judge Dancks' chambers at 315−234−8618, a dedicated conference line which is not to be used for other purposes. (sal) (Entered: 07/23/2015)
30 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of non−jury trial: 7 days. Preferred Trial Location: Albany. Joinder deadline is set for 9/14/2015. Mandatory mediation deadline is set for 10/20/2015. Amendment deadline is set for 11/9/2015. The deadline for completion of fact discovery is set for 1/29/2016. Plaintiffs' expert report is due by 2/29/2016. Defendants & Third−Party Plaintiffs' expert report is due by 3/28/2016. Third−Party Defendants' expert report is due by 4/25/2016. Any rebuttal expert report is due by 4/29/2016. Completion of all discovery, including expert depositions, is due by 5/31/2016. Any discovery motions must be filed by 6/7/2016. Dispositive motions must be filed by 7/29/2016. Trial Ready Deadline is 10/2/2016. Bench Trial set for 10/12/2016 at 10:00 AM in Albany before Senior Judge Thomas J. McAvoy. Signed by Magistrate Judge Therese Wiley Dancks on 7/24/15. (sal, ) (Entered: 07/24/2015)
31 STIPULATION SELECTING MEDIATOR: IT IS HEREBY STIPULATED AND AGREED that Richard Pertz has been selected, contacted and has agreed to serve as Mediator for this action. IT IS FURTHER STIPULATED AND AGREED, that counsel will participate in the mediation session in good faith and confer with the Mediator regarding the scheduling of additional conferences, bearing in mind the deadline for completion of Mediation set forth in the Court's Order Referring the Case to Mediation. Stipulation signed by: Philip Desgranges, Donald R. Gerace, Julie P. Apter and. Dated: August 7, 2015(Apter, Julie) (Entered: 08/07/2015)
32 MOTION for Extension of Time to Complete Discovery filed by Mohawk Valley Resource Center for Refugees. Motions referred to Therese Wiley Dancks. (Apter, Julie) Modified on 8/10/2015 (sg ). (Entered: 08/07/2015)
33 TEXT ORDER granting 32 Letter Request for extension of mediation deadline. Deadline for completion of Mandatory Mediation is 11/2/2015. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 8/7/2015. (sg) (Entered: 08/10/2015)
34 Letter Motion from Philip Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting that the Court enter the proposed protective order submitted to Judge Therese Wiley Dancks . (Attachments: # 1 Proposed Order/Judgment Proposed Protective Order Regarding Confidential Materials, # 2 Exhibit(s) Letter Desgranges to Don Gerace Regarding Proposed Protective Order)(Desgranges, Philip) (Entered: 09/17/2015)
35 STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL MATERIALS. Signed by Magistrate Judge Therese Wiley Dancks on 9/21/2015. (sg) (Entered: 09/21/2015)
36 Letter Motion from Philip Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting that the Court direct defendants' counsel to meet and confer with plaintiffs' counsel regarding plaintiffs' discovery concerns. submitted to Judge Dancks . (Attachments: # 1 Exhibit(s) Exhibit A)(Desgranges, Philip) (Entered: 10/21/2015)
37 TEXT ORDER : Court has reviewed letter motion (Dkt. No. 36 ). Court will address the motion at the telephone conference on 10/23/2015. Defendants' counsel should be prepared to discuss the issues raised in Dkt. No. 36. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 10/22/2015. (sg) (Entered: 10/22/2015)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Status Conference held on 10/23/2015. Appearances: Alexis Karteron, Esq., Philip Desgranges, Esq., Sam Thypyn−Berneo, Samuel Young, Esq. and Susan Young, Esq. for Plaintiffs; Donald Gerace, Esq. for Defendants; and Juli Pasquariello, Esq. for third party Defendant. Court inquires on status of discovery, discusses Dkt. 36 . Defendant to serve Rule 33 and 34 requests by 10/23/2015. Court

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 9 of 13

10/23/2015
11/02/2015 11/16/2015 11/20/2015 11/23/2015 11/24/2015 11/24/2015 12/02/2015 12/02/2015 12/07/2015

reviews Dkt. [36−1] and hears from all counsel re: issues raised in Dkt. [36−1]. Plaintiffs letter motion (Dkt. No. 36 ) is granted as follows: Defendant to serve corrected and/or updated responses to Plaintiffs discovery demands by 10/29/2015; Defendant to provide amended answers to Plaintiffs Interrogatories which are to be complete and shall clarify previous answers by 10/29/2015. Defendant to provide clarification of Defendants Rule 26 disclosures, as requested by Plaintiffs in Dkt. [36−1], by 10/29/2015. A separate text order will be issued as to these rulings. Court discusses Request No. 15 of Dkt. No. [36−1]. Counsel are to meet and confer to work out the issues of a proposed confidentiality stipulation and order, and submit to the Court. Attorney Desgranges to file status report re: the confidentiality stipulation and order by 11/16/2015. Another telephone status conference will be set for mid−December. Judge Dancks reminds counsel to follow the Local Rules of the Northern District of New York with respect to communicating with each other on discovery issues that arise, and encourages parties to schedule depositions if the case does not settle at mediation. (FTR Recorded: 11:06AM−12:08PM) (sg) (Entered: 11/02/2015)
38 TEXT ORDER : Based upon directives issued on the record during the 10/23/2015 Telephone Conference, it is hereby: ORDERED, that Plaintiff's letter motion (Dkt. No. 36 ) is granted as follows: Defendant to serve corrected and/or updated responses to Plaintiffs discovery demands by 10/29/2015; Defendant to provide amended answers to Plaintiffs Interrogatories which are to be complete and shall clarify previous answers by 10/29/2015. Defendant to provide clarification of Defendants Rule 26 disclosures, as requested by Plaintiffs in Dkt. [36−1], by 10/29/2015. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 10/23/2015. (sg) (Entered: 11/02/2015)
TEXT NOTICE OF TELEPHONE CONFERENCE: Telephone Status Conference has been set for 12/14/2015 at 10:00 AM before Magistrate Judge Therese Wiley Dancks. Attorney Gerace is directed to initiate the call using AT&T or other teleconferencing service, and to contact Chambers at (315) 234−8618 (the dedicated conference line) once all parties are on the line. (sg) (Entered: 11/02/2015)
39 STATUS REPORT Required by the Court's November 2nd Text Minute Entry by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win. (Desgranges, Philip) (Entered: 11/16/2015)
40 REPORT OF MANDATORY MEDIATION − A Mandatory Mediation session was held on November 2, 2015. Total Hours Spent by Mediator: 3; The outcome of Mandatory Mediation is: MEDIATION IS COMPLETE. CASE DID NOT SETTLE. The case will proceed toward trial pursuant to the Courts Uniform Pretrial Scheduling Order. (Pertz, Richard) (Entered: 11/20/2015)
ADR COMPLETED − Did not settle. (jlm) (Entered: 11/23/2015)
TEXT NOTICE OF TELEPHONE CONFERENCE: A Telephone Status Conference has been set for 1/28/2016 at 9:30 AM before Magistrate Judge Therese Wiley Dancks. Plaintiffs' counsel is directed to initiate the call and to contact Chambers at (315) 234−8618 (the dedicated conference line) once all counsel are on the line. (sg) (Entered: 11/24/2015)
TEXT NOTICE : In light of the Telephone Conference set for 1/28/2016, the conference previously scheduled for 12/14/2015 is OFF. (sg) (Entered: 11/24/2015)
41 Letter Motion from Donald R. Gerace, Esq. for Bruce J. Karam, Bruce J. Karam, Utica City School District, Utica City School District, Utica City School District Board of Education, Utica City School District Board of Education requesting Adjournment of 1/28/2016 Telephone Status Conference submitted to Judge Dancks . (Gerace, Donald) (Entered: 12/02/2015)
42 Letter Motion from Desgranges to Judge Dancks Regarding Mr. Gerace's Request for Adjournment for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting That the Status Conference Not Take Place on February 1 or 2 submitted to Judge Dancks . (Desgranges, Philip) (Entered: 12/02/2015)
43 TEXT ORDER granting 41 Letter Request for rescheduling of the next scheduled telephone conference. Court has received Plaintiff's letter at Dkt. 42 which does not oppose Defendants' request. Therefore, it is SO ORDERED, that the Telephone Status

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 10 of 13

12/16/2015 12/17/2015 12/18/2015 12/21/2015
12/22/2015 12/28/2015 01/05/2016 01/05/2016 01/15/2016 01/27/2016 01/27/2016

Conference originally set for 1/28/2015 has been RESCHEDULED for 2/3/2016 at 10:30 AM before Magistrate Judge Therese Wiley Dancks. Plaintiffs' counsel is directed to initiate the call and to contact Chambers at (315) 234−8618 (the dedicated conference line) once all counsel are on the line. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 12/4/2015. (sg) (Entered: 12/07/2015)
44 ORDER REASSIGNING CASE. Case reassigned to Judge David N. Hurd for all further proceedings. Senior Judge Thomas J. McAvoy no longer assigned to case. Signed by Senior Judge Thomas J. McAvoy on 12/16/2015. (dpk) (Entered: 12/16/2015)
45 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting that the Court enter the attached Proposed Protective Order submitted to Judge Dancks . (Attachments: # 1 Exhibit(s) Proposed Protective Order)(Desgranges, Philip) (Entered: 12/17/2015)
TEXT NOTICE OF TELEPHONE CONFERENCE: A Telephone Conference has been set for 12/21/2015 at 11:00 AM before Magistrate Judge Therese Wiley Dancks. Parties should be prepared to discuss Dkt. 45 − proposed Protective Order. Plaintiffs' counsel is directed to initiate the call and to contact Chambers at (315) 234−8618 (the dedicated conference line) once all counsel are on the line. (sg) (Entered: 12/18/2015)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Conference held on 12/21/2015. Appearances: Philip Desgranges, Esq. for Plaintiffs; Samuel Young, Esq., Susan Young, Esq., Donald Gerace, Esq. for Defendants; Julie Pasquariello Apter, Esq. for Third Party Defendant. Court discusses Dkt. 45 − proposed order re: information on records of other students. Court discusses revisions that must be made to the proposed order. Court advises that third party defendant must stipulate to the order as well. Counsel to re−submit the proposed order for Court review and approval. (FTR Recorded: 11:11AM−11:31AM) (sg) (Entered: 12/28/2015)
46 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting that the Court enter the attached Proposed Protective Order submitted to Judge Dancks . (Attachments: # 1 Exhibit(s) Proposed Protective Order)(Desgranges, Philip) (Entered: 12/22/2015)
TEXT NOTICE OF TELEPHONE CONFERENCE: A Telephone Status Conference has been set for 3/1/2016 at 10:30 AM before Magistrate Judge Therese Wiley Dancks. Attorney Gerace is directed to initiate the call and to contact Chambers at (315) 234−8618 (the dedicated conference line) once all counsel are on the line. (sg) (Entered: 12/28/2015)
47 STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIAL EDUCATION RECORDS. Signed by Magistrate Judge Therese Wiley Dancks on 1/4/2016. (sg) (Entered: 01/05/2016)
48 TEXT STATUS REPORT ORDER: It is ORDERED, that Attorney Gerace shall file a status report by 2/5/2016 setting forth the date(s) notices were sent pursuant to Dkt. No. 47 at paragraph 7. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 1/5/2016. (sg) (Entered: 01/05/2016)
49 STATUS REPORT/AFFIDAVIT of Service By Mail by Bruce J. Karam, Utica City School District, Utica City School District Board of Education. (Gerace, Donald) Modified on 1/20/2016 (sg). (Entered: 01/15/2016)
50 TEXT ORDER: In light of the Telephone Conference scheduled for 3/1/2016 at 10:30AM, the Telephone Conference set for 2/3/2016 is CANCELLED. The 3/1/2016 call shall be made per the directive in the 12/28/2015 Text Notice. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 1/27/2016. (sg) (Entered: 01/27/2016)
51 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting that the Court enter the attached Proposed Order submitted to Judge Dancks . (Attachments: # 1 Exhibit(s) Stipulation and Proposed Order to Extend Discovery Deadlines)(Desgranges, Philip) (Entered: 01/27/2016)

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 11 of 13

01/29/2016 01/29/2016
02/01/2016
02/04/2016 02/11/2016 02/12/2016 02/12/2016 02/12/2016 02/16/2016
02/19/2016 02/22/2016

52 Letter Motion from Donald R. Gerace, Esq. for Bruce J. Karam, Utica City School District, Utica City School District Board of Education requesting rescheduling telephone conference submitted to Judge Dancks . (Gerace, Donald) (Entered: 01/29/2016)
53 TEXT ORDER granting 51 Letter Request and approving stipulation extending deadlines as follows: All fact discovery due 7/29/2016. Plaintiffs' expert disclosure due 9/1/2016. Defendants' and Third Party Plaintiff's expert disclosure due 10/3/2016. Third Party Defendant's expert disclosure due 11/1/2016. Rebuttal due 11/21/2016. All Discovery including expert depositions to be completed by 12/19/2016. Discovery motions due 1/9/2017. In light of case being reassigned to District Judge Hurd, the trial date will be reset by Judge Hurd at a future time. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 1/28/2016.(sg) (Entered: 01/29/2016)
54 TEXT ORDER granting 52 Letter Request to reschedule telephone conference. The telephone conference set for 3/1/2016 has been RESCHEDULED for 2/22/2016 at 11:00 AM before Magistrate Judge Therese Wiley Dancks. Attorney Gerace is directed to initiate the call and to contact Chambers at (315) 234−8618 (the dedicated conference line) once all counsel are on the line. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 1/29/2016. (sg) (Entered: 02/01/2016)
55 STATUS REPORT by Bruce J. Karam, Utica City School District, Utica City School District Board of Education. (Gerace, Donald) (Entered: 02/04/2016)
56 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting to join the Rule 16 conference in case No. 15−cv−1364 submitted to Judge Dancks . (Desgranges, Philip) (Entered: 02/11/2016)
57 TEXT ORDER : Defendant to file response to letter request (Dkt. No. 56 ) setting forth reasons for objections to request regarding participation in Rule 16 Conference in related case (15−CV−1364) by 4:00PM on 2/12/2016.SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/11/2016. (sg) (Entered: 02/12/2016)
58 Letter Motion from Donald R. Gerace, Esq. for Bruce J. Karam, Utica City School District, Utica City School District Board of Education requesting Objecting to Plaintiffs participation in the Rule 16 conference submitted to Judge Dancks . (Gerace, Donald) (Entered: 02/12/2016)
59 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting responding to Mr. Gerace's letter from this afternoon submitted to Judge Dancks . (Desgranges, Philip) (Entered: 02/12/2016)
60 TEXT ORDER : Court has reviewed letter motions (Dkt. Nos. 56 , 58 , and 59 ) regarding request to participate in Rule 16 conference of related case 15−CV−1364 and objections to same. Plaintiffs' request to participate in Rule 16 conference of related case denied without prejudice to request that the Court consider joint conferences in the future. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/16/2016. (sg) (Entered: 02/16/2016)
61 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting regarding upcoming status conference submitted to Judge Dancks . (Desgranges, Philip) (Entered: 02/19/2016)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Conference held on 2/22/2016. Appearances: Alexis Karteron, Esq., Philip Desgranges, Esq., Susan Young, Esq. for Plaintiffs; Donald Gerace, Esq. for Defendants; Julie Pasquariello Apter, Esq. for Third Party Defendant. Court discusses Dkt. 61. After hearing from the parties on the issues raised in the letter, Judge Dancks denies Dkt. 61 without prejudice to renew requests. A separate Text Order will be issued. Court inquires on status of discovery. Defendants to serve Rule 33 and 34 Requests on all parties by 2/26/2016. Review of the school records as agreed among the parties, with the exception of those who objected, to be completed by 3/31/2016. Attorney Desgranges is to file a status report by 2/29/2016 advising the Court of the date(s) of the inspection. Counsel request a settlement conference with the Court. Settlement conference scheduled, a separate text notice will be issued setting the date and time. This is an in−person settlement conference, as discussed during this conference. Should any party attending the settlement conference require an interpreter, the Court advises that counsel must engage their own interpreters. (FTR

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 12 of 13

02/22/2016 02/22/2016
02/29/2016 03/24/2016
03/25/2016 04/22/2016 04/25/2016 04/29/2016 05/03/2016 05/09/2016 05/10/2016

Recorded: 11:09AM−11:47AM) (sg) (Entered: 02/22/2016)
62 TEXT ORDER as to 61 Letter Request: After hearing from the parties at the 2/22/2016 Telephone Conference with respect to Dkt. 61 , and consideration of the submission at Dkt. 61 , the Court DENIES plaintiff's request to review records of those individuals who submitted an objection, without prejudice; and further DENIES plaintiff's request to take more than 10 depositions, without prejudice. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/22/2016. (sg) (Entered: 02/22/2016)
63 TEXT NOTICE OF SETTLEMENT CONFERENCE: An IN PERSON settlement conference has been scheduled for Thursday, March 24, 2016 at 1:00PM in Syracuse with Magistrate Judge Therese Wiley Dancks. The parties will meet in Chambers, located on the 3rd floor, James M Hanley Federal Building, 100 South Clinton Street, Syracuse, New York. Parties must appear in person. The attached Confidential Settlement Statement must be completed and received by Judge Wiley Dancks no later than Thursday, March 17, 2016. The settlement statement MUST NOT be electronically filed with the Court. The statement may be emailed to the Judge's Courtroom Deputy Clerk at suzanne_gunter@nynd.uscourts.gov, an email address provided solely for this purpose. (sg) (Entered: 02/22/2016)
64 STATUS REPORT advising the Court of the dates for inspecting the student records permitted by the Court's orders by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win. (Desgranges, Philip) (Entered: 02/29/2016)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Settlement Conference held on 3/24/2016 in Syracuse, New York. Appearances: Alexis Karteron, Esq., Philip Desgranges, Esq., Samuel Young, Esq. and Susan Young, Esq. for Plaintiffs; Donald Gerace, Esq. with Elizabeth Paul for Defendants; Julie Apter, Esq. with Shelly Callahan and Tracy Davis for Third Party Defendant. Parties have come to an agreement, subject to finalization of the settlement language and approval of Defendant Board of Education. Plaintiffs to submit a proposed settlement agreement to the Defendant by 4/15/2016. Attorney Gerace to file status report on settlement agreement and whether it has been finalized by 4/22/2016. Discovery in the case is stayed at this time. (Court Reporter (Jodi Hibbard ) (sg) (Entered: 03/25/2016)
TEXT NOTICE OF STATUS REPORT DEADLINE: Attorney Gerace to file status report on setlement by 4/22/2016 per 3/24/2016 Text Minute Entry. (sg) (Entered: 03/25/2016)
65 Status Report from Donald R. Gerace, Esq. for Bruce J. Karam, Utica City School District, Utica City School District Board of Education requesting Status Update submitted to Judge Wiley Dancks . (Gerace, Donald) Modified on 4/22/2016 (sg). (Entered: 04/22/2016)
66 TEXT ORDER: Court has reviewed status report (Dkt. No. 65 ). Parties to file Notice of Dismissal by 4/29/2016 or Defendant to file further status report on settlement by 4/29/2016. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 4/25/2016. (sg) (Entered: 04/25/2016)
67 STATUS REPORT by Bruce J. Karam, Utica City School District, Utica City School District Board of Education. (Gerace, Donald) (Entered: 04/29/2016)
68 TEXT ORDER: The Court has reviewed the Status Report (Dkt. No. 67 ). Plaintiff to file stipulation of dismissal or status report on settlement by 5/9/2016. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 5/2/2016. (sg) (Entered: 05/03/2016)
69 STATUS REPORT Required by the Court's May 3rd Text Order by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win. (Desgranges, Philip) (Entered: 05/09/2016)
70 TEXT ORDER : Court reviewed plaintiffs' status report (Dkt. No. 69 .) Plaintiffs' counsel to file motion regarding Plaintiff Cho Cho Win by 5/13/2016 which includes all efforts to locate Win and certificates of service on all counsel and Plaintiff Win at last known address. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 5/10/2016. (sg) (Entered: 05/10/2016)

Case: 6:15-cv-488 As of: 09/18/2016 10:59 AM EDT 13 of 13

05/13/2016 05/19/2016
05/19/2016
06/02/2016 06/03/2016 06/03/2016 06/03/2016 06/06/2016 06/06/2016 06/20/2016 06/20/2016 07/14/2016 07/19/2016 07/29/2016 08/01/2016
08/04/2016

71 STATUS REPORT by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win. (Karteron, Alexis) (Entered: 05/13/2016)
72 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting that the Court sign and enter the consent decree and protective order submitted to Judge Hurd . (Desgranges, Philip) (Entered: 05/19/2016)
73 SETTLEMENT AGREEMENT by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win. (Attachments: # 1 Exhibit(s) A − Stipulation of Dismissal, # 2 Exhibit(s) B − Protective Order, # 3 Exhibit(s) C − Letter to ELLs, # 4 Exhibit(s) D − Waiver Form, # 5 Exhibit(s) E − Opt−out Form, # 6 Exhibit(s) F − Checklist, # 7 Exhibit(s) G − Flyer, # 8 Exhibit(s) H − Poster)(Desgranges, Philip) (Entered: 05/19/2016)
74 STIPULATION of Dismissal by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win submitted to Judge Hurd. (Desgranges, Philip) (Entered: 06/02/2016)
75 Letter Motion from Alexis Karteron for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting approval of motion to withdraw as counsel submitted to Judge Hurd . (Karteron, Alexis) (Entered: 06/03/2016)
76 CONSENT DECREE "So Ordered" by U.S. District Judge David N. Hurd on 6/3/2016. (lah) (Entered: 06/06/2016)
77 STIPULATION AND ORDER DISMISSING CASE. Signed by U.S. District Judge David N. Hurd on 6/3/2016. (lah) (Entered: 06/06/2016)
78 ORDER granting Alexis Karteron's motion to withdraw as counsel, Dkt. No. 75 . Signed by U.S. District Judge David N. Hurd on 6/6/2016. (lah) (Entered: 06/06/2016)
79 ORDER and STIPULATED PROTECTIVE ORDER Regarding Confidential Forms Pursuant to the Consent Decree. Signed by U.S. District Judge David N. Hurd on 6/6/2016. (lah) (Entered: 06/06/2016)
80 STIPULATION and Proposed Order to Extend Time for Motion for Attorneys' Fees and Costs by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win submitted to Judge Hurd. (Desgranges, Philip) (Entered: 06/20/2016)
81 STIPULATION AND ORDER. The time within which Plaintiffs' counsel must move for attorneys' fees and costs is extended to July 15, 2016. Signed by Judge David N. Hurd on 6/20/2016. (lah) (Entered: 06/21/2016)
82 STIPULATION and Proposed Order to Extend Time for Motion for Attorneys' Fees and Costs by B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win submitted to Judge Hurd. (Desgranges, Philip) (Entered: 07/14/2016)
83 ORDER ON STIPULATION − That the time within which Plaintiffs counsel must move for attorneys fees and costs isextended to July 29, 2016. Signed by Judge David N. Hurd on 4/15/2016. (ptm) (Entered: 07/19/2016)
84 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting Extension of Time to Move for Attorneys' Fees and Costs submitted to Judge Hurd . (Desgranges, Philip) (Entered: 07/29/2016)
85 TEXT ORDER Granting 84 Letter Motion from Desgranges for B. B−T, Ali Janar, Ado Lar, Suk Maya Rai, Patrick Tuyizere, Cho Cho Win requesting an extension of time to move for Attorneys' Fees and Costs until 8/5/2016. So Ordered by Judge David N. Hurd on 8/1/2016. (ptm) (Entered: 08/01/2016)
86 STIPULATION and Proposed Order Concerning Attorneys' Fees and Costs by Patrick Tuyizere submitted to Judge Hurd. (Cadin, Christopher) (Entered: 08/04/2016)