2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 1 of 133 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D.R., as a minor through parent and next friend Dawn Richardson, A.K., as a minor through parent and next friend, Angy Keelin, C.D.M., as a minor through parent and next friend Crystal McCadden, C.M., as a minor through parent and next friend Crystal McCadden, J.T., as a minor through parent and next friend Nakiya Wakes, N.S, as a minor through parent and next friend Nakiya Wakes, J.W., as a minor through parent and next friend Kathy Wright, C.D., as a minor through parent and next friend Twanda Davis, D.K. as a minor through parent and next friend Rachel Kirksey, M.K. as a minor through parent and next friend Rachel Kirksey, O.N., as a minor through parent and next friend Manita Davis, D.T. as a minor through parent and next friend Manita Davis, D.D. as a minor through parent and next friend Willie Daniels, C.W. as a minor through parent and next friend Chandrika Walker, J.B. as a minor through parent and next friend Jeree Brown, individually and on behalf of all similarly situated persons,
Plaintiffs,
v.
Michigan Department of Education, Genesee Intermediate School District, Flint Community Schools,
Defendants.
/
Kary L. Moss (P49759) Kristin L. Totten (P72942) Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) ACLU Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201
1

CLASS ACTION COMPLAINT
Gregory G. Little Lindsay M. Heck Walter A. Ciacci Dominique N. Forrest Laura A. Grai White & Case LLP 1155 Avenue of the Americas

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 2 of 133 Pg ID 2

(313) 578-6800 kmoss@aclumich.org ktotten@aclumich.org dkorobkin@aclumich.org msteinberg@aclumich.org
David G. Sciarra, Jessica Levin Education Law Center 60 Park Place, Suite 300 Newark, NJ 07102 (973) 624-1815 dsciarra@edlawcenter.org jlevin@edlawcenter.org
Counsel for Plaintiffs

New York, NY 10036-2787 (212) 819-8200 gregory.little@whitecase.com lindsay.heck@whitecase.com walter.ciacci@whitecase.com dominique.forrest@whitecase.com laura.grai@whitecase.com
/
COMPLAINT

INTRODUCTION

1. The state-created public health crisis in Flint, Michigan, whereby an entire population was poisoned with lead-contaminated water, is now well known. Since the full magnitude of this crisis became public in 2015, there have been federal and state inquiries, investigations, task forces, declarations, and appropriations. Yet there has been no effective response to address the needs of the thousands of children who attend Flint’s public schools. This class action civil rights lawsuit is brought to remedy that failure.

2

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 3 of 133 Pg ID 3
2. Flint is a community in sustained economic decline, 1 with
deterioration of essential infrastructure and public services, including education
and public health services.2 Forty percent of Flint’s residents live in poverty, one
of the highest rates in the nation for a city of its size.3 The childhood poverty rate
is equally staggering: 42% in Flint as compared to 14.8% in the United States.4
The majority of Flint’s residents are African American.5
1 Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 284 (2016) (citing A.J. Jacobs, The impacts of variations in development context on employment growth: a comparison of central cities in Michigan and Ontario, 23 ECON. DEV. QUARTERLY 351 (2009) (noting that Flint is a postindustrial region “struggling from years of disinvestment by the automobile industry and associated manufacturing activities: the region has lost 77% of its manufacturing employment and 41% of employment overall since 1980.”) 2 Josh Sanburn, Why Flint’s Life Expectancy Is Below the National Average, TIME (April 11, 2016), available at http://time.com/4290027/flint-genesee-county-lifeexpectancy-study/. 3 Abby Goodnough, Flint Weighs Scope of Harm to Children Caused by Lead in Water, N.Y. TIMES (Jan. 29, 2016), available at http://www.nytimes.com/2016/01/30/us/flint-weighs-scope-of-harm-to-childrencaused-by-lead-in-water.html?_r=0. 4 Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 284 (2016). 5 Approximately 57% of Flint’s 99,000 residents are African American. Abby Goodnough, Flint Weighs Scope of Harm to Children Caused by Lead in Water, N.Y. TIMES (Jan. 29, 2016), available at
3

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 4 of 133 Pg ID 4
3. Even before the lead crisis, the Flint public education system was failing its students and the community. Student enrollment in Flint Community Schools has declined rapidly, graduation rates are low, and drop-out rates high. The district, facing a crippling deficit, has drastically reduced staff, programs and services in recent years, leaving school children in under-resourced, overcrowded classrooms.
4. Given that lead is known to be a neurotoxin that causes cognitive, developmental and behavioral impairment in children, it is imperative that Flint’s public schools be prepared and equipped to provide critical services to students with disabilities. Yet, as detailed throughout this complaint, in nearly every area of preschool to grade 12 education, the State of Michigan has failed to provide the resources and support essential to enable the Flint public education system to meet the needs of this vulnerable population. In the wake of the Flint lead crisis, Flint children face an unprecedented educational and civil rights disaster.
5. As Flint pediatrician Dr. Mona Hanna-Attisha has explained, “If you were going to put something in a population to keep them down for generations to
http://www.nytimes.com/2016/01/30/us/flint-weighs-scope-of-harm-to-childrencaused-by-lead-in-water.html?_r=0.
4

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 5 of 133 Pg ID 5
come, it would be lead.” 6 Lead, without an aggressive, comprehensive and proactive response, will, when combined with poverty, shackle thousands of Flint children to the circumstances into which they were born, narrowing their prospects for a healthy and productive life.
6. For the children of Flint, education is the antidote to the public health crisis they have endured. Well-resourced, high functioning schools are tools for self-empowerment, upward mobility, and ascendancy from poverty. For the thousands of Flint children exposed to lead, their schools must afford them the opportunity to become productive citizens and contributing members of the community, an opportunity they deserve and are entitled to.
7. Recent congressional testimony of the Superintendent of Flint Community Schools, Bilal Tawwab, highlighted the central role of special education to mitigate the educational emergency confronting Flint’s children. He testified that Flint schools will need “expanded special education services,” which must include lead-free facilities, comprehensive screening and evaluation services, early intervention programs, year-round schooling, and the resources to attract and
6 Abby Goodnough, Flint Weighs Scope of Harm to Children Caused by Lead in Water, N.Y. TIMES (Jan. 29, 2016), available at http://www.nytimes.com/2016/01/30/us/flint-weighs-scope-of-harm-to-childrencaused-by-lead-in-water.html?_r=0.
5

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 6 of 133 Pg ID 6
retain highly skilled special education teachers and support staff.7 He accurately described his school district as experiencing an “educational emergency” in desperate and urgent “need [of] support now and into the future.”8
8. If the children of Flint are denied meaningful access to essential education teachers, staff, programs and services, their opportunities to contribute to society through productive civic engagement, and to thrive on a personal level, will be permanently foreclosed. These essential resources must include appropriate services to identify, evaluate and address disabilities in their formative years. Approximately 30,000 school-age children 9 currently reside in Flint. It is impossible to overstate the resounding effects of the failure to provide meaningful education opportunities, and to provide them now.
9. Flint is a symbol in the national consciousness of gross governmental malfeasance and a profound inability of government to promptly respond to the vulnerable population who unknowingly are the victims of that malfeasance and
7 Testimony of Superintendent Bilal Kareem Tawwab, “The Flint Water Crisis: Lessons for Protecting America’s Children,” House Democratic Steering and Policy Committee (Feb. 10, 2016). 8 Id. 9 There were 29,711 children between the ages of 0 and 19 residing in Flint during the 2015-16 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/.
6

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 7 of 133 Pg ID 7
inaction. Children are the most vulnerable victims of the Flint crisis. Aggressive measures must be taken immediately to redress the failures of the Flint public education system. If not, Flint will also become a national symbol of the irreversible consequences when government at all levels abandons its children.
SUMMARY OF LEGAL CLAIMS 10. This is a class action civil rights lawsuit for declaratory and injunctive relief, brought pursuant to federal and state law, to vindicate the rights of approximately 30,000 school-age children10 residing in Flint who currently have, or who have placed been at risk of developing, a disability due to elevated levels of lead in the drinking water over an extended time period of at least eighteen months. As a result of this prolonged exposure, these children require community-wide early screening; timely referral for, and performance of, evaluations to determine whether they have a qualifying disability which makes them eligible for special education and related services; provision of special education and related services in the least restrictive environment; and procedural safeguards to ensure that they are not subject to disciplinary measures for disability-related behaviors, in compliance with the mandates of the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), 20 U.S. § 1400 et seq.; § 504 of the
10 Id. 7

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 8 of 133 Pg ID 8
Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794; Title II of the
Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq.; and
Michigan law.
11. The approximately 30,000 school-age children in Flint between the
ages of 0 and 19 were exposed to lead-contaminated water over a period of at least
eighteen months beginning in April 2014.11 This exposure put all children in Flint
at risk of a disability.12
11 Dominic Adams, Closing the valve on history: Flint cuts water flow from Detroit after nearly 50 years, MLIVE (April 25, 2014), available at http://www.mlive.com/news/flint/index.ssf/2014/04/closing_the_valve_on_history _f.html 12 The IDEA defines a “child with a disability” as a child with intellectual disabilities, having mental retardation, a hearing impairment (including deafness), a speech or language impairment, visual impairment (including blindness), a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, any other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. 20 U.S.C. § 1401(3)(A); 34 C.F.R. § 300.8(a)(1).
Lead poisoning is a chronic health problem that may lead to the qualifying disability of “Other Health Impairment” under the IDEA. An “other health impairment” is defined as “limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that – (i) [i]s due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and (ii) [a]dversely affects a child’s educational performance.” 34 C.F.R. § 300.8(c)(9)(i-ii) (emphasis added).
8

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 9 of 133 Pg ID 9
12. This population includes approximately 8,000 children13 under the age of five. All of these children are at risk of developing a disability, or already have a disability. Despite this community-wide condition, Defendants Michigan Department of Education (“MDE”), Genesee Intermediate School District (“GISD”), and Flint Community Schools (“FCS”) do not provide early screening, timely referrals for evaluations for Flint three-and four-year olds to identify the existence of a qualifying disability and eligibility for special education and related services, or appropriate early intervention services, including universal, highquality preschool education.
13. Similarly, all 5,42614 of the children attending FCS schools in grades K-12 are at risk of developing a disability due to their prolonged exposure to lead. Despite that risk, FCS has a pattern and practice of systemically failing to provide ongoing screening and timely referrals for evaluations to identify qualifying disabilities which make students eligible for special education services pursuant to IDEA’s child find mandate.
13 There were 7,841 children under the age of 5 residing in Flint during the 201516 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/. 14 There were 5,426 students attending FCS schools in grades K-12 during the 2015-16 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/.
9

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 10 of 133 Pg ID 10
14. Of the 5,426 students attending FCS schools, 907, or 16.7%,15 are classified with qualifying disabilities and are consequently eligible for special education and related services. However, FCS has an ongoing pattern and practice of systemically failing to provide special education and related services compliant with students’ individualized education programs in the least restrictive environment, as required by IDEA.
15. FCS also has an ongoing pattern and practice of systemically failing to provide students with disabilities with procedural safeguards as required by IDEA in the administration of disciplinary practices, as well as a pattern and practice of using unduly harsh disciplinary measures with students with disabilities, including physical restraints and seclusion techniques, contrary to IDEA.
16. MDE, the State agency charged with conducting oversight and ensuring FCS’s and GISD’s compliance with IDEA in the provision of special education services, has engaged in an ongoing pattern and practice of systemically failing to provide FCS and GISD with sufficient funding and support to enable
15 There were 907 special education students attending FCS schools in grades K-12 during the 2015-16 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/.
10

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 11 of 133 Pg ID 11
FCS and GISD to provide: early screening and intervention services for children aged 3-4; evaluations for all children at risk of a disability in fulfillment of the child find mandate; special education services compliant with students’ individualized education programs in the least restrictive environment; and procedural safeguards to prevent the use of unduly harsh disciplinary measures for disability-related behaviors, as required by IDEA.
17. The named plaintiffs bring this action on behalf of their own children and all similarly situated children in Flint who have a disability or who are at risk of developing a disability due to prolonged exposure to elevated lead levels in the drinking water. Plaintiffs seek to remedy the ongoing violations of IDEA, Section 504, Title II, and Michigan law by seeking the provision of early screening and intervention services for children in Flint aged 3-4; identification and evaluation of all children with, or at risk of, disabilities who are attending, or who may attend, FCS schools; special education services compliant with students’ individualized education programs in the least restrictive environment in FCS schools; and procedural safeguards when administering discipline to students for disabilityrelated behaviors in FCS schools, including through the elimination of physical restraints and seclusion techniques.
11

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 12 of 133 Pg ID 12
JURISDICTION AND VENUE 18. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331, given the federal questions raised, and 28 U.S.C. § 1343(a), given the civil rights claims raised. This Court also has jurisdiction over the claims raised herein under 20 U.S.C. § 1415(i)(3)(A) and 29 U.S.C. § 794, which provide the district courts of the United States with jurisdiction over any action pursuant to those sections regardless of the amount in controversy. This Court has supplemental jurisdiction over the state-law claim pursuant to 28 U.S.C. § 1367. 19. Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims asserted occurred within Genesee County, which is located in the Eastern District of Michigan.
PARTIES Representative Plaintiffs
20. Plaintiff D.R. is a twelve-year-old who resides in Flint, Genesee County and who is a student in the seventh grade at the International Academy of Flint, a charter school. He previously attended Holmes 3-6 STEM Academy, an FCS school, through the 2015-16 academic year. Plaintiff D.R. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. He brings this case through his parent and next friend, Dawn Richardson.
12

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 13 of 133 Pg ID 13
21. Plaintiff A.K. is a six-year-old who resides in Flint, Genesee County and who attends Jack P. Haas Elementary School, a GISD-run school, where he is completing Kindergarten for a second time. He formerly attended a preschool program at Durant-Tuuri-Mott Elementary School, an FCS school. Plaintiff A.K. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. He brings this case through his parent and next friend, Angy Keelin.
22. Plaintiff C.D.M. is an eight-year-old who resides in Flint, Genesee County and who attends Pierce Elementary School, an FCS school. Prior to the 2016-17 school year, he attended Brownell K-2 STEM Academy, another FCS school. Plaintiff C.D.M. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. He brings this case through his parent and next friend, Crystal McCadden.
23. Plaintiff C.M. is a twelve-year-old who resides in Flint, Genesee County and who was a seventh-grade student at the charter school New Standard Academy during the 2015-16 school year. She is now enrolled in Hamady Middle School, which is part of the Westwood Heights School District, located in Northern Flint. Plaintiff C.M. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. She brings this case through her mother and next friend, Crystal McCadden.
13

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 14 of 133 Pg ID 14
24. Plaintiff J.T. is a seven-year-old student in the second grade at Brownell K-2 STEM Academy, an FCS school. Previously, he was a student at the International Academy of Flint, a charter school, through the 2015-16 school year. Plaintiff J.T. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. He brings this case through his parent and next friend, Nakiya Wakes.
25. Plaintiff N.S. is a seventeen-year-old who resided in Flint, Genesee County, and who attended Flint Northwestern High School, an FCS school, through the 2015-16 academic year. Plaintiff N.S. has been exposed to leadcontaminated water for a prolonged period of at least eighteen months. She brings this case through her parent and next friend, Nakiya Wakes.
26. Plaintiff J.W. is a fourteen-year-old who was repeating the sixth grade for the third time at Holmes 3-6 STEM Academy, an FCS school, when he was expelled from all FCS schools during the 2015-16 school year. He is now in a juvenile detention facility in Flint. Plaintiff J.W. has been exposed to leadcontaminated water for a prolonged period of at least eighteen months. He brings this case through is parent and next friend, Kathy Wright.
27. Plaintiff C.D. is a sixteen-year-old resident of Flint, Genesee County who was a tenth grade student at Northwestern High School, an FCS school, until he was expelled from school in February 2016. Plaintiff C.D. has been exposed to
14

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 15 of 133 Pg ID 15
lead-contaminated water for a prolonged period of at least eighteen months. He brings this case though his parent and next friend, Twanda Davis.
28. Plaintiff D.K. is a seven-year-old African-American student in the first grade at Eisenhower Elementary School, an FCS school, who resides in Flint, Genesee County. Plaintiff D.K. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. He brings this case through his parent and next friend, Rachel Kirksey.
29. Plaintiff M.K. is a three-year-old who resides in Flint, Genesee County. Plaintiff M.K. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. She brings this case through her parent and next friend, Rachel Kirksey.
30. Plaintiff O.N. is an eight-year-old in the third grade at Doyle/Ryder Elementary School, an FCS school, who resides in Flint, Genesee County. Plaintiff O.N. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. He brings this case through his grandmother and next friend, Manita Davis.
31. Plaintiff D.T. is a thirteen-year-old who resides in Flint, Genesee County and who is a seventh grade student at Flint Southwestern Academy, an FCS school. Previously, she attended Doyle/Ryder Elementary School, another FCS school. Plaintiff D.T. has been exposed to lead-contaminated water for a
15

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 16 of 133 Pg ID 16
prolonged period of at least eighteen months. She brings this case through her grandmother and next friend, Manita Davis.
32. Plaintiff D.D. is a twelve-year-old seventh grade student who resides in Flint, Genesee County and who currently attends school in the CarmanAinsworth Community Schools district. He previously attended Holmes 3-6 STEM Academy, an FCS school. Plaintiff D.D. has been exposed to leadcontaminated water for a prolonged period of at least eighteen months. He brings this case through his parent and next friend, Willie Daniels.
33. Plaintiff C.W. is a four-year-old resident of Flint, Genesee County who attends the daycare and Head Start preschool programs offered on site through the GISD at St. Luke’s in Flint. In June and July of 2015, C.W. attended the daycare program at Uniquely Created Children’s Center, which is housed in New Standard Academy, a charter school in Flint. Plaintiff C.W. has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. He brings this case through his parent and next friend, Chandrika Walker.
34. Plaintiff J.B. is a five-year-old African-American student in Kindergarten at Eisenhower Elementary School, an FCS school, who resides in Flint, Genesee County. He has been exposed to lead-contaminated water for a prolonged period of at least eighteen months. Plaintiff J.B. brings this case through his mother and next friend, Jeree Brown.
16

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 17 of 133 Pg ID 17
Defendants 35. Defendant MICHIGAN DEPARTMENT OF EDUCATION (“MDE”)
is the department of the State of Michigan government responsible for administering and enforcing laws related to public education. Mich. Comp. Laws §§ 16.400-16.402. As Michigan’s state educational agency (“SEA”), MDE bears the ultimate responsibility for ensuring that all public schools in Michigan— including public school academies or charter schools—comply with the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C. § 1412(a)(11)(A). MDE is also a “program or activity” covered by Section 504, 20 U.S.C. § 794(b), and a “public entity” under Title II, 42 U.S.C. § 12131(1)(A).
36. Defendant GENESEE INTERMEDIATE SCHOOL DISTRICT (“GISD”) is the intermediate school district (“ISD”) responsible for overseeing special education services for students who attend public schools in Flint. As such, GISD provides federal, state and local funds to FCS and public school academies for special education; (2) coordinates the delivery of special education services; and (3) investigates special education programs and services it or a local district has been contracted to provide. Mich. Comp. Laws § 380.1711(1)(h).
37. Defendant FLINT COMMUNITY SCHOOLS (“FCS”) is a public school district in Flint, Michigan required under Michigan law to provide “special education programs and services designed to develop the maximum potential of
17

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 18 of 133 Pg ID 18
each student with a disability in its district on record under section 1711 for whom an appropriate educational or training program can be provided in accordance with the intermediate school district special education plan.” Mich. Comp. Laws §380.1751(1). FCS is a local educational agency (“LEA”) under IDEA, responsible for ensuring that its special education policies, procedures, and programs are consistent with those of the SEA under IDEA. 20 U.S.C. §1414(a)(1). FCS is also a “program or activity” covered by Section 504, 20 U.S.C. §794(b), and a “public entity” under Title II, 42 U.S.C. §12131(1)(A).
DESCRIPTION OF PLAINTIFF CLASS 38. Plaintiffs bring this suit as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all present and future children, ages 3 through age 26, and the parents of such children, residing within Flint, Michigan, who 1) have been exposed to lead and 2) are or may be eligible for special education and related services pursuant to the IDEA and its federal implementing regulations, Section 504, and Title II, but who have not been timely identified, located, referred, evaluated, or provided with special education and related services. 39. The Class consists of four subgroups as follows: 1) children aged 3-4 who have been deprived of, and lack access to, early screening and intervention services; 2) children who attend or may attend FCS schools and whose disabilities
18

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 19 of 133 Pg ID 19
have not been timely identified and evaluated to determine their eligibility for special education and related services and who do not have completed individualized education programs in accordance with IDEA; 3) students with disabilities in FCS who have not been provided special education and related services in accordance with their individualized education programs in the least restrictive environment; and 4) students with disabilities who are not afforded the procedural and substantive safeguards in IDEA.
40. The class consists of hundreds of current children, as well as numerous future unknown children, so numerous as to make joinder of all members impractical.
41. Material questions of fact and law are common to the class, including: a. Whether Defendants violated Plaintiffs’ rights under the IDEA, Section 504, Title II, and Michigan law by: i) failing timely to identify and evaluate all children with disabilities aged 3-4 or who attend or who may attend FCS schools who require or who may require special education services; ii) failing to provide timely and adequate special education and related services to children determined eligible; and iii) failing to provide compensatory education to all children determined eligible for special education who were not 19

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 20 of 133 Pg ID 20
timely identified, evaluated, or provided with legallymandated special education and related services; b. Whether Defendants MDE and GISD additionally violated Plaintiffs’ rights under the IDEA, Section 504, and Title II by failing appropriately to monitor and enforce Defendant FCS’s timely identification of, evaluation of, and provision of, legally mandated special education and related services to, children with known or suspected disabilities who require or may require such services. 42. The claims of the representative Plaintiffs are typical of the claims of the class. The representative Plaintiffs, like all class members, claim that Defendants have violated their rights under the IDEA, its federal implementing regulations, Section 504, Title II, and Michigan law, to be identified, evaluated, and, if eligible, provided with special education and related services. The representative Plaintiffs, like all class members, also assert that Defendants MDE and GISD have failed appropriately to monitor the provision of special education and related services by FCS. 43. The representative Plaintiffs will fairly and adequately protect the interests of the class as they have no interests antagonistic to those of the class.
20

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 21 of 133 Pg ID 21
44. The representative Plaintiffs’ counsel, attorneys from the American Civil Liberties Union Fund of Michigan, Education Law Center, and White & Case LLP, are experienced in civil rights litigation, disability law, education law, and class actions. The representative Plaintiffs’ attorneys will vigorously prosecute this action on behalf of the entire class.
45. Defendants are acting or refusing to act on grounds generally applicable to the Plaintiff class, making appropriate injunctive relief and declaratory relief with respect to the Plaintiff class as a whole. The Plaintiff class seeks to enjoin Defendants from continuing to violate their federal and state rights to receive a free and appropriate public education free of discrimination based on their disabilities.
LEGAL STANDARDS IDEA REQUIREMENTS
46. The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) requires that eligible children with disabilities, including children with disabilities who have been suspended or expelled from school, receive a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101(a). The IDEA establishes a system of procedural and substantive requirements to
21

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 22 of 133 Pg ID 22
which the Defendants must adhere to ensure that each child with a disability receives a free appropriate public education. 20 U.S.C. § 1401 et seq.
47. A “free appropriate public education” is defined as special education and related services that (a) are provided at public expense, under public supervision and direction, and without charge; (b) meet the standards of the state educational agency (“SEA”); (c) include an appropriate preschool, elementary school, or secondary school education; and (d) conform with the student’s individualized education program (“IEP”). 20 U.S.C. § 1401(9); 34 C.F.R. §300.17.
48. Local educational agencies (“LEAs”), such as Defendants FCS and GISD, must have in effect policies, procedures, and programs that are consistent with the State policies and procedures established under the IDEA in providing for the education of children with disabilities within their respective jurisdictions. 20 U.S.C. § 1413(a)(1); 34 C.F.R. § 300.201. The State of Michigan has set forth the policies and procedures as required by the IDEA in Mich. Admin. Code R. 340.1701 et seq.
49. The state educational agency (“SEA”) bears the ultimate responsibility for ensuring that all public schools in the state of Michigan comply with the IDEA. 20 U.S.C. § 1412(a)(11)(A). Accordingly, Defendant MDE is responsible for ensuring that the LEAs – Defendants FCS and GISD – are
22

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 23 of 133 Pg ID 23
monitored for implementation of, and compliance with, the IDEA. 34 C.F.R. § 300.600(a)(1). If the state determines that the LEA is not in compliance, the state must take necessary action to enforce compliance. 34 C.F.R. §§ 300.600(a)(3), 300.608(a), 300.222(a). An assurance of compliance with this law is required by Mich. Admin. Code R. 340.1701a.
50. In addition to its general supervisory responsibilities, Defendant MDE has responsibility to ensure that all LEAs in Michigan, including Defendants FCS and GISD, implement and comply with the following specific provisions of the IDEA.
51. The IDEA mandates that Defendants must have in effect policies and procedures to ensure that all children with disabilities who are in need of special education and related services, including those attending private schools, are identified, located, and evaluated. 20 U.S.C. §§ 1412(a)(3), (a)(7), 1414(a)-(c); 34 C.F.R. §§ 300.111, 300.301, 300.304-300.306. With respect to children aged 3-4, the child find mandate, requiring proactive identification, location, and evaluation of children with disabilities, is not likely to be discharged unless children in this age range are provided early intervention services, or enrolled in universal preschool, which would allow suspected disabilities among this population to be observed and assessed. The initial evaluation of the child must be conducted within sixty days of receiving parental consent for the evaluation or within the
23

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 24 of 133 Pg ID 24
timeframe that is established by the State. 20 U.S.C. § 1414(a)(1)(C)(i)(I); 34 C.F.R. § 300.301(c)(1). Under Michigan law, the time from receipt of parental consent for an evaluation to the notice of an offer of a free appropriate public education or the determination of ineligibility shall not be more than 30 school days. Mich. Admin. Code R. 340.1721b(1).
52. Defendants must also ensure that an individualized education program (“IEP”) is developed, reviewed, and revised for each child with a disability to enable the child to receive a free appropriate public education. 20 U.S.C. §§ 1412(a)(4), 1414(d); 34 C.F.R. §§ 300.112, 300.320-300.324. The IEP is defined as a written statement which must include, inter alia, a statement of the student’s present levels of academic achievement and functional performance, measurable annual goals, and the special education and related services that will be provided. 20 U.S.C. §1414(d)(1)(A)(i); 34 C.F.R. § 300.320(a). A meeting to develop an IEP must be conducted within 30 days of a determination that the child needs special education and related services. 34 C.F.R. § 300.323(c)(1). The IEP Team consists of a) the parents of the child; b) the child, where appropriate; c) at least one regular education teacher; d) at least one special education teacher, or if appropriate, at least one special education provider; e) a representative of the LEA who is qualified to provide or supervise the provision of specially designed instruction for children with disabilities and is knowledgeable about the general
24

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 25 of 133 Pg ID 25
curriculum and the availability of LEA resources; f) an individual who can interpret the instructional implications of evaluation results, who may already be a member of the team; and g) at the discretion of the parent or agency, other individuals with knowledge or special expertise regarding the child, including related services personnel. 20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.321(a). As soon as possible following the development of the IEP, the SEA and LEAs must ensure that special education and related services are made available to the child in accordance with the IEP. 34 C.F.R. § 300.323(c)(2). Under Michigan law, within seven school days from the date of the IEP team meeting, the public agency shall provide the parent with the notice of the offer of a free appropriate public education, and shall initiate the IEP as soon as possible and not more than 15 school days after the parent’s receipt of the written notice. Mich. Admin. Code R. 340.1721b(3).
53. Defendants must ensure that children with disabilities are afforded the procedural safeguards required by the IDEA when disciplinary action is contemplated. 20 U.S.C. §§ 1412(a)(6)(A), 1415(k); 34 C.F.R. §§ 300.150, 300.500, 300.530-300.536. Pursuant to the IDEA, the SEA must examine data to determine if significant discrepancies exist in the rates of long-term suspensions and expulsions of children with disabilities, either between different LEAs or between disabled and nondisabled students within the same LEA. 20 U.S.C.
25

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 26 of 133 Pg ID 26
§1412(a)(22)(A); 34 C.F.R. § 300.170(a). If such discrepancies exist, the SEA must review and, if appropriate, revise (or require the affected LEA to revise) its policies, procedures and practices relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards, to ensure compliance with the IDEA. 20 U.S.C. § 1412(a)(22)(B); 34 C.F.R. § 300.170(b).
54. Defendant MDE must ensure that each LEA in Michigan, including Defendants FCS and GISD, takes steps to ensure that children with disabilities within its jurisdiction have available to them the variety of educational programs and services available to nondisabled children, including art, music, industrial arts, consumer and homemaking education, and vocational education. 20 U.S.C. §§1412(a)(2), 1413(a)(1); 34 C.F.R. § 300.110. SECTION 504 AND TITLE II REQUIREMENTS
55. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act prohibit public entities such as SEAs and LEAs from discriminating against individuals with disabilities. Pursuant to Section 504 and Title II, public schools are prohibited from excluding students with disabilities from participating in or receiving the benefits of a school’s services, programs, or activities, and such exclusion constitutes disability discrimination. 29 U.S.C. § 794(a); 42 U.S.C. § 12132. Accordingly, each student with a disability must be
26

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 27 of 133 Pg ID 27
provided access to all programs provided to non-disabled students. 29 U.S.C. § 794; 42 U.S.C. § 12132; 34 C.F.R. § 104.21. Furthermore, Section 504 and Title II require that each disabled student be provided reasonable accommodations and modifications designed to provide meaningful access to educational benefits, or as necessary to avoid discrimination on the basis of disability. 34 C.F.R. § 104.12; 34 C.F.R. § 104.44; 28 C.F.R. § 35.130(b)(7).
56. The nearly identical anti-discrimination mandates in Section 504 and Title II apply to qualified individuals with disabilities. 29 U.S.C. § 794(a); 42 U.S.C. § 12132. In the preschool, elementary and secondary education context, the term “qualified individual” refers to
a handicapped person (i) of an age during which nonhandicapped persons are provided [public preschool, elementary, or secondary educational] services (ii) of any age during which it is mandatory under state law to provide such services to handicapped persons, or (iii) to whom a state is required to provide a free appropriate public education under [the IDEA]. 34 C.F.R. § 104.3(l)(2). 57. Section 504 and Title II define “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A); 29 U.S.C. § 705(9)(A). Qualified students with disabilities can demonstrate that their SEA discriminated against them pursuant to the following analysis:
27

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 28 of 133 Pg ID 28
1. The plaintiff-student is disabled, according to the common definition;
2. The plaintiff-student is otherwise qualified to participate in school activities;
3. The SEA receives federal financial assistance; and 4. The plaintiff-student was excluded from participation in, denied
the benefits of, or subject to discrimination at the school. 58. Section 504 also mandates that each child with a disability in Flint receive a free appropriate public education including the provision of regular or special education and related aides and services to meet the needs of the student. 29 U.S.C. § 794; 34 C.F.R. § 104.33. MICHIGAN LAW 59. Under Michigan law, each child with a disability shall be provided with programs and services designed to develop his or her maximum potential. Mich. Comp. Laws § 380.1711(1)(a).
STATEMENT OF FACTS 60. There are approximately 30,000 children16 aged nineteen or under residing in Flint, 5,42617 of whom are students attending FCS schools in grades K-
16 There were 29,711 children between the ages of 0 and 19 residing in Flint during the 2015-16 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/ (last visited October 17, 2016).
28

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 29 of 133 Pg ID 29
12. All of these children have been exposed to elevated lead levels in the drinking water for a period of at least eighteen months beginning in April 2014,18 when
Flint’s water source was changed from Detroit-supplied Lake Huron water to the
Flint River as a temporary cost-saving measure, awaiting a new pipeline to Lake Huron in 2016.19
61. A study conducted in February 2016 by Hurley Medical Center found
that the incidence of elevated blood lead levels in Flint doubled, increasing from
2.4% to 4.9%, after the water source change, and that the neighborhoods with the highest water lead levels experienced a 6.6% increase.20
17 There were 5,426 students attending FCS schools in grades K-12 during the 2015-16 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/. 18 Dominic Adams, Closing the valve on history: Flint cuts water flow from Detroit after nearly 50 years, MLIVE (April 25, 2014), available at http://www.mlive.com/news/flint/index.ssf/2014/04/closing_the_valve_on_history _f.html 19 Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 283 (2016). 20 Id. This retrospective study includes all children younger than five years who had a Blood Lead Level test processed through the Hurley Medical Center’s laboratory, which runs Blood Lead Level tests for most Genesee County children. The pre time period (before the water source change) was January 1, 2013 to September 15, 2013, and the post time period (after the water source change) was January 1, 2015 to September 15, 2015. Id. at 284.
29

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 30 of 133 Pg ID 30
62. Lead is a confirmed potent neurotoxin,21 and childhood lead poisoning
has an impact on many developmental and biological processes, most notably intelligence, behavior, and overall life achievement.22 Numerous studies have
shown the biological and neurological damage linked to cognitive and behavioral impairment, even at low blood lead levels.23
63. Reviews suggest that no level of lead exposure is safe or free from deleterious and irreversible health outcomes.24 They show that even very low levels of exposure in children are associated with learning and behavioral
21 Bruce Lanphear et al., Low-Level Environmental Lead Exposure and Children’s Intellectual Function: An International Pooled Analysis, 113 ENVIRON. HEALTH PERSPECTIVES 894, 894 (2005); Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 283 (2016). 22 Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 283 (2016). 23 Nanhua Zhang et al., Early Childhood Lead Exposure and Academic Achievement: Evidence from Detroit Public Schools, 2008-2010, 103 AM. J. PUB. HEALTH e72, e72 (2013). 24 Id.; Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 288 (2016).
30

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 31 of 133 Pg ID 31
deficits.25 Indeed, low levels of lead exposure have been found to have negatively affected children’s intelligence and academic performance.26
64. For example, early childhood exposure to lead levels below five microliters of lead per deciliter of blood 27 is still adversely associated with academic achievement.28 The preponderance of data also indicates that there are
persistent and deleterious effects of blood lead levels of less than 10 microgram of
lead per deciliter of blood on brain function, including lowered intelligence, behavioral problems, and diminished school performance.29 One study suggests
25 Nanhua Zhang et al., Early Childhood Lead Exposure and Academic Achievement: Evidence from Detroit Public Schools, 2008-2010, 103 AM. J. PUB. HEALTH e72, e72 (2013). 26 Id. 27 This is the CDC’s current blood lead level of concern (also known as a reference level). However, the CDC recognizes that there is no known identified safe blood lead level. Exposure to lead can seriously harm a child’s health. CDC’S Childhood Lead Poisoning Data, Statistics, and Surveillance, available at https://www.cdc.gov/nceh/lead/data/. 28 Nanhua Zhang et al., Early Childhood Lead Exposure and Academic Achievement: Evidence from Detroit Public Schools, 2008-2010, 103 AM. J. PUB. HEALTH e72, e76 (2013). 29 Bruce Lanphear et al., Low-Level Environmental Lead Exposure and Children’s Intellectual Function: An International Pooled Analysis, 113 ENVIRON. HEALTH PERSPECTIVES 894, 894 (2005).
31

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 32 of 133 Pg ID 32
that the higher a student’s BLL in early childhood was, the more likely that the student would perform worse [on standardized] tests.30
65. Elevated blood lead concentration is associated not only with lower IQ scores, but students with elevated blood lead concentrations also are more inattentive, hyperactive, disorganized, aggressive, and more likely to be delinquent.31
66. The CDC states that “[e]xposure to lead can seriously harm a child’s health . . . increasing their risks for damage to the brain and nervous system, slowed growth and development, learning and behavior problems (e.g., reduced IQ, ADHD, juvenile delinquency, and criminal behavior), and hearing and speech problems.”32
30 Nanhua Zhang et al., Early Childhood Lead Exposure and Academic Achievement: Evidence from Detroit Public Schools, 2008-2010, 103 AM. J. PUB. HEALTH e72, e76 (2013). 31 Id. at e72. 32 CDC’S Childhood Lead Poisoning Data, Statistics, and Surveillance, available at https://www.cdc.gov/nceh/lead/data/
32

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 33 of 133 Pg ID 33
67. Lead in drinking water disproportionately affects developmentally vulnerable children. Children can absorb 40% to 50% of an oral dose of watersoluble lead compared with 3% to 10% for adults.33
68. Flint children already suffer from risk factors that innately increase their lead exposure: poor nutrition, concentrated poverty, and older housing stock. With scarce resources for water alternatives, lead in water further exacerbates preexisting risk factors.34
69. Increased lead-poisoning rates therefore have profound implications for the life course potential of an entire cohort of Flint children already suffering from other known toxic stress contributors (e.g., poverty, violence, unemployment, food insecurity).35
70. The Flint Task Force Final Report recognized that the Flint lead crisis is “a chronic toxic exposure of an entire population in a sharply demarcated
33 Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 284 (2016). 34 Mona Hanna-Attisha et al., Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response, 106 AM. J. PUB. HEALTH 283, 286 (2016). 35 Id.
33

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 34 of 133 Pg ID 34
geographic area. Several key aspects point to the long-term health and social
consequences:
a. The manifestations of this toxic exposure depend on where along the life course a person may be. At different ages, critical structures and functions are injured or altered to different degrees. These changes may not manifest in functional derangements for months or years after exposure. The science of epigenetics addresses the interaction between genes and the environment, suggesting that some of these changes can be passed on from one generation to the next.
b. Blood lead levels do not indicate peak lead exposures beyond a 30to 35-day window. The damage from lead toxicity may be done months before the first blood lead level is taken or after the last is drawn, especially for newborns and children younger than 6 years of age. This suggests that the findings related to elevated lead levels measured in Flint children are merely the tip of the iceberg of actual exposure across children living in Flint.
c. Documented risks of learning, behavioral, and cognitive problems are present for all potentially exposed children in Flint. Aggressive and impulsive behaviors that can emerge in adolescence related to lead exposure put children in the crosshairs of the criminal justice system, unemployment and underachievement. . . .
For those serving in Flint’s already distressed schools and mental health agencies, new and unprecedented challenges derive from balancing the need to track children and adults in a toxic exposure registry for preventative and supportive services, while being mindful of the stigma of low expectations for those listed in the registry.”36
36 Flint Task Force – Final Report, March 21, 2016, at 55 (emphasis in original).
34

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 35 of 133 Pg ID 35
71. Every FCS school – not just the Elementary schools – had water samples that tested positive for lead.37
72. On February 10, 2016, FCS Superintendent Bilal Tawwab testified before a committee of legislators on the impact of the lead crisis on special education services and programs, stating that:
While the effects of lead poisoning on our children cannot be fully reversed, there are things we can do to assist our children and provide them full wraparound services. The Flint Community Schools will need additional support in the form of expanded special education resources. We need lead-free facilities for all students so time can be spent on what matters most – teaching and learning. We need resources to measure the intellectual and emotional damage done to each, and possibly every child. This will require complete testing – both medical and intellectual assessment – to understand the magnitude of our issues. We need early intervention programs to provide the educational support so that each student will have the opportunity to lead a productive life, and year-round schooling to deliver these services. We need the resources to attract and retain talented specialists who are trained in
37 Department of Environmental Quality, Fixture Sampling & Plumbing Assessment Results, October 2015-December 2015; Department of Environmental Quality, Outlet Sampling and Plumbing Assessment Recommendations, October 2015-December 2015.
35

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 36 of 133 Pg ID 36
special learning needs. These needs are crucial at [a] time when the district has a looming deficit [of] over ten million dollars.38 73. In January 2016, Superintendent Tawwab explained that special
education is “the piece that keeps [him] up at night.” He added that “[i]t costs almost double to educate a student with special needs.”39 In an interview with
another media outlet, he elaborated that FCS schools “will need more special education teachers, more nurses, and more early childhood programs.”40
74. The population of three- and four-year-old children in Flint has been
exposed to elevated lead levels in the drinking water, which has put them at risk of
developing a disability. They require early screening, timely referrals for
evaluations to identify the existence of a qualifying disability and eligibility for
special education and related services, and early intervention services, including
universal, high-quality preschool education.
38 Testimony of Superintendent Bilal Kareem Tawwab, “The Flint Water Crisis: Lessons for Protecting America’s Children,” House Democratic Steering and Policy Committee (Feb. 10, 2016). 39 Abby Goodnough, Flint Weighs Scope of Harm to Children Caused by Lead in Water, N.Y. TIMES (Jan. 29, 2016), available at http://www.nytimes.com/2016/01/30/us/flint-weighs-scope-of-harm-to-childrencaused-by-lead-in-water.html?_r=0. 40 Lizziz O’Leary and Raghu Manavalan, Flint schools face a long-term lead problem, MARKETPLACE (Jan. 28, 2016), available at http://www.marketplace.org/2016/01/28/world/flint-schools-face-long-term-leadprobem.
36

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 37 of 133 Pg ID 37
75. The 5,426 41 children attending FCS schools in grades K-12 are likewise at risk of developing a disability due to their prolonged exposure to lead.
76. Of the 5,426 students attending FCS schools, 907, or 16.7%,42 are classified with qualifying disabilities and are consequently eligible for special education and related services. Of these 907 special education students, 57 (or 6.3%) have been identified as having Autism Spectrum Disorder (“ASD”), 181 (or 20%) have been identified as having a Cognitive Impairment, 42% (or 4.6%) have been identified as having an Early Childhood Developmental Delay, 48 (or 5.3%) have been identified as having an Emotional Impairment, 15 (or 1.7%) have been identified as having a Hearing Impairment, 14 (or 1.5%) have been identified as having a Physical Impairment, 136 (or 15%) have been identified as having a Specific Learning Disability, 238 (or 26.2%) have been identified as having a Speech and Language Impairment, 162 (or 17.9%) have been identified as having an Other Health Impairment, less than 10 have been identified as having a Visual
41 There were 5,426 students attending FCS schools in grades K-12 during the 2015-16 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/. 42 There were 907 special education students attending FCS schools in grades K-12 during the 2015-16 school year. Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/.
37

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 38 of 133 Pg ID 38
Impairment, fewer than 10 have been identified as having a Traumatic Brain Injury, and fewer than 10 have been identified as having a Severe Multiple Impairment.43
77. These 907 students are not being provided with special education and related services in compliance with their IEPs in the least restrictive environment as required by IDEA.
78. The percentage of students in FCS schools with an IEP aged 6-21 who receive their education inside a regular education classroom for less than 40% of the day has been nearly double the statewide percentage for the last three years for which data is available. In 2014-15, 29.25% of such special education students in FCS were placed in the regular education environment less than 40% of the day as compared to 11.08% statewide. In 2012-13, 28.21% of special education students in FCS received their education in a regular classroom setting less than 40% of the day, contrasted with 11.22% statewide. Finally, in the 2012-13 school year,
43 This data is from the 2015-16 school year. See Special Education Data Portraits: Disability Snapshot for School District of the City of Flint, available at https://www.mischooldata.org/SpecialEducationEarlyOn/DataPortraits/DataPortrai tsDisability.aspx.
38

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 39 of 133 Pg ID 39
25.92% of special education students in FCS were in the general education environment less than 40% of the day, as compared to 11.38% statewide.44
79. Moreover, special education students with qualifying disabilities are subject to unduly harsh disciplinary procedures, which are administered without the procedural safeguards required by IDEA and Michigan law.
80. In 2014-15, 13.59% of special education students in FCS were suspended or expelled for more than ten days – more than five times the statewide suspension/expulsion rate of 2.48%. 45 In addition, FCS had a “significant discrepancy” by race or ethnicity in the rate of suspensions and expulsions of greater than ten cumulative days in a school year for children with an IEP.46
81. FCS’s failure to provide necessary special education and related services in compliance with students’ IEPs in the least restrictive environment, coupled with the disciplinary measures that are administered without procedural safeguards, has resulted in exceedingly poor outcomes for special education students.
44 Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/. 45 Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/. 46 Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/.
39

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 40 of 133 Pg ID 40
82. The percentage of special education students with IEPs who graduated from high school with a regular diploma was 56.67% in 2014-15. Even before the lead crisis, which began in April 2014, the graduation rates for special education were 46.38% in 2013-14 and a staggering 28.40% in 2012-2013.47
83. The dropout rates for special education students in FCS in 2014-15 was 13.11%, as compared to 7.86% statewide. Both prior to, and following, the lead crisis, dropout rates in FCS were nearly double the statewide dropout rates. In the 2013-14 school year, 15.52% of special education students dropped out of high school, as compared to 8.63% statewide. During the previous school year, from 2012-2013, 16.10% of FCS special education students dropped out, whereas only 9.40% dropped out statewide.48
84. The FCS budget is inadequate to provide special education and related services for students with disabilities even at current classification levels. FCS
47 Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/. 48 Michigan Department of Education, Michigan School Data, available at https://www.mischooldata.org/.
40

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 41 of 133 Pg ID 41
currently has a $10 million deficit, and is one of only two school districts with a deficit in Genesee County.49
85. As a result of this deficit, FCS cut 229.95 full-time equivalent staff
members from the 2012-13 school year to the 2013-14 school year, including 14.5
special education teachers, 52.2 general education teachers, and 162.95 other staff.50
86. As of January 2016, FCS only had district nurse for the approximately 5,500 students who attend FCS schools.51 The American Academy of Pediatrics (“AAP”) recommends at least one full-time registered nurse in every school.52
49 FCS Budget and Transparency Reporting, available at http://www.flintschools.org/?DivisionID=11970&ToggleSideNav=ShowAll; see also Lizzie O’Leary and Raghu Manavalan, Flint schools face a long-term lead problem, MARKETPLACE (Jan. 28, 2016), available at http://www.marketplace.org/2016/01/28/world/flint-schools-face-long-term-leadprobem. 50 Genesee Document Center, available at http://www.geneseeisd.org/DocumentCenter/View/3994. The 2013-14 academic year is the last year for which data is available. 51 Lizzie O’Leary and Raghu Manavalan, Flint schools face a long-term lead problem, MARKETPLACE (Jan. 28, 2016), available at http://www.marketplace.org/2016/01/28/world/flint-schools-face-long-term-leadprobem. 52 American Academy of Pediatrics Policy Statement, Press Room (May 23, 2016), available at at https://www.aap.org/en-us/about-the-aap/aap-press-
41

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 42 of 133 Pg ID 42
Recent State appropriations have enabled the district to hire nine nurses, but concerns exist that the ratio will skyrocket again once the appropriation and political will runs out.
87. When Michigan school districts do not have sufficient funding to cover special education expenditures, they are required to divert general funds to cover special education expenditures, a transfer called “cross-subsidization.” With higher percentages of students with disabilities, and with more severe disabilities, low-wealth school districts such as FCS must “cross-subsidize.” 53 In 2014, $8,517,844 was diverted from FCS’s general education fund to pay for special education.54
88. These factors create a disincentive for FCS to identify, locate and evaluate all children with known or suspected disabilities and to provide the special education and related services they need, as required by law.
room/pages/AAP-Policy-Statement-Recommends-Full-Time-Nurse-in-EverySchool.aspx. 53 Michael Conlin & Meg Jalilevand, Equity and Unrestricted Funds in Special Education, EDUCATION FINANCE & POLICY (April 2016), working paper available at https://msu.edu/~conlinmi/aefpresubmissionApril2016final.
54 Id. 42

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 43 of 133 Pg ID 43
89. The injuries of the named Plaintiffs are representative of the class of all individuals who are similarly situated.
NAMED PLAINTIFFS’ INJURIES 90. Summarized below are the violations of federal and state law suffered by the named Plaintiffs as a result of the Defendants’ failure to comply with their legally mandated responsibilities under the IDEA, Section 504, Title II, and Michigan law. These violations illustrate the specific harm suffered by the Plaintiff class as a result of the Defendants’ failure to comply with federal and state law. Plaintiff D.R. 91. Plaintiff D.R. is a twelve-year-old who is a resident of Flint, Genesee County and who is a student in the seventh grade at International Academy of Flint, a charter school. He previously attended Holmes 3-6 STEM Academy, an FCS school, through the 2015-16 academic year. He brings this case through his parent and next friend, Dawn Richardson. 92. D.R. was diagnosed by a private practitioner with ADHD and, in 2012, with ASD in the form of Asperger Syndrome. He has been prescribed Vyvanse for his ADHD and Trazodone for his ASD. D.R. also has asthma and allergies.
43

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 44 of 133 Pg ID 44
93. D.R. has had an IEP in place since the 2011-12 school year when he was in second grade. His IEP at that time was for the qualifying disability of a Speech and Language Impairment.
94. During the 2012-13 school year, when D.R. was in the third grade, his mother disclosed his ASD diagnosis to Holmes 3-6 STEM Academy. At that time, she also advocated that his needs went beyond mere speech and language issues and requested that he be reevaluated for the qualifying disability of autism. Notwithstanding this disclosure and request, the school’s IEP Team found that D.R. was eligible for special education and related services only for the qualifying disability of a Speech and Language Impairment on both March 1, 2013 and February 3, 2014, when the team convened to review and redesign D.R.’s IEP on the basis of an updated reevaluation. D.R.’s known ASD diagnosis was not considered during the reevaluation and IEP review process.
95. In addition to failing to identify and evaluate all of D.R.’s special education and related needs, Holmes 3-6 STEM Academy also failed to properly implement D.R.’s IEPs during this period. For example, his February 3, 2014 IEP provided for speech and language services 1-2 times per month for 20-30 minutes per session. D.R. was provided with five sessions of speech and language services during the eleven-month period between September 23, 2014 and October 26, 2015. Therefore, he did not receive the speech and language services to which he
44

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 45 of 133 Pg ID 45
was entitled. D.R.’s mother received a letter, dated June 17, 2016, from the FCS Director of Student Services and Learning Support Services inquiring about the speech and language services that the school failed to provide over the course of the 2015-16 school year.
96. During this period, D.R. failed to progress academically. He scored in the not proficient range on the MEAP standardized assessments in Language Arts, math, and social studies during the 2014-15 school year when he was in the fifth grade. In the same year, D.R. received all Cs and a D in math. He has specifically identified math as an area of weakness. His IEPs during this period did not delineate goals for reading, mathematics, or writing. They also did not provide for interventions, such as Occupational Therapy, to assist him in these areas.
97. On January 22, 2016, D.R.’s IEP Team was convened again to review and redesign his IEP. At this time, his IEP Team determined that he no longer had the qualifying disability of a Speech and Language Impairment. They instead found him eligible for special education and related services for the qualifying disability of an Other Health Impairment.
98. D.R.’s IEP Team decided to discontinue his eligibility status under the qualifying disability of a Speech and Language Impairment based on reevaluation data that was three years out of date (and on the basis of which they had previously reached the diametrically opposite conclusion that D.R. had a Speech and
45

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 46 of 133 Pg ID 46
Language Impairment). D.R.’s speech and language services were suspended because according to the speech and language therapist at Holmes 3-6 STEM Academy, nothing could be done to improve upon his articulation needs.
99. D.R.’s IEP Team did not consider his known ASD diagnosis, and how it can impact his ability to communicate effectively with others, in the design of his January 22, 2016 IEP.
100. At D.R.’s January 2016 IEP meeting, D.R.’s mother expressed concern that his IEP did not provide services tailored to address his ASD-related needs. His teacher also relayed her belief that D.R. was “on the spectrum” at this meeting. She elaborated that he had sensory issues and that his social interactions were problematic because he could not communicate effectively with his peers and had a hard time reading the facial expressions of others. His teacher also added that D.R. is very rigid and repetitive in his thinking and perseverates on what is said to him by the other students. However, the school’s psychologist responded by stating that “the school was not equipped to deal with autism” and that he did not want “to put that label” on D.R. There was no mention of bringing in an ASD consultant to assist with a reevaluation or in designing D.R.’s IEP.
101. At D.R.’s January 2016 IEP meeting, the IEP Team agreed that D.R. performs better at school when he receives one-on-one support. D.R.’s mother consequently requested that one-on-one paraprofessional support be provided to
46

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 47 of 133 Pg ID 47
enable D.R. to progress academically. However, this request was summarily denied. The school’s psychologist and social worker stated that D.R. would not have one-on-one support in “real life” and therefore should not receive such support in the school setting.
102. Without ASD-related supports, D.R. had difficulty navigating social interactions and was consequently subjected to severe bullying and harassment at Holmes 3-6 STEM Academy. D.R. reports being threatened at school and hit frequently. His teachers indicated that he was often bullied because he did not understand social cues. According to one teacher, D.R. was targeted on a daily – almost hourly – basis because he found social interactions challenging and repeatedly misinterpreted what his peers said to him. When D.R. attended the resource room program every day, the other children in that placement would sometimes take their anger out on him.
103. On four or five occasions, D.R. was bullied in the bathroom at Holmes 3-6 STEM Academy by a large group of 10-12 male students. On these occasions, he was held against the wall, hit, kicked, pushed to the ground, and stomped on. His head was also violently smashed against the hard tile in the bathroom. The behavioral specialist at Holmes 3-6 STEM Academy dismissed these incidents as “horseplay.”
47

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 48 of 133 Pg ID 48
104. D.R. subsequently tried to avoid using the restroom because he was afraid that he might encounter bullying there. He attempted to “hold it” at school. This culminated in adverse physical issues. D.R. said that “it is scary to go to the bathroom because kids will jump you if you tell they are smoking weed in the bathroom.”
105. When teachers witnessed students bullying D.R., they did not intervene. D.R. sometimes documented the bullying, writing about the incidents that he experienced in their immediate aftermath. When he provided such documentation to his teachers at Holmes 3-6 STEM Academy, they failed to take any action in response. On one occasion, D.R. was reprimanded for documenting the bullying to which he was subjected.
106. Although D.R. sought the protection and assistance of adults, one of his teachers appeared to suggest that any intervention would be futile, stating “It [– the bullying –] happens all day long.”
107. D.R. did not feel safe at Holmes 3-6 STEM Academy as a result. He stated that it was not “safe at school. You have to be a bully to survive and it’s not comfortable.” D.R. contemplated joining a gang for protection since the adults at school were unresponsive to his needs.
108. D.R. was often disciplined, secluded from the general education environment, or suspended when he became enmeshed in fights and tried to protect
48

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 49 of 133 Pg ID 49
himself. Holmes 3-6 STEM Academy frequently placed D.R. in a segregated classroom with a behavioral specialist. The behavioral specialist did not help to protect D.R. from the bullies who preyed upon him because the behavioral specialist’s nephew was one of the assailants who targeted D.R. on a daily basis. The behavioral specialist voiced the opinion that D.R. should not graduate from the sixth grade at the end of the 2015-16 school year because he had been segregated and placed in the behavioral specialist’s classroom more than he had been in his general education classroom.
109. Most of D.R.’s referrals to the behavioral specialist’s classroom were undocumented. His mother reports that D.R.’s records indicate that he was only sent to the behavioral specialist’s classroom on one occasion.
110. D.R. was also suspended or sent home from school more than 30 times during the 2015-16 school year. On these occasions, D.R.’s mother was called to pick him up from school so that he could “calm down.” When she picked up D.R. from school, she was not asked to sign him out. As a result, most of his removals and suspensions have not been documented. His school records state that he had only 10 absences and four suspensions during the period from September 9, 2015 through May 17, 2016. His exclusions and suspensions were therefore vastly underreported.
49

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 50 of 133 Pg ID 50
111. As a result of this underreporting, D.R. did not receive a MDR to determine whether his behaviors were disability-related.
112. When D.R. is sent home from school, he is not provided with takehome resources which would allow him to continue to make academic progress and to advance towards achieving his IEP goals.
113. D.R.’s mother requested a behavioral intervention plan (“BIP”) at his January 2016 IEP Meeting. When this request was ignored, she followed up again on May 10, 2016, asking for D.R. to receive a functional behavioral assessment (“FBA”) and BIP. At this time, the school psychologist stated, “can we just put the ASD issue to rest?” FCS’s Director of Student Services and of Learning Support Services added that labeling D.R. as ASD may preclude him from a future career in the military.
114. Holmes 3-6 STEM Academy completed a FBA and BIP for D.R. on June 9, 2016 at the conclusion of the school year. However, it did not provide him with Positive Behavioral Intervention Supports. An IEP Amendment, dated May 16, 2016, also noted that D.R. was “disruptive, moving, acts out in anger, seeks attention, easily distracted, easily frustrated.” However, it did not provide for supports or services to help him with these behaviors.
115. Over a period of at least eighteen months from 2014-15, D.R. was exposed to lead-contaminated water both at school and at home. Holmes 3-6
50

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 51 of 133 Pg ID 51
STEM Academy has tested positive for elevated levels of lead in the water. Water fountains at Holmes were not continuously taped off or decommissioned over the period from April 2014 to October 2015 and bottled water was not made readily available to the students. D.R. also lives in a residential area which is being monitored for high lead levels.
116. D.R.’s disability-related behaviors escalated over this eighteen-month period. Despite his known and prolonged exposure to lead, D.R. was not reevaluated to assess the potentially adverse impact of lead on his academic, behavioral, psychological, and physical needs. Lead was not mentioned at D.R.’s January 2016 IEP meeting even though he had significant learning and behavioral issues at this time and was failing to make academic progress. D.R. also was not provided with routine vision and hearing screenings, even though he was noted to frequently ask for directions and questions to be repeated, which suggests that he might have issues with hearing.
117. D.R. is currently attending International Academy of Flint, a charter school. He has been suspended twice during the current academic year, but his mother has not received any documentation of these suspensions. A police officer was present at the school when D.R.’s mother went to pick him up the second time that he was suspended.
51

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 52 of 133 Pg ID 52
Plaintiff A.K. 118. Plaintiff A.K. is a six-year-old who resides in Flint, Genesee County.
He currently attends Jack P. Haas Elementary, a GISD-run school, where he is completing Kindergarten for the second time. He formerly attended Durant-TuuriMott Elementary School, an FCS school. He brings this case through his parent and next friend, Angy Keelin.
119. A.K. has a visual impairment stemming from Persistent Fetal Vasculature and, as a result, requires the use of a cane and instruction in Braille. He also has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) by an outside provider, Dr. Chheda, a neurologist. His neurologist has additionally classified A.K. as having Autism Spectrum Disorder (“ASD”).
120. He was identified by Early On Michigan as being in need of special education and related services for an Early Childhood Developmental Disability. He thereafter received an IEP.
121. A.K.’s parent enrolled him in a full-time preschool program at Durant-Tuuri-Mott for the 2014-15 school year. During that year, A.K. initially thrived under the attentive care of a mobility and orientation specialist.
122. At Durant-Tuuri-Mott, A.K. was placed in a classroom for students with Early Childhood Developmental Disabilities. The program was offered for five full days per week. At this program, A.K. worked on verbal skills and
52

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 53 of 133 Pg ID 53
mobility and orientation skills. He also was provided Occupational Therapy and Physical Therapy to address his developmental needs.
123. In December 2014, Durant-Tuuri-Mott notified parents that the program was being reduced to 4 half-days per week. This reduction in instruction and services was effected without reconvening A.K.’s IEP team. A.K.’s mother was troubled because due to this reduction, A.K. received less service. She felt that he needed more assistance than was provided, such as what was delineated in his IEP for him to obtain a FAPE during this critical stage of his development.
124. In the 2015-16 school year, GISD took over Durant-Tuuri-Mott’s visual impairment program from FCS. Durant-Tuuri-Mott was consequently left without any certified teacher for students with visual impairments.
125. Instead of losing the foundation allowance to the GISD so that A.K. could continue in the visual impairment program that was now provided under GISD’s auspices, Durant-Tuuri-Mott approached A.K.’s parent with an offer to place A.K. in a classroom for the cognitively impaired, notwithstanding the fact that A.K. had never been diagnosed with a cognitive impairment. A.K. would have been the only kindergartener in this classroom. A.K.’s mother declined this placement because A.K. is not cognitively impaired and because A.K. would not have had access to a certified teacher for the visually impaired. Moreover, A.K.’s mother wanted her son to be placed in a classroom environment that would foster
53

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 54 of 133 Pg ID 54
interaction with non-disabled children his own age, doing typical Kindergarten activities.
126. In light of the deficiencies in essential special education and related services available at Durant-Tuuri-Mott, A.K. was forced to leave the school and to enroll at a GISD-run school that was ten miles away from his home, Jack P. Haas Elementary, which had a program for the Visually Impaired. It took one month for FCS to release A.K. to receive services at GISD. During this one month period, A.K. was not receiving necessary services. He was at home with his mom. A.K.’s mother felt that there was no other option for her son because his community school, Durant-Tuuri-Mott, did not have a teacher certified to teach students with visual impairments, and he would be in a cognitively impaired classroom although he is not cognitively impaired.
127. The transition to Jack P. Haas Elementary was incredibly difficult for A.K. He lost the mobility and orientation specialist to whom he had become attached at Durant-Tuuri-Mott. He also had behavioral outbursts for the first three months that he was enrolled at Jack P. Haas.
128. A.K.’s IEP provided for a one-on-one paraprofessional to monitor and assist him during the day. The IEP team at Jack P. Haas Elementary unilaterally reduced A.K.’s paraprofessional support without the input or consent of A.K.’s mother. There is a two-student-to-one-paraprofessional ratio now.
54

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 55 of 133 Pg ID 55
129. A.K.’s mother worries that his sensory and behavioral needs, which stem from his ASD, are not being addressed by the GISD. He has a hard time sitting still, rocks while standing at times, flaps his hands, and can wander. Due to his sensory needs, he cannot always handle commotion, noise, vibrations, or other stimuli. When he experiences sensory overload, he has meltdowns and outbursts. He also sometimes flops on the floor.
130. A.K.’s mother was not contemporaneously apprised of all of A.K.’s behavioral issues and the behavioral referrals that he received. She reports being told that his team at the GISD-run school considered using a “basket hold” technique to control him, which entailed wrapping their arms around him to hold him still. A.K.’s mother never signed off on the use of such restraint or the behavior plan that was put in place for her son. The MDE’s December 2006 manual on Standards for the Emergency Use of Seclusion and Restraint states that “[p]hysical restraint involves direct physical contact that prevents or significantly restricts a student’s movement. Restraint is a last resort emergency safety intervention.”55 The manual further states that “[i]mplementation of a school-wide
55 Michigan Department of Education, Supporting Student Behavior: Standards for the Emergency Use of Seclusion and Restraint (2006) at 13.
55

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 56 of 133 Pg ID 56
systematic approach will ensure that seclusion and restraint are used only as a last resort method.”56
131. A reevaluation for A.K. was completed by the GISD on June 9, 2016 to determine if he had the qualifying disability of autism. The reevaluation determined that his behaviors were a result of his Visual Impairment and found him ineligible for services based on the qualifying disability of autism, even though A.K.’s mother reports that her son’s neurologist classifies him as having ASD. It is unclear whether the GISD utilized an ASD specialist as a consultant during A.K.’s reevaluation process.
132. A.K. was exposed to lead-contaminated water both at school and at home for a period of at least eighteen months from 2014-15. His school, DurantTuuri-Mott, was found to have high levels of lead in the drinking water. A.K. swam in the pool at Durant-Tuuri-Mott at least once per week during the 2014-15 school year. In addition, the zip code in which A.K. resides was found to have elevated levels of lead in the water.
133. Over the past two years, A.K.’s physical growth has been stunted. He has not gained weight and has remained at 55 pounds. When he saw his eye surgeon, Dr. Kim Drenser at Beaumont Hospital, at the end of 2015, she expressed
56 Id. at 2. 56

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 57 of 133 Pg ID 57
concern about his vision. She reported that he had lost sight over the last two years. There was discussion at his last appointment about whether he is now legally blind.
134. Despite A.K.’s known and prolonged exposure to lead, when his reevaluation was conducted by the GISD, the GISD did not assess the extent to which his lead exposure had adversely impacted his physical, psychological, behavioral, and academic needs. Furthermore, although A.K. had a previously diagnosed visual impairment, his reevaluation also did not include routine vision and hearing screenings. Plaintiff C.D.M.
135. Plaintiff C.D.M. is an 8-year-old African-American student in the third grade at Pierce Elementary School, an FCS school, who resides in Flint, Genesee County. Prior to the 2016-17 school year, he attended Brownell K-2 STEM Academy, another FCS school. He brings this case through his parent and next friend, Crystal McCadden.
136. C.D.M. has an IEP which provides for special education and related services to address his Other Health Impairment, which stems from the underlying chronic health problem of ADHD. He also had a behavioral intervention plan (“BIP”) in place to address his disability-related behaviors.
57

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 58 of 133 Pg ID 58
137. Plaintiff C.D.M. was exposed to lead-contaminated water for a period of at least eighteen months from 2014-15. Elevated levels of lead were found in the drinking water at Brownell K-2 STEM Academy, where he was enrolled as a student through the end of the 2015-16 school year. He also resides in a zip code which is being monitored for high lead levels in the water supply.
138. Over the eighteen-month period that he drank lead-contaminated water, C.D.M.’s physical growth was stunted. He did not grow or put on any weight.
139. C.D.M.’s disability-related behaviors also escalated over the period of at least eighteen months during which he was drinking lead-contaminated water. C.D.M.’s mother received multiple phone calls from Brownell K-2 STEM Academy over this period notifying her that C.D.M. would not do his work or sit down in class and that he was kicking and calling names.
140. After misbehaving during an after-school program on October 12, 2015, C.D.M. was handcuffed for nearly an hour by a Flint Police Department school resource officer. The use of handcuffs was inconsistent with C.D.M.’s BIP.
141. The school resource officer was never informed by Brownell K-2 STEM Academy that C.D.M. was a child with a disability who had a BIP.
142. By resorting to the use of physical restraints such as handcuffs, the school resource officer inflicted severe emotional trauma upon C.D.M. For nearly
58

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 59 of 133 Pg ID 59
an hour, C.D.M. was publicly humiliated in front of his peers. Since this incident, C.D.M. has suffered from crippling fear and anxiety, which has exacerbated his ADHD. Being physically restrained in public also negatively shaped C.D.M.’s self-image; he now perceives himself as a “bad kid.”
143. Subsequent to the incident in which he was handcuffed, C.D.M. was regularly excluded from his educational placement. C.D.M.’s teacher sent him home from school on a near-daily basis due to his disability-related behaviors. Many of these removals were undocumented.
144. When C.D.M. was not sent home from school, he was placed in a classroom at Brownell K-2 STEM Academy that lacked proper supervision with twelve other boys. C.D.M. was frequently hit, kicked, and pushed down by the other boys in the classroom. Chairs also were thrown regularly. On some occasions, C.D.M. would act out and kick others in order to fight back.
145. On multiple occasions, due to the lack of supervision, C.D.M. walked out of his classroom and got lost. Staff members at Brownell K-2 STEM Academy were unaware of his whereabouts. C.D.M.’s mother feared for his safety at school.
146. Brownell K-2 STEM Academy failed to reevaluate C.D.M. to assess the potentially detrimental effects that lead exposure may have had on his physical, psychological, behavioral, and academic development. He also was not provided with routine hearing or vision screenings.
59

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 60 of 133 Pg ID 60
147. C.D.M.’s IEP has not been revised despite overwhelming evidence that it is not fully meeting his needs or addressing his disability-related behavioral issues. C.D.M.’s BIP likewise has not been reviewed or updated.
148. Although he was removed from school frequently after the October 12, 2015 incident in which he was placed in handcuffs, and missed over 10 days of school as a result, C.D.M. did not receive a Manifestation Determination Review (“MDR”) to examine whether his behaviors are traceable to his disability.
149. Even though a number of C.D.M.’s absences are due to suspensions or removals by the school, C.D.M.’s mother received a letter from FCS stating that C.D.M. had missed at least 10-15 consecutive days of school and that this would be reported to a truancy officer. The letter also indicated that Child Protection Services and the Department of Health and Human Safety may be contacted.
150. During the 2016-17 school year, a unilateral decision was made by FCS’s Director of Student Services and of Learning Support Services to move C.D.M. to a placement in a full-time classroom for students with Emotional Impairments at Pierce Elementary School. C.D.M.’s IEP Team was not convened to make this decision. C.D.M.’s mother also was not consulted. She thought that her son would attend Holmes 3-6 STEM Academy and that he would be placed in the general education environment for at least half of the school day.
60

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 61 of 133 Pg ID 61
151. C.D.M.’s mother is called at least three times per week to pick up C.D.M. from Pierce Elementary School even though he has been placed in a more restrictive setting there.
152. On September 27, 2016, C.D.M. was suspended by the principal at Pierce Elementary School.
153. At a meeting on September 28, 2016, a BIP could not be located. C.D.M.’s mother was told that her son was throwing chairs, walking on tables, and taking his shoes off.
154. C.D.M. has not received a FBA to account for his increased behavioral needs after the October 12, 2015 incident in which he was handcuffed.
155. C.D.M.’s mother will not pursue placement in a charter school because she was told by a charter school principal in Flint that her son would receive better services for his disability through FCS. Plaintiff C.M.
156. Plaintiff C.M. is twelve-year-old who resides in Flint, Genesee County and who was a seventh grade student at the charter school New Standard Academy during the 2015-16 school year. She is now enrolled in Hamady Middle School, which is part of the Westwood Heights School District, located in Northern Flint. She is the older sister of C.D.M. and brings this case through her parent and next friend, Crystal McCadden.
61

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 62 of 133 Pg ID 62
157. At the request of her mother, Plaintiff C.M. received an evaluation in April 2009 and was found eligible for special education and related services for a Speech and Language Impairment. She was subsequently provided with an IEP. C.M. was not provided with a full and comprehensive initial evaluation, assessing all of her cognitive, learning, and behavioral needs.
158. C.M. transferred to New Standard Academy in September 2009 and was reevaluated one year later, in September 2010. In October 2011, C.M.’s mother reported to her IEP Team that C.M. continued to struggle with reading, spelling, and word endings. At this time, her Northwest Evaluation Association (“NWEA”) scores in Math, Reading, and Language fell to the one percentile mark.
159. C.M.’s IEP goals were listed as decoding words, multiple meanings, and vocabulary. Positive Behavioral Intervention Supports were considered for her increased behavioral needs and she was given access to a behavioral intervention specialist for behaviors which included fighting, hitting a student with a pencil box, and off-task behavior. However, no FBA or BIP was provided.
160. Despite her IEP, C.M. has not been provided with the speech and language services that she required. Her IEP indicated that she should receive speech and language services 4-8 times per month for periods of 20-30 minutes with elementary resource support for 45-60 minutes 4-5 times per week. A letter in her file dated October 4, 2011 states that speech and language services were not
62

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 63 of 133 Pg ID 63
available and that the hours of services that she missed would be made up. However, C.M.’s 2011-12 report card showed that her areas of need remained decoding meaning, vocabulary, writing sentences, and articulation. This indicates that she did not make progress in meeting her IEP goals.
161. In 2013, C.M.’s mother expressed concerns about her daughter’s lack of academic achievement. Despite these concerns, C.M.’s mother was informed that C.M. would no longer receive resource room support or in-classroom support for basic reading or vocabulary deficits as there was no evaluation indicating that C.M. had a learning disability in Broad Reading or Comprehension.
162. In the 2013-14 school year, C.M. received C-level grades in every subject (English Language Arts, Social Studies, Math, and Science). Her academic performance caused C.M.’s mother to continue to raise questions about her academic progress. In the 2014-15 school year, C.M.’s grades fell further in light of the lack of necessary instructional support. She received a D in English Language Arts, a C- in Social Studies, a D+ in Math, and an E (59% or below) in Science.
163. In September 2015, C.M.’s IEP noted two hospitalizations for migraine headaches. Concerns about focus and impulsiveness were also noted but not accommodated. C.M. was described as having a moderate language deficit in the areas of comprehension and expression as well as difficulty relaying thoughts
63

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 64 of 133 Pg ID 64
and communicating in writing. The IEP noted that this had a “significant impact on [her] academic progress, including: difficulty with complex academic discourse, difficulty attaching meaning to what is heard or read, and oral and written language difficulty.” Despite these noted learning difficulties, C.M. was only provided with speech services for 20-30 minutes 3-6 times per month as well as social work consultation. Her grades continued to suffer, indicating that her instructional needs were not being met. In the 2015-16 school year, C.M. received an E in English Language Arts, a D- in Social Studies, a C in Math, and an E in Science.
164. In March 2016, C.M.’s mother informed New Standard Academy that C.M. needed additional support in the areas of reading and mathematics. The school denied her reading support and did not provide a reading evaluation, despite her NWEA scores at the one percentile mark. She was not provided with special education services since she was in the general education classroom, even though no meeting was held or documentation provided to formally decertify her from special education. Her grades were getting worse.
165. C.M. was exposed to lead-contaminated drinking water in Flint for a period of at least eighteen months. Despite her known and prolonged exposure to lead, and the difficulty that she has remembering what she has learned, she has not been evaluated to assess the potentially adverse impact of her lead exposure on her learning, psychological, behavioral, and physical needs. There also is no record
64

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 65 of 133 Pg ID 65
that she ever received routine vision or hearing screenings. She did not receive a complete initial evaluation to assess the full spectrum of her needs. Additionally, a complete reevaluation of her needs was not conducted before the decision was made to remove C.M.’s resource room support and other specialized instruction. Plaintiff J.T.
166. Plaintiff J.T. is a seven-year-old who resides in Flint, Genesee County and who is a student in the second grade at Brownell K-2 STEM Academy, an FCS school. Previously, he was a student at the International Academy of Flint, a charter school, through the 2015-16 school year. J.T. brings this case through his parent and next friend, Nakiya Wakes.
167. J.T. has been diagnosed with ADHD by his pediatrician. 168. J.T. resides in a zip code which is being monitored due to high lead levels in the water supply. J.T.’s condition worsened over the eighteen-month period from 2014-15 that he drank the lead-contaminated water in Flint. During the 2014-15 school year, he was sent home from school only once. During the 2015-16 school year, his disability-related behaviors escalated dramatically. He was suspended more than thirty times and had over 70 absences from school. In addition, he received 56 student infractions during the four-month period between September 2015 and January 2016.
65

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 66 of 133 Pg ID 66
169. When J.T.’s disruptive behavior became more pronounced in the 2015-16 school year, J.T.’s mother procured a lead screening for J.T. from an outside provider, the Genesee County Health Department. J.T. tested positive for lead.
170. J.T.’s pediatrician recommended that J.T. be evaluated for special education and related services because his ADHD, coupled with his lead exposure, increasingly manifested in unruly behavior.
171. In December 2015, J.T.’s mother disclosed his ADHD diagnosis and his positive lead test to International Academy of Flint. As J.T.’s pediatrician suggested, J.T.’s mother also made an oral request for the school to evaluate J.T. for special education and related services.
172. International Academy of Flint rebuffed the request for an initial evaluation, claiming that it was unnecessary because the school already provided a Response to Intervention (“RTI”) program for all students. LEAs are not permitted to deny or defer evaluations because they offer RTI. RTI is not a substitute for the special education and related services to which students with qualifying disabilities are entitled. Moreover, even though J.T. struggles with reading, he was not provided with any RTI or Multi-tier System of Supports in this area. Due to his numerous absences and suspensions, the school also could not properly gauge whether its RTI program was effective for J.T.
66

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 67 of 133 Pg ID 67
173. Approximately two months after her oral request for an evaluation, J.T.’s mother submitted a written request for J.T. to be evaluated at the prompting of J.T.’s therapist. In the letter, dated February 3, 2016, she stated that J.T.’s therapist believed that he needed to be evaluated “immediately.” By the time that JT’s mother made this written request, J.T. had been subject to disciplinary action for disability-related behaviors more than fifty times.
174. International Academy of Flint responded to the written request submitted by J.T.’s mother by contracting a psychologist in private practice in Flint, Dr. Maxwell Taylor, to evaluate J.T. Dr. Taylor described J.T. as “basically a non-reader.” The evaluation recommended that J.T. be referred to a Multidisciplinary Evaluation Team (“MET”) for further evaluation and eligibility consideration. Despite J.T.’s positive lead test, the evaluation did not assess the potentially deleterious impact of lead on his behavioral, learning, psychological, and physical needs. He also was not provided with a vision or hearing screening.
175. On March 28, 2016, J.T. received an IEP, three months after his mother’s initial request for an evaluation. The school’s IEP Team found that J.T.’s ADHD had a “severe impact on alertness, time on-task, concentration, distractedness, the ability to follow directions or rules, and impulsivity.” While the IEP noted J.T.’s lead exposure, the team made no comment about how it may be impacting his learning, attention, or behavior.
67

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 68 of 133 Pg ID 68
176. By the end of March when his IEP was put in place, J.T. had already been suspended from school at least seventeen times. Despite the fact that J.T.’s challenges at school largely emanated from disability-related behaviors, his IEP did not include a FBA or BIP.
177. As a result, even after the implementation of J.T.’s IEP, International Academy of Flint continued to address J.T.’s behavioral issues by suspending him and excluding him from the classroom environment. J.T. was suspended on March 29, 2016, the day after he received his IEP. He was thereafter suspended twelve additional times. Four of J.T.’s more than thirty total suspensions during the 201516 school year were due to his acting out by hitting and kicking. The majority of incidents leading to suspension, however, were for less serious behaviors, such as acting disrespectfully and throwing objects. Despite the fact that J.T. was suspended over 30 times during the 2015-16 school year, and over 12 times since his IEP was put in place on March 28, 2016, no MDR is on file.
178. On April 26, 2016, J.T. received an FBA and BIP, which were revised on May 19, 2016. J.T.’s FBA revealed that his behavioral issues stem from a desire to escape his school work when he does not understand. Thus, his disability-related behaviors are reinforced – not redressed – when he is disciplined by being suspended or removed from the classroom environment. When J.T. becomes frustrated, his frustration escalates into verbal behavior and then verbal
68

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 69 of 133 Pg ID 69
behavior escalates into physical behavior and he receives a suspension despite his IEP team identifying the problem as pertaining to the loss of instruction due to absences and his desire to escape from the situation.
179. J.T.’s FBA and BIP failed to result in effective behavioral and disciplinary interventions that would not lead to J.T.’s exclusion from the learning environment. Even after J.T. received a BIP, International Academy of Flint continued to remove him from the classroom environment and to mete out suspensions and disciplinary infractions as punishments.
180. J.T.’s March 28, 2016 IEP recognizes that J.T.’s “diagnosis of ADHD negatively impacts him in the school setting. He can be disruptive in the academic setting which may lead to missed instruction. His behavior may result in removal from the classroom which also leads to missed instruction.” His “negative behavior has been escalating throughout the school year” and “continues to lead to time in the . . . office and out of school suspensions, which has been impacting his academic success and ability [to] maintain relationships with teachers and peers.”
181. However, prior to his IEP date, there is no evidence that shows that a positive behavior support plan was in place. There is also no reference to pre-IEP positive behavior interventions used or J.T.’s response to those interventions. Staff responses to his behavior consisted of telling him to “stop,” sending him out of
69

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 70 of 133 Pg ID 70
class, giving him a warning, writing out a disciplinary referral, and suspending him when he could not de-escalate.
182. Although J.T. had more than 70 absences and more than 30 suspensions during the 2015-16 school year, his IEP Team determined that there was not a lack of appropriate instruction in reading. J.T.’s IEP, overall, showed no link between his needs and the services provided. He needed academic support, instruction in reading, and to be taught routines. However, services were not provided to assist J.T. in these areas.
183. In addition, despite finding that J.T. was eligible for an IEP, his IEP team checked that “Supplementary aids and services are not needed at this time” for advancing toward goals; increasing exposure to, and making academic progress in, the general education curriculum; and being educated alongside, and participating in activities with, all students.
184. J.T.’s second IEP, dated May 19, 2016, removed him from the general education environment altogether and placed him in a contained special education resource room. The IEP Team considered a statement made in December 2015 by J.T.’s teacher, remarking that J.T.’s “behavior and lack of self-control is not appropriate for my classroom.” His May 2016 IEP states that J.T. “will be in the resource room for all hours of the school day.” His IEP team chose to place him in a special education resource room 100% of the time without first providing
70

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 71 of 133 Pg ID 71
supplemental aids and services that would enable him to be educated in the least restrictive environment.
185. J.T. is currently enrolled at Brownell K-2 STEM Academy, an FCS school, where he is placed in a self-contained special education classroom.
186. J.T.’s mother is called at least once a week to pick J.T. up from school because he is acting out. When she has come to the school, she has witnessed her son being hit by another student. On one occasion, she was hit by a student at Brownell K-2 STEM Academy when she was picking up J.T.
187. The school setting is causing J.T.’s behaviors to escalate and he is unable to learn. At Brownell K-2 STEM Academy, as at International Academy of Flint, J.T. has not been provided with effective reading instruction and behavioral interventions in the least restrictive setting.
188. Given the failure of both International Academy of Flint and Brownell K-2 STEM Academy to meet J.T.’s learning and behavioral needs, J.T.’s selfconfidence has withered. He has stated, “I can’t read. I am not good at reading” and “I don’t know how to read. I am a bad kid. I hit and kick people at school.” Before he enrolled at Brownell K-2 STEM Academy, he described International Academy of Flint in stark terms, saying “They are a bad school. They don’t teach me stuff.” He added, “I have no favorite teachers at school.”
71

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 72 of 133 Pg ID 72
Plaintiff N.S. 189. Plaintiff N.S. is a seventeen-year-old who resided in Flint, Genesee
County and who attended Northwestern High School, an FCS school, through the 2015-16 academic year. She is the older sister of Plaintiff J.T. and brings this case through her parent and next friend, Nakiya Wakes.
190. N.S. has been diagnosed with epilepsy, a condition which causes her to suffer from seizures.
191. Before moving to Flint, N.S. qualified for special education and related services for her disability when her family resided in Battle Creek, Michigan. Her IEP at Battle Creek enabled her to receive some supports while simultaneously allowing her to remain assimilated in the general education environment alongside peers her own age.
192. After moving to Flint, N.S.’s mother attempted to enroll her at International Academy of Flint. She was given an academic entrance examination and based on the score, International Academy offered to place N.S. in a fifth grade classroom with other fifth grade students. N.S. was sixteen at the time and expected to enter the tenth grade. International Academy refused to provide a copy of the academic entrance evaluation that it administered to N.S.’s mother and did not offer an evaluation to assess what N.S.’s needs were so that they could be accommodated through an IEP to enable her to be with her same-age peers.
72

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 73 of 133 Pg ID 73
193. N.S. declined to enroll at International Academy because she wanted to be among her peers. She felt that she would be stigmatized as a sixteen-year-old in a classroom environment with students who were six years younger than her.
194. After being effectively denied an appropriate placement at International Academy for a student of her age, N.S. enrolled in the tenth grade at Flint Southwestern Academy, an FCS school. Southwestern did not reevaluate N.S. to determine her special education needs. Her mother was not invited to an IEP meeting to review her IEP and discuss any placement.
195. In light of the fact that she had been previously identified as a student with a disability in Battle Creek, Southwestern segregated N.S. from the general education population and placed her in a special education classroom. N.S. was relentlessly teased by other students for being in such a placement. Although she was in need of academic supports and accommodations for her disability, N.S. wanted to be placed in the least restrictive learning environment and incorporated into the general education curriculum.
196. Dissatisfied with her segregated placement as a special education student at Southwestern, N.S. transferred to Northwestern High School, another FCS school, as an eleventh grade student at the beginning of the 2015-16 school year.
73

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 74 of 133 Pg ID 74
197. When N.S. transferred to Northwestern High School at the beginning of the 2015-16 school year, Northwestern did not take steps to reevaluate her, even though she had been identified as a student with a disability in a previous school district, where she had received an IEP.
198. She developed rashes and her hair would fall out in chunks. Her selfesteem was adversely impacted.
199. Northwestern neglected to review and revise N.S.’s IEP from Battle Creek. It also failed to provide her with special education and related services in accordance with the requirements of her pre-existing IEP.
200. Over a period of at least eighteen months from 2014-15, N.S. was exposed to lead-contaminated drinking water at home and at school. Northwestern High School and the residential area in which she lives were found to have high levels of lead in their respective water supplies. Her epileptic seizures became more severe and frequent over this timeframe.
201. In light of her worsening condition, N.S.’s mother procured a lead test from an outside provider for her during the 2015-16 school year. N.S. tested positive for lead.
202. Despite her positive lead test, Northwestern did not conduct a reevaluation to examine the adverse impact of lead on her behavioral, learning,
74

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 75 of 133 Pg ID 75
psychological, and physical needs. N.S. also was not provided with a routine vision or hearing screening.
203. Prior to the commencement of the 2016-17 school year, N.S. was sent by her mother to live with family in Indiana on a temporary basis. The chaotic environment at Northwestern High School, the trauma caused by the lead contamination in Flint, and Northwestern’s failure to identify and accommodate N.S.’s needs caused her mother to send her out of state to live with her relatives.
204. N.S.’s mother would like her daughter to return to Flint, but she is concerned that N.S. would continue to fall further behind academically within the FCS district.
205. N.S.’s mother is attempting to have N.S. reevaluated in her out-ofstate school district in the hope that her out-of-state IEP will be implemented by the FCS district when N.S. returns and that the services provided will enable N.S. to graduate from high school. Plaintiff J.W.
206. Plaintiff J.W. is a fourteen-year-old who is currently in a juvenile detention facility. He was repeating the sixth grade for the third time at Holmes 36 STEM Academy, an FCS school, when he was expelled from all FCS schools during the 2015-16 school year. He formerly attended Doyle/Ryder Elementary School, an FCS school, Northridge Academy, a charter school, and Durant-Tuuri-
75

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 76 of 133 Pg ID 76
Mott Elementary School, an FCS school, for four years. Plaintiff J.W. resides in Flint, Genesee County and brings this case through his parent and next friend, Kathy Wright.
207. J.W. has been diagnosed with ADHD and bipolar disorder by an outside provider of mental health services, Consumer Services, Inc. He also has asthma and struggles with vision problems. He needed his glasses to see the board at school.
208. Despite his diagnosed conditions, J.W. has not received any special education or related services at school.
209. J.W. has been subjected to numerous suspensions and disciplinary measures throughout his career at FCS schools, which have had the effect of removing him from the general education environment. His history of suspensions started when he was in the second and third grade at Doyle/Ryder Elementary School. This pattern continued into fourth through sixth grades, with J.W. receiving multiples suspensions and expulsions in those years. As a result, J.W. has repeated the sixth grade three times.
210. During the 2014-15 school year, when he was in sixth grade for the second time, J.W. was suspended or expelled from Holmes 3-6 STEM Academy for the majority of the school year, beginning in November 2014.
76

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 77 of 133 Pg ID 77
211. He returned to Holmes 3-6 STEM Academy in September 2015 to commence sixth grade for a third time. However, he was only in school for approximately one month before being suspended again. The principal contacted J.W.’s mother in October 2015 after J.W.’s disability-related behavioral issues started to manifest. J.W.’s mother disclosed that J.W. was diagnosed with ADHD and bipolar disorder. However, no evaluation was conducted to determine whether J.W. was eligible for special education and related services.
212. During the 2015-16 school year, J.W. had 51 unexcused absences and was suspended from school for 50 days. He was suspended from Holmes 3-6 STEM Academy for an incident which occurred on April 25, 2016 and permanently expelled from all FCS schools on June 15, 2016.
213. When J.W. was not removed from school, he experienced severe bullying. He constantly feared for his safety at school and his mother expressed concern about the other students hitting him every day that he was on school premises. She told him to yell, “Leave me alone” and to go to the office when the bullying started. When J.W. did what his mother instructed, he was marked down for skipping class.
214. J.W. states that it was “not safe at school. People egg you on and taunt you.” There was “a lot of fighting in the bathrooms at school.” He says that he wanted to “be in a school that is a white school, without so much fighting.”
77

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 78 of 133 Pg ID 78
J.W.’s mother states that on one occasion, “He was hit everywhere – on the side, back, across the head.”
215. His mother reports that J.W.’s teachers were aware of the bullying. Not only did they fail to intervene, but they also threatened J.W. and engaged in bullying tactics that targeted him. At times, his teachers yelled at him and threw away his school work. A teacher once put a used Kleenex on J.W.’s paper and told him to “throw it away or I will kick you out.” The punishment that J.W. dreaded most at school was being made to stand in front of all of the sixth graders while one of his teachers publicly broadcast how he had misbehaved.
216. The April 25, 2016 incident that ultimately resulted in J.W.’s permanent expulsion from all FCS schools one June 15, 2016 was traceable to the unsafe environment at school, the bullying that J.W. experienced there, and his inability to cope given his disability-related issues. On April 25, 2016, J.W. thought that he “was going to be jumped by three guys because people were saying they were bringing weapons to school and [that he] should, too.” He also received threats via text message and social media. J.W. reported that he “brought a knife [to school] to protect himself and got kicked out for the [rest of the] year” even though he never brandished his knife or threatened anyone with it.
217. Before being placed in a juvenile detention facility, J.W. met with a counselor at Consumer Services, Inc. He struggles with trauma from the death of
78

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 79 of 133 Pg ID 79
his father and the absence of his brother who is incarcerated. He also is afraid to lose his mother, who has been in and out of the hospital since the water crisis in Flint. As a result of these major life stresses, as well as the bullying and disciplinary measures to which he was subjected at school without being provided with necessary academic or behavioral supports, J.W.’s mother believes that his mental health issues have worsened.
218. J.W.’s mother made multiple verbal requests for evaluations over the course of J.W.’s academic career that were rebuffed because J.W. was “too bright” and could do the work if he chose to do so.
219. J.W. was evaluated and found not to be eligible for special education and related services in February 2012. J.W.’s mother continued to request that the school provide supports and services for her son, but her requests were denied.
220. J.W.’s mother submitted a written request for an evaluation to Holmes 3-6 STEM Academy on April 15, 2016, noting that J.W. struggles with his school work, has difficulty understanding spoken directions, is not performing at his grade level, and has been exposed to lead both at home and at school. Her letter to the school stated that she believed J.W. “may have an unidentified disability.” The written request for a special education evaluation was marked received by the school secretary on April 18, 2016.
79

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 80 of 133 Pg ID 80
221. On April 25, 2016, J.W. was suspended from Holmes 3-6 STEM Academy and permanent expulsion from all FCS schools was recommended. A letter dated May 9, 2016 informed J.W.’s mother that the Superintendent of FCS had reviewed and upheld the expulsion recommendation.
222. A review of existing evaluation data (“REED”) was completed in May 2016. The purpose of this review is to decide if the existing evaluation data on the child is sufficient to establish the child’s eligibility for special education services and to determine the child’s educational needs, or if additional information is necessary. The outcome of the REED was a determination that additional data was necessary to assess J.W.’s eligibility status and needs. The existing data on J.W. that was reviewed did not include up-to-date classroom-based observations, observations by teachers or local service providers, or local or state assessments. The REED found that a cognitive assessment, achievement assessment, and speech and language assessment should be performed on J.W. The REED did not find that behavioral, social, or emotional assessments were necessary. The special education teacher whose name appeared on the REED form indicated that she was not involved in the REED.
223. An expedited evaluation of J.W. was not conducted, even though J.W.’s mother had submitted a written request for an evaluation prior to the April
80

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 81 of 133 Pg ID 81
26, 2016 incident which resulted in his suspension from school and eventual expulsion from all FCS schools.
224. As of June 15, 2016, J.W. was suspended from all Flint Community Schools.
225. On July 13, 2016, Michigan Protection and Advocacy Services (“MPAS”) filed a complaint with the MDE on behalf of J.W. MDE found that FCS was not in compliance with its obligations under IDEA and its implementing regulations.
226. FCS subsequently performed an evaluation of J.W. and convened an IEP team to determine his eligibility for special education and related services. On July 25, 2016, he was evaluated for the suspected disabilities of a Specific Learning Disability, an Emotional Impairment, a Speech and Language Impairment, and an Other Health Impairment. However, these evaluations were not comprehensive.
227. The evaluation for a Specific Learning Disability did not include current observations of J.W. and did not consider teacher input.
228. The evaluation for an Emotional Impairment did not include systematic observation of the behaviors of primary concern. The evaluation team noted that “no known intervention strategies” had been in place for J.W. despite his academic need, permanent expulsion from school, treatment by a psychiatrist, and
81

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 82 of 133 Pg ID 82
behavioral records. The team did not consider the negative impact of his numerous suspensions and the length of his expulsion on his ability to progress academically. The evaluation also did not mention any consideration of positive behavioral supports or recommendations for instructional or behavioral interventions.
229. The evaluation team for an Other Health Impairment did not include a physician. However, the evaluation refers to a medical release signed by J.W.’s mother on July 14, 2016. The evaluation also did not consider J.W.’s prior evaluation data or medical conditions. Although the school was aware that J.W. had been prescribed Vyvanse for ADHD and Seroquel for bipolar disorder, no attempt was made to solicit input from J.W.’s treating psychologist, Dr. Warner, during the evaluation process. FCS shifted the burden to J.W.’s parent to provide the evaluation team with salient medical information.
230. At a July 28, 2016 IEP meeting, the IEP Team found that all four evaluations showed that J.W. was ineligible for special education services. The evaluation team noted that no systematic observations had been completed in any of the suspected areas of disability. There is no evidence in the evaluation team report that the team reviewed J.W.’s attendance, behavior, disciplinary, suspension, or health records. The evaluation report also did not include teacher interviews. The parent input that was assessed was dated February 9, 2012.
82

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 83 of 133 Pg ID 83
231. Despite J.W.’s known and prolonged exposure to lead over the period from at least 2014-15 at Holmes 3-6 STEM Academy and at home, where elevated lead levels were found in the respective water supplies, J.W.’s evaluations did not consider this exposure or assess the potentially adverse impact of lead on his academic, behavioral, psychological, and physical needs.
232. Despite J.W.’s known difficulties with his vision, he did not receive routine vision and hearing screenings during the evaluation process.
233. Pursuant to the MDE corrective action plan, another IEP Meeting was to be held on September 19, 2016.
234. Although J.W. has been suspended and expelled on a consistent basis, he has never received an MDR to determine if his disabilities are manifesting in behavior that causes him to be excluded from the school.
235. J.W. remains in a juvenile detention facility as of October 13, 2016. Plaintiff C.D.
236. Plaintiff C.D. is a 16-year-old resident of Flint, Genesee County who was a tenth grade student at Northwestern High School, an FCS school, until February 2016 when he was expelled. He brings this case through his parent and next friend, Twanda Davis.
83

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 84 of 133 Pg ID 84
237. He has been diagnosed with bipolar disorder by Genesee County Community Mental Health. He also has vision and hearing issues. Due to his nearsightedness, he needs to wear glasses with a strong prescription.
238. C.D. was evaluated for a Speech and Language Impairment and was determined to be eligible for special education and related services. He has an IEP in place, but his IEP has not been updated or revised in the past two years. After his exclusion from school, he has not received any services.
239. C.D. drank the lead-contaminated water in Flint for a period of at least eighteen months from 2014-15. He was exposed to such water both at his school, which has tested positive for elevated lead levels, and at home, where the water supply is being monitored for high lead levels. He reports that during the lead crisis in Flint, staff members at Northwestern High School sold bottled water to the students. Those who could not afford to pay for bottled water continued to drink the water from the fountains at school, which were not decommissioned or taped off.
240. C.D. reports that his memory has suffered since he drank the leadcontaminated water. He has difficulty recalling his multiplication tables, which he once had memorized. He also frequently complains that his bones hurt, particularly in his legs.
84

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 85 of 133 Pg ID 85
241. Despite his known and prolonged exposure to lead, he has not received an evaluation to assess the potentially adverse impact of his lead exposure on his learning, psychological, behavioral, and physical needs. He also has not been provided with routine vision or hearing screenings even though he has vision and hearing issues.
242. C.D. is not receiving the services that are required under his outdated IEP. As a result, he continues to struggle in the areas of reading, writing, and math.
243. Instead of providing the services delineated in his IEP, Northwestern High School placed C.D. in a self-contained classroom for the cognitively impaired, even though C.D. qualified for special education for his Speech and Language Impairment—not a cognitive impairment. The students in this classroom were often disruptive, interrupting class and making it impossible to hear what was being taught. When C.D. raised his hand to ask for assistance, he was told to wait his turn, but does not recall receiving individualized attention.
244. Within the self-contained environment in which he was placed, C.D. was assaulted daily and ridiculed by his peers. Students have even picked up C.D.’s desk and have thrown it. When C.D. asked if he could move closer to the front of the classroom so that he could see the board and escape the students who were preying on him, the teacher denied his request.
85

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 86 of 133 Pg ID 86
245. C.D. has also been subjected to a larger pattern of severe bullying and harassment at Northwestern High School outside of his self-contained classroom, as well as within it. C.D. believes that he is targeted because he stutters. He has been hit, kicked, stomped, verbally taunted, and has had his head slammed against the floor numerous times.
246. On one occasion, the bullying by other students was so intense that C.D. was completely knocked out and his cell phone was stolen. The perpetrators were not disciplined for their violent conduct. On another occasion, two boys ganged up on C.D. in gym class, hitting him in the back of the head with a cell phone and throwing objects at him.
247. A school employee once called C.D’s mother and told her to come to school to retrieve C.D. because C.D. “would get killed” if she did not get him.
248. The students who regularly bullied C.D. at school vandalized his family’s home on Christmas Eve, breaking their windows, including the large picture window in front of the house. C.D.’s mother reported this incident to the school and the school board, but the school did not take any action in response. C.D.’s mother also informed the police about the incident.
249. When C.D. fights back to protect himself against his assailants, he is subjected to disciplinary measures. C.D. was once suspended for 10 days because he hit a student in self-defense after the student physically attacked him. The other
86

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 87 of 133 Pg ID 87
student was not disciplined at all. C.D. asked the school to review its security tapes to see how the fight started, but the school refused to do so. Even when C.D.’s teacher has reported to the school’s Principal that other students have initiated fights with C.D., C.D. is disciplined. For example, his teacher once saw a student hit C.D. in the jaw and called for security. The teacher told the Principal that C.D. did not hit the other student in self-defense or retaliation, but C.D. still got in trouble.
250. Bullying is so pervasive among the students at Northwestern57 that C.D. has been forced to intervene when his younger brother has been targeted. On one occasion, C.D. defended his younger brother when ten students attacked him on the way home from school. The next day, a large crowd formed at Northwestern High School seeking retribution against C.D. When the crowd violently attacked C.D., the security guards did nothing.
251. The security guards have, however, used unduly harsh physical restraint techniques with C.D. He has been physically assaulted by the security guards at school even though he has an IEP.
57 Videos recording students fighting in Flint are made publicly on YouTube, where they are sometimes identified by the school’s name. See, e.g., “Flint Michigan fight Northwestern” video, YOUTUBE.COM, https://www.youtube.com/watch?v=e2B8upZsRlw (last visited October 9, 2016).
87

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 88 of 133 Pg ID 88
252. On one occasion, C.D. was thrown to the floor by a security guard, held down, and sprayed with mace. On another occasion, C.D. was held against the wall by a security guard who proceeded to bang C.D.’s head against the wall. On a third occasion, a security guard slammed C.D.’s head against the floor and injured C.D.’s hand as he tried to shield his face. C.D. went to the Principal’s office for medical attention, where he was told that there was nothing wrong with him. He was sent back to class and was not allowed to call his mother. C.D. was not released to go home until the end of the school day. When his mother later took him to the hospital with a severely swollen hand, X-rays revealed that his hand was broken.
253. Notwithstanding the frequency and duration of his suspensions and expulsions, C.D. has never received a MDR, FBA, or positive behavioral interventions.
254. In February 2016, C.D. was told to leave Northwestern High School after interjecting when his younger brother was being bullied. C.D. was instructed to leave the school premises immediately. The school’s Principal explicitly told him to “get the F out.” C.D.’s mother was not called to pick him up from school. C.D. asked if he could get his winter coat before leaving, but the school’s Principal barred him from retrieving his coat. C.D. walked four miles from school to home in extreme winter conditions in February without a coat. His mother went to the
88

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 89 of 133 Pg ID 89
school to find out why her son was put out, made to walk home, and without his coat. He did not receive any paperwork for the “snap” suspension. C.D. was able to return, but was put out later that month for fighting back when he was attacked by another student in the lunchrooms. He was expelled for six months.
255. No special education or related services have been provided to C.D. at home during the period of his expulsion, even though he qualifies for such services and has an IEP. Plaintiff D.K.
256. Plaintiff D.K. is a seven-year-old African American student in the first grade at Eisenhower Elementary School, an FCS school, who resides in Flint, Genesee County. He brings this case through his parent and next friend, Rachel Kirksey.
257. Before he entered Kindergarten at Eisenhower Elementary School, the Children’s Autism Center of Genesee Health System diagnosed D.K. with ASD. In addition, his psychologist diagnosed him with ADHD and the Hurley Medical Center diagnosed him with asthma and with allergies to shellfish and nuts.
258. The GISD’s Early Childhood Special Education (“ECSE”) program determined that D.K. was eligible for special education and related services for the qualifying disability of a Speech and Language Impairment. D.K. began receiving services to address his autism-related needs, including his speech and language
89

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 90 of 133 Pg ID 90
needs at the Children’s Autism Center of Genesee Health System when he was five years old. He attended a half-day program at the Children’s Autism Center for two hours in the morning followed by a three-hour ECSE program administered at Brownell K-2 STEM Academy, an FCS school, in the afternoon. When it was time for D.K. to transition to Kindergarten within FCS and to receive an IEP, his mother was contacted by a school psychologist who worked for FCS and was told that D.K. would be placed in a self-contained classroom for cognitively impaired students in grades K-2 at Durant-Tuuri-Mott Elementary School, an FCS school. D.K.’s placement was not arrived at through the IEP process. He also was not reevaluated to assess the status of his Speech and Language Impairment or other suspected disabilities, such as autism. He only lasted in that placement for two weeks, and was having problems in the classroom with the teacher. There was a meeting without D.K.’s mother, and it was determined that D.K. would be sent back to Brownell K-2 STEM Academy for the ECSE program.
259. His mother was told that he was not ready for the school environment and that they had nowhere to put him within the FCS school system because the self-contained cognitively impaired classroom at Durant-Tuuri-Mott was not appropriate for him. His mother had objected to this placement since he was not cognitively impaired.
90

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 91 of 133 Pg ID 91
260. An IEP meeting was subsequently convened to determine D.K.’s new placement. The IEP Team (with the exception of D.K.’s mother) found that D.K. did not qualify for special education and related services for the qualifying disability of a Speech and Language Impairment or for the qualifying disability of autism. D.K. was not reevaluated before this decision was made.
261. Although D.K. was not provided with a written IEP because he was determined to be ineligible for special education and related services, the acting FCS Director of Student Services and Learning Support Services stated at the IEP meeting that D.K. would be denied admission to Brownell K-2 STEM Academy or any other school within the FCS district because the district did not have the resources necessary to support his educational needs. D.K.’s mother was told to take him home and to “wait until next year” to enroll him in Kindergarten due to his limitations and his inability to negotiate the classroom environment without supports.
262. When D.K.’s mother resisted this blanket denial of admission to FCS schools, the district conditioned her son’s admission on her willingness to attend classes with him to help him maintain focus and transition between subjects. Thus, the district recognized D.K.’s need for one-on-one support, but placed the burden of providing such support on his mother. His mother had to care for D.K.’s baby sister and could not be in the school on a daily basis.
91

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 92 of 133 Pg ID 92
263. Due to FCS’s refusal to admit D.K. to a FCS school unless accompanied by his mother, D.K. was out of school for at least three months between preschool and kindergarten during a critical time in his development.
264. An independent reevaluation – which was not school-based – was conducted only after an advocacy group, Michigan Protection and Advocacy Services (“MPAS”), intervened on D.K.’s behalf. The reevaluation found that D.K. was eligible for special education and related services. It also revealed that D.K. has sensory, expressive language, and motor needs.
265. D.K. finally gained admission to Eisenhower Elementary School during the 2015-16 school year. D.K. was not, however, provided with an IEP until February 23, 2016. D.K. did not receive any Occupational Therapy until his IEP was put in place.
266. Although D.K.’s IEP sets forth the services to which he is entitled, D.K.’s IEP has not been properly implemented. For example, D.K. receives Speech and Language services in ten-minute intervals two times per month even though his IEP delineates that he should receive Speech and Language services for 15-25 minutes three-to-six times per month. D.K.’s mother reports that D.K. needs to continue to improve in the area of expressive language. She continually has to prompt him in order to make him use such language.
92

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 93 of 133 Pg ID 93
267. On one occasion, Eisenhower’s noncompliance with D.K.’s IEP culminated in a life-threatening situation. D.K.’s February 23, 2016 IEP states on the front page that he has a peanut allergy and an EpiPen to treat an allergic reaction. On May 17, 2016, D.K. was given a cookie containing nuts. D.K. went into anaphylactic shock. His skin became blotchy and he began vomiting. The school did not administer the EpiPen or call 911. Instead of calling emergency services, the school contacted D.K.’s mother. His mother asked the school to call an ambulance, but staff members refused, stating that “[w]e cannot transport students.” Since D.K.’s mother is legally blind and cannot drive, D.K.’s grandmother picked her up and drove her to Eisenhower Elementary School. Together, they rushed D.K. to the Hurley Medical Center Emergency Room. He was treated with epinephrine and steroids, administered through an intravenous drip. The hospital discharge papers noted that anaphylaxis is “a life threatening allergic reaction that must be treated immediately.” In the report that D.K.’s teacher wrote concerning the incident, she erroneously stated that “there is no epi pen . . . or allergies noted for D.K.”
268. The school did not have a crisis plan in place to identify a child having an allergic or asthmatic reaction, to treat the child, and to contact emergency services.
93

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 94 of 133 Pg ID 94
269. Over a period of at least eighteen months from 2014-15, D.K. was exposed to lead-contaminated water both at Eisenhower Elementary School, which has tested positive for elevated lead levels, and at home. He resides in an area of Flint which is being monitored for high levels of lead in its water supply. D.K.’s mother procured a lead test for him from an outside provider. He tested positive for elevated blood lead levels.
270. Despite his known and prolonged exposure to lead, D.K. has not been reevaluated to assess the potentially adverse impact of his lead exposure on his learning, psychological, behavioral, and physical needs. He also has not received routine vision or hearing screenings from the school.
271. Partially as a result, D.K.’s February 23, 2016 IEP, which was amended on June 15, 2016, does not address all of his academic and behavioral needs. His IEP contains no supplementary aids and services. For example, although D.K. has been diagnosed with ASD, he does not receive any ASD consultant services through his IEP.
272. In addition, while D.K.’s IEP includes a BIP and FBA, it does not provide for necessary positive behavioral intervention supports. D.K.’s mother reports that his behavioral needs are not being met or appropriately addressed. D.K. is consequently removed from the classroom environment for disabilityrelated behaviors on a regular basis. His mother has been called twice this school
94

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 95 of 133 Pg ID 95
year to pick him up because of his behaviors. Interventions listed in D.K.’s FBA and BIP, which include “notes home” and “calls home[,]” were not being carried out consistently. His mother is called every day to calm him down. D.K. is also excluded from field trips due to the behavioral manifestations of his disability. He is only allowed to attend if his parent or grandparent will accompany him.
273. According to D.K.’s mother, D.K. had approximately 30 absences during the 2015-16 school year and was suspended three times for a total of approximately six days. About two-thirds of his absences occurred when he was sent home for the rest of the school day and his mother was instructed by the school to keep him home the next day so that he could “cool off.”
274. Despite the frequency and duration of D.K.’s suspensions, D.K. has not received a MDR. Plaintiff M.K.
275. Plaintiff M.K. is a three-year-old who resides in Flint, Genesee County. She is the younger sister of Plaintiff D.K. and brings this case through her parent and next friend, Rachel Kirksey.
276. M.K. will turn four-years-old in November 2016. Despite her age and eligibility, she is not currently enrolled in a preschool program.
277. M.K.’s mother has attempted to enroll M.K. in preschool since June 2016. At that time, she contacted GISD’s Head Start Program and was told that an
95

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 96 of 133 Pg ID 96
application for enrollment would be sent to her home address. M.K.’s mother never received an application for enrollment.
278. In her initial conversation with a staff member at GISD’s Head Start Program, M.K.’s mother was informed that the home services component of the program would commence in July 2016.
279. M.K.’s mother contacted the Head Start Program again in July 2016 to notify the staff that she had not received the enrollment application that they committed to send to her via mail. She also inquired about whether M.K. could begin receiving at-home services. She was summarily informed that the office was closed for the summer.
280. M.K.’s mother has followed up with the Head Start Program on a weekly basis, but still has not been able to secure a place for her daughter in the program.
281. In September 2016, M.K.’s mother personally went to the GISD offices to fill out the paperwork to enroll M.K. in preschool. However, M.K.’s enrollment still has not been confirmed.
282. M.K. may have needs related to her lead water exposure. However, since she is not enrolled in preschool, she has not been evaluated to determine whether she qualifies for special education and related services.
96

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 97 of 133 Pg ID 97
283. Over a period of at least eighteen months from 2014-15, M.K. was exposed to lead-contaminated water. She resides in an area of Flint which is being monitored for high levels of lead in its water supply. Despite her known and prolonged exposure to lead, she has not been evaluated to assess the potentially adverse impact of her lead exposure on her learning, psychological, behavioral, and physical needs. She also has not received routine vision or hearing screenings. Plaintiff O.N.
284. Plaintiff O.N. is an eight-year-old student in the third grade at Doyle/Ryder Elementary School, an FCS school, who resides in Flint, Genesee County. He brings this case through his grandmother and next friend, Manita Davis.
285. From the time that he was a preschool student, O.N. exhibited behavior characteristic of ASD. His preschool teacher noticed and was concerned, since she had a child with ASD. She encouraged O.N.’s guardian grandmother to request an initial evaluation to determine if he was a student with a disability who qualified for special education and related services. The verbal request was denied and, as a result, O.N. was not evaluated at the preschool level. The preschool teacher did not obtain an evaluation for O.N. even though she noted her concerns to his grandmother, and encouraged her to initiate the request.
97

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 98 of 133 Pg ID 98
286. When O.N. entered Kindergarten at Doyle/Ryder Elementary School, his grandmother continued to orally request an initial evaluation for ASD. School administrators were dismissive of her request, alternatively labeling O.N.’s behavior as “bad” and denying that such behavior was connected to an underlying disability. As a result, O.N. did not receive an evaluation in Kindergarten.
287. In first grade, O.N. was diagnosed with ADHD by Dr. Surina Minhas, a private practitioner.
288. O.N.’s grandmother informed Doyle/Ryder of O.N.’s diagnosis and made a written request for an initial evaluation at the urging of O.N.’s pediatrician. Notwithstanding this diagnosis, the school did not conduct an evaluation to determine if O.N. qualified for special education and related services. Administrators told O.N.’s grandmother that O.N. was “too smart” and his “IQ is too high” and dissuaded her from pursuing her request.
289. Student records at Doyle/Ryder were destroyed in a flood at the school. Consequently, the date on which O.N.’s grandmother made a written request for an evaluation is unclear, as is the date on which she disclosed his ADHD diagnosis by an outside provider.
290. Due to the school’s refusal to provide O.N. with an evaluation to assess his needs and to provide him with the attendant special education and related services, O.N. does not have an IEP in place and has repeatedly been
98

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 99 of 133 Pg ID 99
suspended and removed from the classroom environment for disability-related behaviors.
291. When O.N. was in Kindergarten, his teacher and peers frequently approached his grandmother’s car when she came to pick him up from school to inform her of all of the ways that O.N. misbehaved on a given day.
292. Instead of referring him for an evaluation, at the end of O.N.’s Kindergarten year, his Kindergarten teacher instructed the school to place him in a first grade classroom with a teacher who had a reputation for being a strict disciplinarian. O.N.’s Kindergarten teacher reasoned that this first grade teacher would not “put up with his crap.”
293. Indeed, when O.N. reached the first grade, his disability-related behavioral needs were not properly addressed. During the 2014-15 school year, O.N. missed 20-30 days of school.
294. This pattern continued into the 2015-16 school year, when he entered the second grade. O.N. missed 68 days of school during the school year. Twentynine of his absences were for medical leave. O.N. was not provided with any homebound services or instructional supports for the duration of his medical leave and his medical leave was not documented. O.N. was also suspended twelve times in second grade. On June 10, 2016, the school suspended him for the remainder of the school year due to his “threatening” behavior when he used his hands to form a
99

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 100 of 133 Pg ID 100
make-believe gun and pretended to shoot other students. His second grade teacher believed that he needed to be disciplined and “that’s all it comes down to.”
295. Over a period of at least eighteen months from 2014-15, O.N. was exposed to lead in the drinking water at Doyle/Ryder and at home. His school tested positive for elevated lead levels in the drinking water. The residential area in which he lives is also being monitored for lead in the water supply. Not only did his disability-related behaviors worsen over the timeframe in which he was exposed to lead-contaminated water, but his physical health also deteriorated. His growth tapered off and he did not gain any weight.
296. As O.N. was never evaluated by his school for any suspected disability—notwithstanding the concerns of his preschool teacher, multiple requests from his grandmother, and a disclosed ADHD diagnosis—— the school has not assessed the potentially adverse impact of O.N.’s known and prolonged lead exposure on his physical, psychological, behavioral, and learning needs. The school also failed to administer routine vision and hearing screenings even though O.N.’s grandmother has concerns about his vision and hearing.
297. O.N. is erroneously listed as “active” in the school’s IEP system even though he has been denied both an initial evaluation and an IEP.
298. O.N. has not received an MDR to assess whether his behaviors are attributable to a disability.
100

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 101 of 133 Pg ID 101
299. Similarly, O.N. has never received a FBA, BIP, or positive behavioral intervention supports.
300. The extent to which O.N.’s suspensions and removals were documented is unknown because O.N.’s records were destroyed in the flood at Doyle/Ryder.
301. In addition to being excluded from the classroom environment through repeated suspensions and removals, O.N. was excluded from field trips for his “fidgety” behavior.
302. This school year – third grade – he has been suspended twice. His grandmother has again submitted her written request for an evaluation, on the second day of school and has received nothing, except repeated complaints from his teacher that he is not paying attention, will not sit still, and is disruptive in class.
303. The exclusion that O.N. has faced, along with Doyle/Ryder’s persistent labeling of him as a “bad apple” – without any recognition of the suspected underlying disabilities animating his behavior – has had a stigmatizing effect. It has undermined O.N.’s confidence and destroyed his self-esteem. He now wants to quit school and has attempted to inflict bodily harm on himself.
101

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 102 of 133 Pg ID 102
Plaintiff D.T.
304. Plaintiff D.T. is a thirteen-year-old seventh grade student at Flint Southwestern Academy, an FCS school, who resides in Flint, Genesee County. Previously, she attended Doyle/Ryder Elementary School, another FCS school. She is the Plaintiff O.N.’s older sister and brings this case through her grandmother and next friend, Manita Davis.
305. D.T. has been diagnosed with ADHD and bipolar disorder by an outside provider, Dr. Warner.
306. Over a period of at least eighteen months from 2014-15, D.T. was exposed to lead in the water at Doyle/Ryder Elementary School and at home. Doyle/Ryder Elementary School has tested positive for elevated levels of lead in the water. D.T. also resides in a zip code where the water supply is being monitored for high levels of lead.
307. D.T.’s academic performance has declined over the period that she was exposed to lead-contaminated water, with her grades dropping precipitously over the course of the 2015-16 school year when she was in the sixth grade at Doyle/Ryder Elementary School. During the first quarter of the year, she received all As and Bs. By the third quarter, her grades had fallen to all Es (59% or below) in the same subjects. Her grades were in the C and D range by the fourth quarter of the school year. She has identified that she needs help with reading and math.
102

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 103 of 133 Pg ID 103
308. Over the same period, she received low scores on the Michigan Assessment of Educational Progress (“MEAP”) examinations in Math, Reading, Language, and Science.
309. As a result of the rapid turnover in staff at Doyle/Ryder Elementary, D.T. had over thirteen different teachers during the sixth grade, disrupting the continuity of the instruction that she received. She also was often brought to tears at school due to the chaotic classroom environment. She reports that her teachers did nothing to keep students under control and to maintain decorum in the classroom. Fighting and bullying was also common. In fact, on one occasion, D.T.’s classmates wrote on her desk, “They are coming for you.” After receiving this threat, she stayed close to her teacher.
310. D.T. has to miss school due to her disabilities. She is very sensitive to loud noises and chaotic environments and she would ask to stay home. During the 2015-16 school year, she had 13.5 absences. Despite her diagnosed disabilities, her known and prolonged exposure to lead-contaminated water, and the dramatic drop in her grades over the course of the 2015-16 school year, Doyle/Ryder Elementary did not conduct an evaluation to determine whether D.T. was eligible for special education and related services.
311. D.T.’s grandmother submitted a written request for an evaluation on April 11, 2016. The request expressed concern about D.T.’s “academic progress . .
103

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 104 of 133 Pg ID 104
. and accommodations.” The request was specifically for testing related to “emotional, behavioral impairments.” It detailed that D.T. was “having difficulty with numerous staff members and classroom expectations; also with being attentive, remaining engaged, completing assignments, and taking notes.” The written request additionally stated that D.T.’s “self-esteem issues have increased, significantly, this past year. Academically, [D.T.] is struggling in almost every subject.”
312. To date, it appears that this request has been ignored and that D.T. has not received an evaluation. The impact of D.T.’s known and prolonged lead exposure on her physical, psychological, behavioral, and academic needs remains unassessed as a result. She also has not received routine vision or hearing screenings even though she needs to wear glasses to school on a daily basis. Plaintiff D.D.
313. Plaintiff D.D. is a twelve-year-old seventh grade student who resides in Flint, Genesee County and who currently attends school in the CarmanAinsworth Community Schools district. He previously attended Holmes 3-6 STEM Academy, an FCS school. Plaintiff D.D. brings this case through his father and next friend, Willie Daniels.
314. For the past two years, D.D. attended Holmes 3-6 STEM Academy in Flint. During the 2014-15 school year, D.D. was a fifth-grade student at Holmes
104

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 105 of 133 Pg ID 105
STEM Academy and during the 2015-16 school year, he was a sixth-grade student there.
315. D.D. has been diagnosed with ADHD and bipolar disorder. He is treated for both through the New Hope Network. He has been prescribed Concerta for his ADHD and Depakote and Abilify for his bipolar disorder.
316. Over the period of at least eighteen months from 2014-15, D.D. was exposed to lead-contaminated water both at home and at school. Holmes 3-6 STEM Academy tested positive for elevated levels of lead in the drinking water. Water fountains at the school were not taped off during the period of April 2014 to October 2015 and bottled water was not readily accessible to students during this time.
317. Despite his known diagnoses for ADHD and bipolar disorder, and his known and prolonged exposure to lead, D.D. was not evaluated at Holmes 3-6 STEM Academy for suspected disabilities to determine his eligibility for special education and related services. As a result, the potentially adverse impact of lead on his academic, behavioral, psychological, and physical needs has not been assessed. Routine vision and hearing screenings also were not conducted at Holmes 3-6 STEM Academy.
318. Over the period from 2014-16, fighting and bullying were common at Holmes 3-6 STEM Academy. During this time, D.D. was hit by his peers at school
105

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 106 of 133 Pg ID 106
on at least five or six occasions. Fighting at school is so pervasive that at one point, D.D.’s entire grade was sent home from school for engaging in such behavior.
319. During the period in which he was exposed to lead-contaminated water, D.D.’s disability-related behaviors escalated and were not adequately addressed by Holmes 3-6 STEM Academy. D.D.’s father reported that D.D. increasingly engaged in aggressive behavior over this time period, both at home with his sibling and at school. He had over 20 absences during the 2015-16 school year, at least 9 of which were suspensions from school.
320. As a result of his exclusion from the general education environment, D.D.’s academic performance suffered at Holmes 3-6 STEM Academy. D.D.’s father states that D.D. did not receive necessary academic or behavioral supports, such as positive behavioral intervention services.
321. D.D.’s father met with the school liaison officer only once during the two years that D.D. was enrolled at Holmes 3-6 STEM Academy, even though D.D. was clearly struggling with his academics and behaviors. D.D.’s father reports that the school liaison officer seemed overwhelmed and did not provide parents with information about academics. He only heard about academics when D.D. brought a report card home. In his last report card from Holmes 3-6 STEM Academy, D.D. had four Ds and one C.
106

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 107 of 133 Pg ID 107
322. D.D.’s father submitted a request in writing to have his child evaluated in May of 2016. The school did an evaluation and held an IEP meeting on July 28, 2016. D.D. was at the one percentile mark for processing speed and the 3rd percentile mark for his working memory. The school psychologist wrote, “there were no vision, hearing or speech problems noted.” Yet, there was no explanation of the assessment that was given to make this determination. D.D. was found ineligible for special education and related services by FCS. Plaintiff C.W.
323. Plaintiff C.W. is a four-year-old resident of Flint, Genesee County who attends the daycare and Head Start preschool programs offered on site through the GISD at St. Luke’s in Flint. In June and July of 2015, C.W. attended the daycare program at Uniquely Created Children’s Center, which is housed in New Standard Academy, a charter school in Flint. He brings this case through his parent and next friend, Chandrika Walker.
324. C.W. has been diagnosed with asthma. 325. Over a period of at least eighteen months from 2014-15, C.W. was exposed to lead-contaminated water both at his daycare program at Uniquely Created Children’s Center and at home. At Uniquely Created Children’s Center, C.W. drank the tap water and ate food onsite that was prepared using leadcontaminated water.
107

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 108 of 133 Pg ID 108
326. C.W. tested positive for lead in September 2014 when his mother had procured a lead screening for him at Mott Children’s Health Center. However, his mother was not informed of the results of this test until December 2015, when she was contacted by Michigan Department of Health & Human Services.
327. During the period over which C.W. was exposed to lead-contaminated water, his mother noticed that he had increased aggression. He is also very hyper and has developed rashes.
328. Although C.W. is currently enrolled in a GISD-run Head Start program at St. Luke’s, he has not been evaluated for suspected disabilities to determine whether he qualifies for special education and related services. As a result, the potentially adverse impact of lead on his academic, behavioral, psychological, and physical needs has not been assessed.
329. C.W.’s mother attempted to enroll him in the Head Start program at Sunny Patch Learning Center. She could not work until C.W. was placed in the Head start Program at Sunny Patch Learning Center, and her infant son could attend the daycare. Sunny Patch required her to have birth certificates for her sons, which was cost-prohibitive. They refused her children without it. Plaintiff J.B.
330. Plaintiff J.B. is a five-year-old African-American student in Kindergarten at Eisenhower Elementary School, an FCS school, who resides in
108

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 109 of 133 Pg ID 109
Flint, Genesee County. He brings this case through his mother and next friend, Jeree Brown.
331. J.B.’s mother became concerned about her son’s lack of developmental progress when he was only nine months old. At that time, a registered nurse who worked at J.B.’s daycare alerted his mother to delays in J.B.’s speech and socialization skills.
332. J.B. was evaluated for, and diagnosed with, ASD by an outside provider, the Children’s Autism Center of Genesee Health System, on September 2, 2014. He was three years old.
333. J.B.’s mother consequently requested an evaluation for a Speech and Language Impairment through Early On Michigan in 2014. She made this request both orally and in writing through J.B.’s GISD Early On worker.
334. This request was ignored and J.B. never received an evaluation for a Speech and Language Impairment which would enable him to receive Early Childhood Special Education through the GISD and then through FCS when he entered Kindergarten.
335. Over a period of at least eighteen months from 2014-15, J.B. was exposed to lead-contaminated drinking water both at home and at the GISD Early Learning Program housed on the Holy Redeemer church grounds, which is in the City of Flint.
109

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 110 of 133 Pg ID 110
336. In the 2015-16 school year, J.B. was enrolled in the GISD Early Learning Program. He also attended a program run in the mornings by the Children’s Autism Center for two hours per day, three days per week.
337. J.B.’s teacher at the GISD Early Learning Program encouraged J.B.’s mother to make a written request for an initial evaluation to determine J.B.’s eligibility for an IEP. J.B.’s teacher identified his areas of need, noting that he works better in small groups and that he excels most when he receives individual attention in a one-on-one setting. She also added that J.B. needs frequent breaks.
338. At the urging of J.B.’s Early Learning Program teacher, J.B.’s mother made a written request for an initial evaluation via email in September 2015. J.B. did not receive an evaluation until January 2016, four months after his mother’s written request.
339. The evaluation found that J.B. was not eligible for special education and related services for the qualifying disability of a Speech and Language Impairment. J.B.’s mother was, however, told that J.B. could attain access to speech and language services at the Children’s Autism Center. When J.B.’s mother approached the Autism Center, she was told that they did not provide speech and language therapy.
340. Despite his known and prolonged exposure to lead, J.B.’s evaluation did not assess the potentially adverse impact of lead on his academic, behavioral,
110

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 111 of 133 Pg ID 111
psychological, and physical needs. Routine vision and hearing screenings also were not conducted.
341. Before she enrolled J.B. in the GISD Early Learning Program for the 2015-16 school year, J.B.’s mother inquired about enrolling him in the Head Start preschool program at Eisenhower Elementary School, an FCS school. She asked whether the program provided any accommodations for children with ASD. She was told by Eisenhower’s Head Start teacher that “Maybe we should just leave people like him” where they are (at a GISD-run program). J.B.’s mother was left with the impression that the school was not accepting, or equipped to deal with the needs, of students with disabilities.
342. J.B.’s mother called the Principal at Eisenhower Elementary School on August 31, 2015 to report the comment made by the Head Start teacher. She was told that the Principal was unavailable. She made repeated attempts to contact the Principal over the course of the next month, but all of her attempts were rebuffed. She went to the school, and was told by Ms. Turner, the Principal, that the Principal was not available. J.B.’s mother was unaware that she was actually having a conversation with the Principal at the time.
343. J.B.’s mother did not receive a response from the Principal until October 5, 2015. Eisenhower had placed J.B. in a Head Start classroom with the teacher who had made demeaning remarks about him to his mother. J.B.’s mother
111

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 112 of 133 Pg ID 112
requested that he be placed in the other Head Start classroom with a different teacher than the one who stated he needed to stay at the GISD program. The Principal said that it was full. Since J.B.’s mother was unable to have J.B. reassigned to another classroom, or to obtain assurance that action would be taken to ensure that J.B. would not be discriminated against, she chose not to enroll J.B. in the Head Start program at Eisenhower. She decided to enroll him in the GISD Early Learning Program instead.
344. After J.B. was found ineligible for special education and related services, J.B.’s mother requested for an evaluation to be conducted again on July 18, 2016. She wanted J.B. to attend school at Eisenhower since this is their community school and where her daughter, J.B.’s sister, is enrolled.
345. For the 2016-17 school year, J.B. was enrolled at Eisenhower. Principal Turner, upon realizing that an evaluation had been requested, informed J.B.’s mother that if he received an IEP, he would be placed in a separate classroom. This was alarming to J.B.’s mother since she wanted J.B. to be placed in a general education classroom. At this point, J.B.’s evaluation had not even begun.
346. On September 26, 2016, J.B.’s mother completed the REED and gave written consent to have J.B. evaluated. Yet, she is concerned that the Principal will
112

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 113 of 133 Pg ID 113
place him in the “autism room” as she had previously indicated she would if he qualified for an IEP.
347. J.B.’s mother identifies his areas of need as support for autism, speech and language services, and instruction in reading and writing. She adds that he needs assistance with socialization skills (such as taking turns, maintaining eye contact, and exchanging greetings).
348. He is currently receiving Applied Behavior Analysis services through the Children’s Autism Center of Genesee Health System. J.B.’s mother has shared this with the school, and provided documentation, and he is still being marked tardy when she checks him out at 2:15pm to obtain this service, which the school has failed to provide or assess him for.
CAUSES OF ACTION
COUNT I (as to all Defendants) Systemic Violations of the Individuals with Disabilities Education Act, 20
U.S.C. § 1400 et seq. and Implementing Federal Regulations
Systemic Violation 1: Failure to Develop and Implement Child Find Procedures
349. Plaintiffs re-allege paragraphs 90-348 as though fully set forth herein. 350. Pursuant to the IDEA’s child find mandate, the State must have in effect policies and procedures to ensure that all children with disabilities residing
113

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 114 of 133 Pg ID 114
in the State who are in need of special education and related services are identified, located, and evaluated, regardless of the severity of their disabilities. 20 U.S.C. §1412(a)(3)(A); 34 C.F.R. § 300.111(a)(1)(i).
351. The IDEA and its implementing regulations define a “child with a disability” as a child with intellectual disabilities, mental retardation, a hearing impairment (including deafness), a speech or language impairment, visual impairment (including blindness), a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. 20 U.S.C. § 1401(3); 34 C.F.R. § 300.8(a)(1).
352. An “other health impairment” means having “limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that – (i) [i]s due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and (ii) [a]dversely affects a child’s educational performance.” 34 C.F.R. § 300.8(c)(9)(i-ii) (emphasis added).
114

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 115 of 133 Pg ID 115
353. Under the IDEA, a SEA or LEA must conduct a full and individual initial evaluation before the initial provision of special education and related services to a child with a disability. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. § 300.301(a). The initial evaluation shall consist of procedures to determine whether a child is a child with a disability and the educational needs of that child. 20 U.S.C. § 1414(a)(1)(C)(i); 34 C.F.R. § 300.301(c)(2). The parent, SEA, other State agency, or LEA may initiate a request for an initial evaluation. 20 U.S.C. § 1414(a)(1)(B); 34 C.F.R. § 300.301(b).
354. The initial evaluation must be conducted within 60 days of receiving parental consent, or within the timeframe established by the State, if the State establishes such a timeframe. 20 U.S.C. § 1414(a)(1)(C)(i)(I); 34 C.F.R. § 300.301(c)(1). Under Michigan law, the initial evaluation must be conducted and an eligibility determination must be made within 30 school days of receiving parental consent. MARSE Rule 340.1721b(1).
355. Defendants must ensure that a reevaluation of each child with a disability is conducted if the educational or related services needs of the child warrant a reevaluation. 20 U.S.C. § 1414(a)(2)(A)(i); 34 C.F.R. §300.303(a)(1). A LEA is also responsible for ensuring that a reevaluation is conducted if the child’s parent or teacher requests one. 20 U.S.C. § 1414(a)(2)(A)(ii); 34 C.F.R. §300.303(a)(2). At a minimum, a reevaluation must occur on a triennial basis,
115

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 116 of 133 Pg ID 116
even in the absence of an explicit request or qualifying circumstances, unless the parent and the LEA agree that a reevaluation is unnecessary. 20 U.S.C. § 1414(a)(2)(B)(ii); 34 C.F.R. §300.303(b)(2).
356. The IDEA outlines detailed and comprehensive procedures for the conduct of evaluations, requiring the Defendants to “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining – (i) whether the child is a child with a disability; and (ii) the content of the child’s individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum.” 20 U.S.C. § 1414(b)(2)(A) (emphasis added); see also 34 C.F.R. §300.304(b)(1).
357. Importantly, each LEA “shall ensure that the child is assessed in all areas of suspected disability.” 20 U.S.C. § 1414(b)(3)(B) (emphasis added). Areas related to the suspected disability include, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. 34 C.F.R. § 300.304(c)(4). The child find mandate expressly includes all children with a suspected disability, even if they are advancing from grade to grade. 34 C.F.R. § 300.111(c)(1).
116

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 117 of 133 Pg ID 117
358. The Defendants must “use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.” 20 U.S.C. § 1414(b)(2)(C) (emphasis added); 34 C.F.R. § 300.304(b)(3) (emphasis added). Each Defendant must also ensure that “assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.” 34 C.F.R. § 300.304(c)(2) (emphasis added). The evaluation must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” 34 C.F.R. § 300.304(c)(6).
359. As part of an initial evaluation, if appropriate, and as part of any reevaluation, the IEP Team and other qualified professionals shall review existing evaluation data on the child, including: “(i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; (iii) and observations by teachers and related services providers.” 20 U.S.C. § 1414(c)(1)(A) (emphasis added); 34 C.F.R. § 300.305(a)(1) (emphasis added). On the basis of that review, and input from the child’s parents, the IEP Team and other qualified professionals, as appropriate, shall identify what additional data, if any, are needed to fulfill the
117

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 118 of 133 Pg ID 118
child find obligations under the IDEA. 20 U.S.C. § 1414(c)(1)(B); 34 C.F.R. § 300.305(a)(2). The LEA must administer the assessments and evaluation measures needed to produce such additional data. 20 U.S.C. § 1414(c)(2); 34 C.F.R. § 300.305(c).
360. In addition, the LEAs are charged with ensuring that assessments “are administered by trained and knowledgeable personnel.” 20 U.S.C. § 1414(b)(3)(A)(iv); 34 C.F.R. § 300.304(c)(1)(iv).
361. Finally, in interpreting the evaluation data for the purpose of determining if a child is a child with a disability and the educational needs of the child, Defendants must “[d]raw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior.” 34 C.F.R. § 300.306(c)(1)(i) (emphases added). Defendants shall “[e]nsure that information obtained from all of these sources is documented and carefully considered. 34 C.F.R. § 300.306(c)(1)(ii).
362. Despite community-wide exposure to elevated levels of lead, Defendants have a pattern and practice of systematically failing to provide early screening and timely referrals for evaluations for three- and four-year-olds residing in Flint to identify the existence of a qualifying disability and eligibility for special
118

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 119 of 133 Pg ID 119
education and related services, and are systematically failing to provide appropriate early intervention services, including universal, high-quality preschool education. With respect to children aged 3-4, the child find mandate, requiring proactive identification, location, and evaluation of children with disabilities, is not likely to be discharged unless children in this age range are provided early intervention services, or enrolled in universal preschool, which would allow suspected disabilities among this population to be observed and assessed.
363. Defendants also have a pattern and practice of systematically failing to ensure that Flint students with disabilities are identified, located, and evaluated in compliance with the IDEA, even in the face of community-wide lead exposure known to cause disability.
364. Defendants FCS and GISD have a pattern and practice of systemically failing to provide ongoing screening and timely referrals for evaluations to identify qualifying disabilities which make students eligible for special education services pursuant to IDEA’s child find mandate.
365. Moreover, Defendant MDE has failed to appropriately monitor, conduct proper oversight, and provide Defendants FCS and GISD with the resources and expertise to perform the necessary evaluations, meaning that the IDEA’s child find mandate cannot be properly implemented by the Defendant LEAs. As a result of the Defendants’ failures, children with disabilities remain
119

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 120 of 133 Pg ID 120
unidentified and are denied the educational services and procedural safeguards to which they are legally entitled under the IDEA.
Systemic Violation 2: Failure to Provide a Free Appropriate Public Education that Confers a Meaningful Educational Benefit in the Least Restrictive Environment
366. Plaintiffs re-allege paragraphs 90-348 as though fully set forth herein. 367. Federal law requires that qualifying children with disabilities receive a free appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101(a). To achieve this goal, the IDEA requires that Defendants design and develop an individualized education program (“IEP”) for each qualifying child with a disability in their district. 20 U.S.C. § 1412(a)(4), §1414(d); 34 C.F.R. § 300.112, §§ 300.320-24. 368. IDEA requires IEPs to contain several key pieces of information to ensure that they are designed to confer a meaningful educational benefit, including: (1) a statement of the student’s present levels of academic achievement and functional performance; (2) a statement of measurable annual academic and functional goals; (3) a statement of the special education and related services that will be provided to the student; (4) an explanation of the extent, if any, to which the student will not participate with nondisabled students in regular classes; (5) a statement of any individual appropriate accommodations necessary to measure the
120

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 121 of 133 Pg ID 121
academic achievement and functional performance of the student; (6) the projected start date for any related services; and (7) transition services for students who have reached the age of 16. 20 U.S.C. § 1414(d)(3).
369. The IDEA requires, to the maximum extent possible, that children with disabilities be educated with children who are not disabled, and that removal from the regular education environment occurs only when education in regular classes with the use of supplementary aids and services cannot be satisfactorily achieved. 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.114(a)(2). Districts must have available a continuum of alternative placements for children with disabilities. 34 C.F.R. § 300.115.
370. Defendants FCS and GISD have an ongoing pattern and practice of systemically failing to provide special education and related services compliant with students’ IEPs in the least restrictive environment as required by the IDEA.
371. Moreover, Defendant MDE has failed to appropriately monitor, conduct proper oversight, and provide Defendants FCS and GISD with the resources and expertise to provide the necessary services in the least restrictive environment. As a result of the Defendants’ failures, children with disabilities are denied the educational services to which they are legally entitled under the IDEA.
121

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 122 of 133 Pg ID 122
Systemic Violation 3: Failure to Protect Students’ Due Process Procedural Safeguards in the
Disciplinary Process
372. Plaintiffs re-allege paragraphs 90-348 as though fully set forth herein. 373. In order to ensure that each child with a disability is provided with a free appropriate public education, the IDEA has established a number of procedural safeguards that must be provided to a student with a disability who is subject to disciplinary removals. 374. IDEA requires that students with disabilities be granted certain procedural safeguards with respect to the disciplinary process to ensure that they are not removed from the learning environment on account of their disabilities. 375. Under IDEA, when a child with a disability is removed from his or her original educational placement for more than ten cumulative school days in an academic school year, procedural protections and services must be provided to the student. 20 U.S.C. §1415(k). One such procedural protection is a manifestation determination review (“MDR”) to determine whether the student’s behaviors are a manifestation of his or her disabilities. 20 U.S.C. §1415(k)(1)(E). This requirement helps ensure that a school does not impose a long-term suspension, series of suspensions, or expulsion on a special education student on account of a behavior that is merely a “manifestation” of his or her disability. 20 U.S.C. § 1415(k)(1)(E).
122

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 123 of 133 Pg ID 123
376. The IDEA mandates that if a child’s behavior is a manifestation of that student’s disability, the child must be permitted to return to, or remain at, his or her current school placement and be provided with all of the behavioral services necessary to support and reinforce the child’s positive behavior. 20 U.S.C § 1415(k)(1)(F). These behavioral supports include a functional behavioral assessment (“FBA”) to determine the function or cause of the child’s disability and an accompanying behavioral intervention plan (“BIP”) to adequately accommodate the student’s educational and behavioral needs. 20 U.S.C § 1415(k)(1)(F)(i)-(ii).
377. A manifestation determination review is triggered after ten cumulative days of suspensions or expulsions. Additionally, the IDEA and its implementing regulations state that a series of removals totaling more than 10 school days can form a “pattern” of behavior (e.g. “because the child's [disciplined] behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals”) that also triggers a mandatory MDR. 34 C.F.R. 300.536(a)(2). Notably, the MDR is not limited to determining whether the behavior at issue is a byproduct of the child’s disability, but must additionally inquire into whether it may be the consequence of the district’s failure to adequately implement his or her IEP. 20 U.S.C. § 1415(k)(1)(E)(i).
378. There are, however, certain specified behaviors that permit a school district to alter a student’s prescribed placement in favor of an “interim alternative
123

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 124 of 133 Pg ID 124
educational setting” for up to 45 days. 20 U.S.C. § 1415(k)(1)G). This exception is restricted to the following three behaviors: (1) carrying a weapon to school; (2) knowingly possessing or using illegal drugs, or selling or soliciting the sale of a controlled substance, at school; or (3) inflicting serious bodily injury on another individual at school. Id.
379. Nevertheless the interim alternative educational setting must still provide the child a free appropriate public education. The placement must also include services designed to adequately address the behavior for which the student is being suspended. 20 U.S.C. § 1415(k)(1)(D).
380. Under the IDEA, even students who do not already have an IEP in place are equally entitled to the same procedural safeguards afforded to their special education peers. Indeed, disciplinary protections extend to students who the LEA knew or should have known are students with disabilities. 20 U.S.C. § 1415(k)(5).
381. Defendants FCS and GISD have an ongoing pattern and practice of systemically failing to provide students with disabilities with procedural safeguards as required by IDEA in the administration of disciplinary practices, as well as a pattern and practice of using unduly harsh disciplinary measures with students with disabilities, including physical restraints and seclusion techniques, in violation of IDEA. Defendant MDE has failed to appropriately monitor, conduct proper
124

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 125 of 133 Pg ID 125
oversight, and provide Defendants FCS and GISD with the resources and expertise to provide the necessary procedural safeguards. As a result of Defendants’ failures, students with disabilities are subjected to disciplinary practices and excluded from the classroom environment, instead of receiving the instructional and behavioral supports they need.
Systemic Violation 4: Discrimination on the Basis of Disability and Denial of Access to Educational
Services 382. Plaintiffs re-allege paragraphs 90-348 as though fully set forth herein. 383. Defendant MDE must ensure that each LEA in Michigan, including Defendants FCS and GISD, takes steps to ensure that children with disabilities within its jurisdiction have available to them the variety of educational programs and services available to nondisabled children, including art, music, industrial arts, consumer and homemaking education, and vocational education. 20 U.S.C. § 1412(a)(2), § 1413(a)(1); 34 C.F.R. § 300.110. 384. Defendants’ systematic failure to ensure that children with disabilities have available the same variety of programs and services as nondisabled children is a violation of their rights under the IDEA.
125

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 126 of 133 Pg ID 126
COUNT II (as to all Defendants) Discrimination Based on Disability in Violation of the Rehabilitation Act, 29
U.S.C. § 794 et seq. 385. Plaintiffs re-allege paragraphs 90-348 as though fully set forth herein. 386. As detailed above, all Defendants have—through their respective actions and inactions—exercised gross misjudgment and discriminated against Plaintiffs and similarly situated children by denying them access to essential services and programming that is available to non-disabled students solely on account of their disabilities in violation of Section 504 of the Rehabilitation Act (29 U.S.C. § 794 et seq., 34 C.F.R. § 104 et seq.). 387. As described above, Defendants have failed to provide Plaintiffs and similarly situated children with a FAPE and/or reasonable accommodations due to their disability-related behaviors. 388. Defendant MDE has further failed to comply with its general supervisory responsibilities by failing to adequately oversee and supervise Defendants GISD and FCS to ensure that the representative Plaintiffs and the class of similarly situated individuals receive a free appropriate public education and/or reasonable accommodations.
126

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 127 of 133 Pg ID 127
COUNT III (as to all Defendants) Discrimination Based on Disability in Violation of Title II of the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. 389. Plaintiff re-allege paragraphs 90-348 as though fully set forth herein. 390. As detailed above, all Defendants have—through their respective actions and inactions—exercised “gross misjudgment” and discriminated against Plaintiffs and similarly situated children by denying them access to essential services and programming that is available to non-disabled students solely on account of their disabilities and/or behaviors related to those disabilities in violation of Title II of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.). 391. Each of the class members has been denied meaningful access to an adequate public education by Defendants.
COUNT IV (as to Defendants FCS and GISD only) Violation of Mich. Comp. Laws § 380.1701 et seq. 392. Plaintiffs re-allege paragraphs 90-348 as though fully set forth herein. 393. Under Michigan law, each child with a disability shall be provided with programs and services designed to develop his or her maximum potential. Mich. Comp. Laws § 380.1711(1)(a). 394. By failing to provide a free and appropriate public education, Defendants have, a fortiori, failed to meet their obligations under Michigan law to
127

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 128 of 133 Pg ID 128
provide children with programs designed to reach the higher threshold of developing the maximum potential of each child.
DEMAND FOR RELIEF 395. WHEREFORE, Plaintiffs request that this Court: A. Assert jurisdiction over this matter; B. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2). C. Issue a declaratory judgment that Defendants’ laws, policies, practices, procedures, acts, and omissions complained of herein deprive Plaintiffs of their statutory rights, are illegal and/or invalid, and contravene Defendants’ statutory duties to ensure that Plaintiffs and similarly situated children receive access to a free appropriate public education and freedom from disability-based discrimination associated with disability-related behaviors; D. Issue a declaratory judgment that “other health impairments” under IDEA gives rise to an affirmative duty to conduct testing and enhanced screening of all children ages 3-5 and all those attending, or who may attend, FCS for elevated blood levels and a determination as to whether the child is eligible for special education services. E. Order Defendants to take action to address the public health crisis caused by the lead-contaminated water by (1) ensuring that all children living in Flint who
128

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 129 of 133 Pg ID 129
are attending or may attend FCS receive appropriate enhanced educational screening to identify any physical (including hearing and vision), social, emotional, learning, and behavioral needs; (2) identifying appropriate mitigation measures to address the physical, social, emotional, learning, and behavioral needs of each child and implementing such measures with fidelity; (3) ensuring that every public school has sufficient qualified personnel to evaluate and complete IEPs, including nurses; (4) implementing electronic medical recordkeeping within each school to track medical records, disciplinary records, attendance records, IEPs and progress reports; (5) implementing a Multi-Tiered Support System to enable a district-wide Positive Behavioral Intervention System to track the academic and behavioral needs of all students while implementing a “Positive School Climate Project” for all children within FCS; and (6) informing the public of the availability of these services and producing quarterly reports summarizing the results of these imperatives.
F. Order Defendants MDE and GISD to test the water supply for lead levels in the water supply in each FCS and GISD school facility located within Flint zip codes found to have elevated levels of lead on a regular basis and issue quarterly reports on progress.
G. Order Defendants to implement a universal, high-quality preschool program for all children aged 3-5 in Flint.
129

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 130 of 133 Pg ID 130
H. Order Defendants MDE and GISD to provide teacher training in positive behavioral interventions and end the practice of restraint and seclusion.
I. Order a review of all current IEPs to ensure compliance with the IDEA in order to provide each student with a free appropriate public education in the least restrictive environment possible, order Defendants to prepare quarterly reports on IEP progress, and order Defendants to devise an effective complaint process to handle and resolve IDEA violations with meaningful oversight.
J. Convene an expert group to evaluate the provision of special education services as mandated by law, identify corrective measures that address the medical, health, and trauma issues that result from lead exposure and that can be adopted by this court, and recommend a special monitor to ensure implementation of a plan including but not limited to:
i. Identification: Allocate responsibility for identifying, locating and evaluating individuals suspected of having a disability attending FCS schools, including individuals who are not currently enrolled in school, detained in a juvenile detention center or adult correctional facility in Flint; and/or housed in a public or private hospital, institution or other health care facility in Flint;
ii. Health Care: Address ways in which access to health care can be improved for all children attending the FCS schools and ensure adequate
130

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 131 of 133 Pg ID 131
training, protocol, and implementation of crisis intervention plans for healthcare emergencies;
iii. Discipline: Review the code of conduct and/or discipline policy for compliance with the IDEA, require that each FCS school contain a written description of the IDEA’s disciplinary procedural protections and procedural safeguards for students with disabilities and a plan for supporting school behavior and discipline. Each FCS school’s plan will be monitored on a quarterly basis and the rates of suspensions and expulsions will be accurately recorded.
iv. Professional Development: Provide annual professional development to all FCS schools on disciplinary procedures for students with disabilities and on best practices to reduce suspensions and expulsions for students with disabilities.
v. Enrollment: Ensure that all FCS schools enroll and serve students with disabilities pursuant to federal law. K. Assign a Special Monitor for a period of seven years to oversee implementation of the expert recommendations within one year and to continue to monitor the implementation of those recommendations for the entire seven year period.
131

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 132 of 133 Pg ID 132

L. Award Plaintiffs costs and attorneys’ fees pursuant to 29 U.S.C. § 794a

and 20 U.S.C. § 1415(i)(3)(B)(i)(I);

M. Retain jurisdiction over this action until such time as this Court is

satisfied that the unlawful laws, policies, practices, procedures, acts, and omissions

complained of herein have been rectified; and

N. Grant other appropriate relief as this Court deems just and proper.

Respectfully submitted,

By: /s/ Gregory G. Little

Kary L. Moss (P49759) Kristin L. Totten (P72942) Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) ACLU Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6800 kmoss@aclumich.org ktotten@aclumich.org dkorobkin@aclumich.org msteinberg@aclumich.org
David G. Sciarra Jessica Levin Education Law Center 60 Park Place, Suite 300 Newark, NJ 07102 (973) 624-1815 dsciarra@edlawcenter.org jlevin@edlawcenter.org

Gregory G. Little Lindsay M. Heck Walter Ciacci Dominique Forrest Laura Grai 1155 Avenue of the Americas New York, NY 10036-2787 (212) 819-8200 gregory.little@whitecase.com lindsay.heck@whitecase.com walter.ciacci@whitecase.com dominique.forrest@whitecase.com laura.grai@whitecase.com
Counsel for Plaintiffs

Dated: October 18, 2016 132

2:16-cv-13694-AJT-APP Doc # 1 Filed 10/18/16 Pg 133 of 133 Pg ID 133
133

 
 2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 1 of 12 Pg ID 1607

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D.R., a minor child, et al.,

Plaintiffs, v.

Case No. 2:16-cv-13694 District Judge Arthur J. Tarnow Magistrate Judge Anthony P. Patti

MICHIGAN DEPARTMENT OF EDUCATION, et al.,

Defendants. ___________________________________/
OPINION AND ORDER GRANTING GENESEE AND MDOE’S MOTIONS (DE 35 AND 37) and GRANTING IN PART AND DENYING IN PART FLINT’S MOTION TO STAY DISCOVERY (DE 36)
This matter is before the Court for consideration of Defendant Genesee

Intermediate School District’s (“Genesee”) motion to stay discovery (DE 35), Flint

Community Schools’ (“Flint”) motion to stay discovery until resolution of pending

dispositive motions or, in the alternative, for protective order (DE 36), and the

Michigan Department of Education’s (“MDOE”) motion for protective

order/request for stay of discovery pending outcome of pending dispositive and

jurisdictional motions (DE 37), Plaintiffs’ response in opposition (DE 41), Flint’s

reply (DE 43), and the parties’ joint list of unresolved issues (DE 45). This matter

came before me for a hearing on August 17, 2017, at which all parties appeared

through counsel. For the reasons that follow, MDOE and Genesee’s motions are

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 2 of 12 Pg ID 1608
GRANTED and Flint’s motion is GRANTED IN PART AND DENIED IN PART. I. BACKGROUND
Plaintiffs filed their 133 page, 395 paragraph complaint in this action on October 18, 2016, bringing four claims under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”): (1) failure to develop and implement child find procedures; (2) failure to provide a free, appropriate public education that confers a meaningful educational benefit in the least restrictive environment; (3) failure to protect students’ due process procedural safeguards in the disciplinary process; and (4) discrimination on the basis of disability and denial of access to educational services. Plaintiffs also bring claims under the Rehabilitation Act, the Americans with Disabilities Act, and Michigan state law. (DE 1.) In December 2016, all Defendants filed motions to dismiss, asserting that the Court was without subject matter jurisdiction to hear the case because Plaintiffs failed to exhaust their administrative remedies under IDEA. (DE 22, 23, and 25.) Those motions are fully briefed and awaiting the Court’s review.
On February 28, 2017, the parties appeared before Judge Tarnow for a status conference. In the minute entry for the status conference, Judge Tarnow noted that counsel were “to discuss preliminary discovery and the possibility of settling some of the claims . . . .” (Minute entry, Feb. 28, 2017.) Defendants filed the instant
2

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 3 of 12 Pg ID 1609
motions in July, after being served with Plaintiffs’ first set of discovery requests. They ask the Court to stay discovery pending resolution of the jurisdictional motions to dismiss, or, in the alternative, enter a protective order limiting Plaintiffs’ broad discovery requests. II. ANALYSIS
A. The court will not impose a complete stay on discovery. 1. The discovery requests are not premature.
Defendants first argue that Plaintiffs’ discovery requests are premature because they were made prior to a conference under Federal Rule of Civil Procedure 26(f). Pursuant to Rule 26(d), “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).” This argument is unavailing, because, as Plaintiffs explain, Judge Tarnow’s practice guidelines specify that he “does not enforce the stay of discovery contemplated by Rule 26(d) pending the conference contemplated by Rule 26(f).” Practice Guidelines for Arthur J. Tarnow, Discovery, available at https://www.mied.uscourts.gov/index.cfm?pageFunction=chambers&judgeid=17 (last viewed August 18, 2017). Moreover, as indicated in the Court’s minute entry following the parties’ February 28, 2017 status conference, Judge Tarnow instructed the parties to “discuss preliminary discovery,” even with the knowledge that the motions to dismiss were then pending. (Minute entry, Feb. 28, 2017.) As
3

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 4 of 12 Pg ID 1610
such, I conclude that the Court contemplated that some form of discovery would occur prior to the conference under Rule 26(f) and find no reason to impose a stay on the basis of prematurity.
2. A complete stay is not warranted. In any action, the Court must construe the Federal Rules of Civil Procedure to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Here, there is a tension between allowing discovery now, to ensure a “speedy” disposition, and staying it, so as to foster “inexpensive determination” of the pending jurisdictional motions. Neither party contends that the proposed discovery would shed light on the jurisdictional issues before the Court, although both parties conceded at oral argument that “[t]rial courts have broad discretion and inherent power to stay discovery until preliminary questions that may dispose of the case are determined.” Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). Staying discovery until jurisdictional motions are resolved can be an efficient way to reduce or eliminate any unnecessary usage of resources. See Harlo v. Fitzgerald, 457 U.S. 800, 818 (1982) (staying discovery until the “threshold immunity question [was] resolved.”). However, a complete stay is not warranted in this matter, despite the pending jurisdictional motions to dismiss.
4

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 5 of 12 Pg ID 1611
I am persuaded by Plaintiffs’ argument that the Court anticipated some preliminary discovery in this matter, as evidenced by Judge Tarnow’s practice guidelines, his notation that preliminary discovery should be discussed, and the fact that he made that minute entry after the jurisdictional motions had been filed and fully briefed. In addition, and bearing in mind that all of Plaintiffs’ claims are for equitable relief, Plaintiffs’ assertion that some discovery is appropriate because another school year is beginning is well-taken. As such, I conclude that some limited discovery is warranted, even while the jurisdictional motions are pending.
B. The court will limit Plaintiffs’ discovery requests. 1. Plaintiffs’ discovery requests are relevant to Flint.
As Defendants correctly point out, nearly all of Plaintiffs’ discovery is related to “Student Assistance Teams” (“SAT”). Specifically, Plaintiffs explain that they have received information indicating that Flint requires an SAT review before students can be evaluated for a suspected disability, and that there is a “quota” (DE 41 at 6, 10)--defined in Black’s Law Dictionary (9th ed.) as a “quantitative restriction; a minimum or maximum number,” in this context a maximum number--on the number of SAT meetings per month, thereby potentially limiting the number of students who are screened for disability. However, there is no reference to “Student Assistance Team,” “SAT,” any combination of the words,
5

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 6 of 12 Pg ID 1612
or the word “quota” in the complaint. This seems remarkable in light of Plaintiffs’ present argument that SAT is at the heart of their suit, not to mention the near abandonment of notice pleading and Rule 8’s requirement of “a short and plain statement of the claim” in favor of the fact pleading exhibited in their complaint. Fed. R. Civ. P. 8(a)(2).
Nevertheless, the information seems to be relevant to Plaintiffs’ claims related to the “child find” process. The “child find” process requires that children with disabilities be “identified, located, and evaluated” and that “a practical method [be] developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” 20 U.S.C. § 1412(a)(3). If it is true that an SAT must determine whether a child can be evaluated for a suspected disability (which Flint emphatically denies), then that would be part of the district’s child find process, which is mentioned frequently in Plaintiffs’ complaint. Moreover, determining whether there is a “quota” system in place could be one way of proving Plaintiffs’ theory under its IDEA claim. See Wysong v. Dow Chem. Co., 503 F.3d 441 (6th Cir. 2007) (finding the district court’s approach in granting summary judgment to be “overly rigid,” because the plaintiff was not asserting a new claim, but merely a new theory under her original claim). As such, I conclude that some discovery into this area is relevant and timely, although it is rightfully curtailed until the jurisdictional
6

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 7 of 12 Pg ID 1613
motions have been decided.1 However, as it is currently proposed, the requests are
overbroad and out of proportion to the needs and posture of the case, as addressed
below.
2. Plaintiff’s discovery requests are not proportional.
Pursuant to Rule 26, parties may obtain discovery on any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Here, Plaintiffs’ discovery directed at learning more
about the SAT process seems important to “resolving the issues.” Id. In sum,
Plaintiffs could either learn that there is a quota system, thus advancing their
claims under IDEA, or that there is not, and therefore other theories should be
pursued. Knowing whether the quota system theory has any merit may also help to
clarify reasonable settlement positions.
However, the importance of this discovery wanes with respect to
Defendants MDOE and Genesee. The discovery requests to the MDOE involve
SATs, but the requests directed to Flint, the only defendant shown to be utilizing
1 The Court makes no definitive ruling at this time as to the propriety of the discovery requests which will be effectively stayed by this order, although it observes that several of them appear to be overbroad as written and cautions Plaintiffs that they may well be in violation of Fed. R. Civ. P. 33(a)(1), as argued by Defendants.
7

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 8 of 12 Pg ID 1614
and setting the policy for SATs directly at issue here, are of more importance to the case. Likewise, Genesee’s counsel stated on the record at the hearing that it does not use SATs, and Plaintiffs make no showing otherwise. III. ORDER
Accordingly, discovery directed at Defendants MDOE and Genesee is out of proportion to the needs of the case at this time, and, in light of their pending motions to dismiss on jurisdictional grounds, their motions to stay discovery are GRANTED. (DE 35 and 37.).
As to Flint, its motion to stay discovery is GRANTED IN PART AND DENIED IN PART. (DE 36.) The following limited discovery will be permitted prior to the Court’s resolution of the pending motions to dismiss. If the motions are denied and the Court retains jurisdiction over this matter, discovery will proceed pursuant to Judge Tarnow’s scheduling order, the Federal Rules of Civil Procedure and the Local Rules of this District. The Relevant Time Periods for all responses are the 2015/2016 and 2016/2017 school years.
Within THIRTY DAYS OF THE DATE OF THIS ORDER, Flint must respond to the following discovery requests, as modified herein, in accordance with Fed. R. Civ. P. 33:
Int. 2: For the Relevant Time Period, identify the members of the Building Learning Support Services (“LSS”) Ancillary Teams at a representative
8

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 9 of 12 Pg ID 1615
sampling of three schools (one elementary, one middle, and one high school), as chosen by Plaintiffs, and describe the role(s) of these Building LSS Ancillary Teams, including without limitation the full process that such teams follow when reviewing and considering a student’s case.
Int. 6: For the Relevant Time Period, identify for a representative sampling of three schools (one elementary, one middle, and one high school), as chosen by Plaintiffs: (a) the constitution and members of the SAT; (b) the frequency of SAT meetings at the school; (c) the process by which a typical student’s case is, or was, slated for consideration by the SAT at the school, including the source of the request or referral for an evaluation or SAT meeting and the role of the school administrators such as school principals in this process; (d) the amount of time that students at the school must wait for an SAT meeting from the time that the referral or request for evaluation or SAT meeting was made; (e) how long the SAT at the school typically spends considering the case of each child who secures a meeting; and (f) the role of any FCS personnel, including but not limited to the members of the SAT, the building school psychologist, the Building LSS Ancillary Team, and administrators such as school principals, who must give permission and/or clearance and/or recommend an evaluation before an evaluation for special
9

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 10 of 12 Pg ID 1616
education eligibility can proceed, including when the request or referral is made by any source other than a parent and/or guardian.
Int. 7: Identify the FCS district-wide policies, practices, and procedures with respect to how SAT resources, including the personnel constituting the SAT, are allocated, and, if these vary from school to school, identify the same for three schools (one elementary, one middle, and one high school) of Plaintiff’s choosing.
Int. 9: For three representative schools of Plaintiffs’ choosing (one elementary, one middle, and one high school), identify how initial and/or follow-up SAT meetings are scheduled, and set forth the policies, practices, and procedures for that school for allocating available SAT meeting slots.
Int. 13: For the Relevant Time Period, identify all of the students who have been evaluated for the first time and/or who have received an SAT meeting for the first time at the middle or high school level at one middle school or high school of Plaintiffs’ choosing. [Note that identifiers other than student names are acceptable, as long as each student can be properly differentiated].
10

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 11 of 12 Pg ID 1617
Int. 14: Identify the FCS Birth to 5 Coordinator and describe his or her role with respect to coordinating child find activities in the FCS schools during the Relevant Time Period. Within 60 DAYS OF THE DAYS OF THIS ORDER, Flint must produce Melinda Carroll, who was identified during the hearing as the person most knowledgeable about Flint’s SAT procedures, for a limited deposition on this topic, without prejudice to re-deposing her on a broader range of topics should the case survive the pending dispositive motions. Finally, Defendants’ requests for fees or costs are DENIED. As to Flint, pursuant to Federal Rule of Civil Procedure 37, if a motion to compel is granted in part and denied in part, the Court may apportion reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(C). Here, both sides’ positions were substantially justified and required rulings from the Court. In addition, neither Plaintiffs nor Flint fully prevailed, and an award of costs would be unjust under the circumstances. As to MDOE and Genesee, where a motion is granted the court “must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses” unless, among other reasons, “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(iii). Here, I conclude that because of Judge Tarnow’s practice
11

2:16-cv-13694-AJT-APP Doc # 46 Filed 08/24/17 Pg 12 of 12 Pg ID 1618
guidelines, as well as the February 28, 2017 minute entry, Plaintiffs were substantially justified in assuming that some early discovery was appropriate and motion practice was necessary to determine the issues. Under these circumstances, an award of expenses would be unjust. Accordingly, no costs are awarded to these defendants.
IT IS SO ORDERED.

Dated: August 24, 2017

s/Anthony P. Patti
Anthony P. Patti UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Notice was served upon the parties and/or counsel of record on this date by electronic and/or first class mail.

s/ Lisa C. Bartlett for Michael Williams Case Manager

12

 
 2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 1 of 26 Pg ID 1620

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D.R. ET AL.,

Case No. 16-13694

Plaintiffs, v.

SENIOR U.S. DISTRICT JUDGE ARTHUR J. TARNOW

MICHIGAN DEPT. OF ED., ET AL.,
Defendants. /

U.S. MAGISTRATE JUDGE ANTHONY P. PATTI

ORDER DENYING DEFENDANT MDE’S MOTION TO DISMISS [23]; DENYING DEFENDANT GISD’S MOTION FOR JUDGMENT [25]; GRANTING IN PART AND
DENYING IN PART DEFENDANT FCS’S MOTION TO DISMISS [22] Plaintiffs filed a class action civil rights action against Defendants Flint Community Schools (FCS), Genesee Intermediate School District (GISD), and Defendant Michigan Dept. of Ed. (MDE) on October 18, 2016. They alleged systemic violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; discrimination based on disability in violation of § 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794; Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq.; and violations of M.C.L. § 380.1701. Defendants FCS and MDE filed Motions to Dismiss on December 8, 2016 [22, 23], and Defendant GISD filed a Motion for Judgment [25] on December 15, 2016. Defendants FCS and MDE filed replies [32, 33] on January 3, 2017.
Page 1 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 2 of 26 Pg ID 1621
Plaintiff responded [29] to these Motions on January 13, 2017. Defendant GISD filed a reply [31] on January 27, 2017. A hearing was held on these Motions on August 23, 2017.
For the reasons stated below, Defendant MDE’s Motion to Dismiss [23] and Defendant GISD’s Motion for Judgment [25] are DENIED without prejudice. Defendant FCS’s Motion to Dismiss [22] is GRANTED in part as to Defendant’s request to dismiss the claim for universal preschool, and DENIED in part as to the remainder of Defendant FCS’s Motion to Dismiss.
BACKGROUND The proposed class is made up of the approximately 30,000 school-age children in Flint, Michigan at risk of developing a disability as a result of the elevated levels of lead in the drinking water. Against all Defendants, Plaintiffs bring claims of systemic violations of the Individuals with Disabilities Education Act (IDEA), specifically alleging: failure to develop and implement child find procedures; failure to provide free appropriate public education that confers a meaningful educational benefit in the least restrictive environment; failure to protect students’ due process procedural safeguards in the disciplinary process; discrimination on the basis of disability and denial of access to educational services. Plaintiffs also allege that all Defendants have discriminated based upon disability in violation of § 504 of the Rehabilitation Act (§ 504) and in violation of
Page 2 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 3 of 26 Pg ID 1622
Title II of the Americans with Disabilities Act (ADA). As to Defendants FCS and GISC only, Plaintiffs allege violation of MCL § 380.1701 as a result of a failure to provide programs and services designed to develop each disabled child to their maximum potential. The individual facts pertaining to the representative Plaintiffs are found in the complaint at ¶¶ 90-348.
Plaintiffs’ claims are all focused around requirements established by the IDEA. The IDEA provides federal money to help states educate children with disabilities. To qualify for this assistance, a state education agency (SEA) must demonstrate that it has policies and procedures in place that assure all children with disabilities in the state have access to a free appropriate public education (FAPE) in the least restrictive environment (LRE), tailored to the unique needs of each child through an individualized education program (IEP). See 20 U.S.C. § 1412(a)(1), (2), (4). The LRE is defined as follows: “[t]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A).
Page 3 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 4 of 26 Pg ID 1623
The IDEA also provides that “[a] State funding mechanism shall not result in placements that violate the [LRE requirements], and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability a free appropriate public education according to the unique needs of the child as described in the child’s IEP.” 20 U.S.C. § 1412(a)(5)(B).
LEGAL STANDARD Defendants MDE and FCS move to dismiss the complaint under Rules 12(b)(6) and 12(b)(1). On a Rule 12(b)(6) motion to dismiss, the Court must “assume the veracity of [the plaintiff’s] well-pleaded factual allegations and determine whether the plaintiff is entitled to legal relief as a matter of law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to provide fair notice to the defendant of what the claim is and the grounds upon which it rests. The Court must construe the complaint in the light most favorable to the Plaintiff and draw all reasonable inferences in the plaintiff’s favor. Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829,
Page 4 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 5 of 26 Pg ID 1624
835 (6th Cir. 2012). The complaint must plead factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
It is currently unsettled in the Sixth Circuit whether a failure to exhaust administrative remedies is properly considered under Rule 12(b)(6) or Rule 12(b)(1). Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 F. App’x 423, 431 (6th Cir. 2016). However, the Sixth Circuit has indicated that the distinction makes no difference in cases where there is no dispute as to the exhaustion-related factual findings. See id. Since it is undisputed that Plaintiffs did not exhaust, the Court will use the 12(b)(6) standard to resolve the exhaustion claims.
Rule 12(b)(1) mandates dismissal for “lack of jurisdiction over the subject matter.” Damnjanovic v. United States Dep’t of Air Force, 135 F. Supp. 3d 601, 603 (E.D. Mich. 2015). Whether Article III’s case or controversy requirement is satisfied is a jurisdictional issue to be considered under Rule 12(b)(1).
Defendant GISD brings its Motion to Dismiss under Rule 12(c). “Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6).” Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008).
Page 5 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 6 of 26 Pg ID 1625
ANALYSIS Defendant FCS brings a Motion to Dismiss [22] on the basis of failure to exhaust, asserting there is no case or controversy regarding hearing, vision, or lead blood screenings that are already provided through the public health department; and that there is not a valid claim for universal preschool. Defendant GISD brings a Motion for Judgment [25], based upon a failure to exhaust, and further claims that Plaintiffs’ state law cause of action is barred because Michigan does not recognize claims that sound in medical malpractice. Finally, Defendant MDE brings a Motion to Dismiss [23], based upon a failure to exhaust, 11th Amendment immunity for the ADA claim, lack of standing, and a failure to state a claim for which relief may be granted. 1. FAILURE TO EXHAUST [22, 23, 25] All Defendants argue that Plaintiffs’ claims must be dismissed for failure to exhaust administrative remedies as required under the IDEA. Plaintiffs respond that exhaustion is not required because it would be futile in this case since the alleged systemic violations of IDEA cannot be remedied through the administrative process. As an initial point, these arguments were made prior to the United States Supreme Court’s decision in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017), which held that plaintiffs must exhaust in suits brought under statutes other than the IDEA if the remedy sought addresses the
Page 6 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 7 of 26 Pg ID 1626
denial of a FAPE. While no supplemental briefs have been submitted that address the relevance of this decision on the exhaustion argument, the complaint unequivocally concerns the alleged failure to provide a FAPE, and therefore the exhaustion requirement of § 1415(l) still applies to all claims, as originally argued by Defendants.1
It is clear from the plain language of the IDEA that exhaustion of administrative remedies is required before a party may file a suit under the act in federal court. Covington v. Knox County Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000). The two principle exceptions to this requirement of exhaustion of administrative remedies are where the administrative procedures “would be futile or inadequate to protect the plaintiff’s rights,” or where “plaintiffs were not given full notice of their procedural rights under the IDEA.” Id. at 917. Courts have applied the futile or inadequate exceptions to exhaustion when plaintiffs seek relief that is not otherwise available through the administrative process, i.e. allegations of “structural or systemic failure.” Jackie S. v. Connelly, 442 F. Supp. 2d 503, 518 (S.D. Ohio 2006) (citations omitted).
1 At the end of the hearing, Defendant FCS argued that the Fry decision mandated exhaustion if the complaint concerned a FAPE, seemingly arguing that because of this decision, Plaintiffs must exhaust and cannot be excused. There is nothing to suggest that the Supreme Court in Fry did away with exceptions to exhaustion in cases concerning a FAPE. The issue decided in that case considered artful pleading of claims concerning a FAPE under statutes other than IDEA, in order to avoid the exhaustion requirement. There was no discussion of exceptions to exhaustion, and certainly no indication that the case had any impact on existing and established case law surrounding exceptions to exhaustion under IDEA.
Page 7 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 8 of 26 Pg ID 1627
It is undisputed that Plaintiffs have not properly exhausted, and that they
were given actual notice of the procedural rights. However, Plaintiffs argue that the systemic exception applies to excuse their lack of exhaustion.2 While the Sixth
Circuit has not expressly adopted this exception, nor explicitly defined the futility
exception for systemic claims, courts around the country have accepted this excuse
with varying parameters. See Doe v. Arizona Dep’t of Educ., 111 F.3d 678, 682
(9th Cir. 1997) (systemic claim involves allegations concerning system-wide issues
requiring wholesale structural reform); see also J.S. v. Attica Cent. Schs., 386 F.3d
107 (2d Cir. 2004) (plaintiffs alleged system-wide problems when the “framework
and procedures for assessing and placing students in appropriate educational
programs were at issue, or because the nature and volume of complaints were
incapable of correction by the administrative hearing process.”).
Plaintiffs direct the Court to three cases they believe support the conclusion
that they should be excused from exhaustion for alleging systemic violations. In
the first case, J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 114 (2d Cir.
2 Plaintiffs also rely upon an emergency exception. This exception has never been recognized by the Sixth Circuit, or any district courts within the circuit. Further, the interpretations of such an exception by other courts suggest that the facts of this case would not justify a finding of an emergency exception because of the evidence before the Court. See, e.g., Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000) (citation omitted) (requiring plaintiffs to provide evidence that the child faces irreversible damage if the relief is not granted). Plaintiffs merely state that the ongoing water crisis is an emergency that is “certain to cause Plaintiffs severe and irreparable harm if they are not able to seek relief now.” [29 at 25]. While the Court acknowledges and appreciates the severity of the situation in Flint, the conclusory nature of this pleading and argument does not support an emergency exception.
Page 8 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 9 of 26 Pg ID 1628
2004), the plaintiffs were found to have alleged systemic violations under the IDEA. In that case, the Court surveyed applicable precedent and concluded that the common element in systemic cases was that:
[T]he plaintiffs’ problems could not have been remedied by administrative bodies because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process. Id. at 114. Importantly, “[i]f each plaintiff had been forced to take his or her claim before a hearing officer and appeal to another local or state official, there would have been a high probability of inconsistent results,” and the administrative record would not have been of “substantial benefit” to the Court. Id. Therefore, the Second Circuit panel found that the plaintiffs’ challenges to the School District’s failures to: prepare and implement IEPs, provide appropriate training to staff, perform timely evaluations and reevaluations, provide parents with procedural safeguards related to identification and evaluation of children with disabilities, and perform legally mandated responsibilities in a timely matter, represented systemic allegation because the challenge was not to the individual IEPs of the various plaintiffs, but rather to the School District’s “total failure to prepare and implement [IEPs].” Id. at 115. This case was factually similar to the pending matter. Here, Plaintiffs are seeking systemic relief in the form of injunctive relief on behalf of a large class.
Page 9 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 10 of 26 Pg ID 1629
The challenge is to the very framework and processes that the school district undertakes for every child, rather than individuals contesting their IEPs. The Court agrees with the logic in J.S. that challenges such as these are incapable of correction in the individual administrative exhaustion procedure, and instead, are of a systemic nature that is properly addressed by the Court.
The remaining two cases proffered by Plaintiffs to support their position are recent decisions by district courts in this circuit: W.H. by & through M.H. D.R. v. Tennessee Dep’t of Educ., No. 3:15-1014, 2016 WL 236996 (M.D. Tenn. Jan. 20, 2016); and N.S. v. Tennessee Dep’t of Educ., Knox Cty. Bd. of Educ., No. 3:16-CV0610, 2016 WL 3763264 (M.D. Tenn. July 14, 2016). Motions to dismiss were denied in both because the Court found that the plaintiffs had alleged systemic violations rendering exhaustion futile.
W.H. concerned allegations that the school district and the SEA “denied LRE placements and placed [plaintiffs] in more segregated settings than necessary.” W.H., 2016 WL 236996, at *2. N.S. challenged the misuse and overuse of isolation and restraint techniques on children with disabilities. N.S., 2016 WL 3763264 at *1.
In these cases, the courts considered the allegations to be systemic because the plaintiffs were not requesting that the court individually determine the plaintiffs’ educational needs, the very subject of an administrative review; but
Page 10 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 11 of 26 Pg ID 1630
rather, were raising the question of whether the School District, in meeting the
plaintiffs’ educational needs, employed practices that caused the plaintiffs to be
placed in more restrictive environments than necessary. Id. at *10. These claims
were distinct from the local-level evaluation of the plaintiffs’ individual needs, as
demonstrated by the fact that the plaintiffs were not seeking individual relief, but
rather, injunctions mandating systemic reforms to the school district policies and
practices. Id.
Thus, in N.S., the Court held that the plaintiffs were challenging systemic
violations because the complaint contained:
. . . specific examples of actions taken by the defendants (the use of “time out” terminology to replace “isolation” at the local level, instructions not to collect certain types of data at the state level), specific incidents that should have made the defendants aware of a problem (publicized events involving the use of “timeouts,” a disproportionate number of incidents of isolation and restraint in KCS as compared to other school districts), evidence that the problem is widespread (although there are only two plaintiffs, they attended a number of schools throughout KCS), and specific state statutory mandates that the defendants have allegedly failed to uphold . . . .
Id. This established the systemic nature of the claims, and further placed
Defendants on notice that systemic problems were on-going within the School
District and subject to broad-based legal challenge. Id.
In this case, Plaintiffs seek systemic change within the School District’s
policies to ensure compliance with state and federal law. The complaint alleges
four systemic violations: failure to develop and implement child find procedures;
Page 11 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 12 of 26 Pg ID 1631
failure to provide a free appropriate public education that confers a meaningful educational benefit in the least restrictive environment; failure to protect students’ procedural due process protections in the disciplinary process; and discrimination on the basis of disability with accompanying denial of access to educational services.
Similar to N.S., Plaintiffs here have alleged specific facts relating to incidents and publicized statistics showing disproportionate incidents of suspension of students with IEPs, thus providing the proof of similar allegations in the complaint. For example, the complaint states, “[i]n 2014-2015, 13.59% of special education students in FCS were suspended or expelled for more than ten days- more than five times the statewide suspension/expulsion rate of 2.48%.” Compl. at ¶ 80. Additionally, Plaintiffs identify specific incidents that have occurred broadly across FCS, also lending credence to the application of the systemic exception here.
Defendants argue that they should have a chance to address these problems in the context of administrative proceedings. However, they do not explain how these allegations concerning the very core of the manner that the School District functions on a daily basis, implementing state and federal law could successfully be resolved in an administrative context. Further, because the class contains all
Page 12 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 13 of 26 Pg ID 1632
children in the School District, the time required for all of those affected to seek and obtain administrative consideration would be prohibitive and punitive.
Defendants also fail to demonstrate how the record of the administrative proceedings would benefit the Court in this case, yet another factor favoring a decision that these claims fall under the systemic exception to the exhaustion requirement. At the hearing, Defendant FCS conferred with individuals that were in the Courtroom, including the distributor of learning support services, and indicated that there have been two students who taken up administrative appeals. This does not support an argument that exhaustion is readily available, or that the system is functioning properly, and instead points to systematic problems given the facts alleged in the complaint surrounding the representative Plaintiffs and the high percentage of children in FCS qualifying under IDEA for IEPs.
Defendants also argue that because the complaint only alleges violations by FCS, and does not concern purported state-wide violations, the claims cannot be characterized as systemic in nature. See Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1305 (9th Cir. 1992). However, the decision is not as persuasive as decisions from the 3rd Circuit, 2nd Circuit, and 10th Circuit. See M.A. v. State Operated Sch. Dist. of Newark, 344 F.3d 335, 343 (3d Cir. 2003); Jose P. v. Ambach, 669 F.2d 865, 869-70 (2d Cir. 1982); New Mexico Ass’n for Retarded Citizens v. N.M., 678 F.2d 847, 851 (10th Cir. 1982). Moreover, the violations
Page 13 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 14 of 26 Pg ID 1633
challenged here pose a unique risk to children in FCS, requiring IEPs addressing prolonged lead exposure. Therefore, the Court concludes that these claims are unique to the FCS, and that it is difficult to understand how a statewide systemic violation could exist, since the dangerously polluted water exists as a systematic threat only to the children of the Flint community.
It is clear from Plaintiffs’ complaint that the remedy they are seeking is a systemic change in the very way that Defendants identify, place, and educate all children in the Flint School District. The relief they are seeking is plainly not individual and could not be remedied by individual exhaustion since Plaintiffs are challenging the very efficacy of the system employed within the Flint District. Further, the representative Plaintiffs have emphatically illustrated that the alleged violations are widespread across the Flint schools and repetitive in nature. Thus, these systemic violations cannot be adequately exhausted through the administrative procedure and the systemic violation exception applies.
2. STANDING TO BRING CASE AGAINST MDE UNDER IDEA, TITLE II AND § 504 [23] Defendant MDE argues that, as against MDE, Plaintiffs cannot establish an
injury in fact, causation, or redressability. First, Defendant MDE argues that the claims asserted against it, i.e. that they failed to provide the appropriate monitoring, oversight, resources, and expertise required to help the local Defendants comply with the IDEA, are merely procedural and therefore not
Page 14 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 15 of 26 Pg ID 1634
actionable under the IDEA. See D.S. v Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010) (citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007)). A procedural violation of the IDEA is actionable “if it results in a loss of educational opportunity…or causes a deprivation of educational benefits.” D.S. v Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010). Plaintiffs’ complaint contains many specific allegations that MDE’s failure to monitor and ensure that adequate remedial services are timely provided has caused a loss of educational opportunity and deprivation of educational benefits. Therefore, the court finds Defendant’s argument unpersuasive.
Defendant also cites authority purportedly establishing that there is no standing here because they were never placed on notice that each child was not receiving a FAPE. However, the cases that Defendant cites are not binding and deal with a failure to exhaust. Since the failure to exhaust has been excused, these cases are inapposite.
Defendant further argues that Plaintiffs have merely raised generalized complaints, has failed to establish causation, and does not state a separate, redressable injury, since redressability is dependent on other actors, including the local Defendants and parents. To the contrary, the complaint contains many specific alleged violations of IDEA, § 504, and the ADA. These allegations also demonstrate injuries in fact occurring as a result of these violations. Specifically, it
Page 15 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 16 of 26 Pg ID 1635
is alleged that MDE failed to provide the local Defendants with sufficient funding and support to enable it to meet the requirements of the IDEA. It is also alleged that their monitoring was inadequate.
As to the asserted causation requirement, there is no need to allege direct causation to establish standing. Rather, a plaintiff’s injuries must be “fairly traceable” to the defendant’s actions. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). An indirect injury does not destroy standing. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 713 (6th Cir. 2015). In this case, the complaint presents allegations of injury caused by the failure of MDE to fulfill its critical statutory obligations under IDEA, § 504, and the ADA, to the children it is responsible for. Considering its direct role in monitoring and ensuring compliance with the IDEA, the alleged injuries are unquestionably the result of Defendant MDE’s actions. See Pachl v. Seagren, 453 F.3d 1064, 1070 (8th Cir. 2006) (SEA “may be responsible for violations of the IDEA when the state agency in some way fail[s] to comply with its duty to assure that the IDEA’s substantive requirements are implemented,” including “systemic violation” of the state’s IDEA responsibilities).
Finally, as to the argument that the injuries are not redressable because the relief depends on other actors to establish standing, Plaintiffs are not required to show that a favorable decision will correct all of the injuries alleged, but rather,
Page 16 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 17 of 26 Pg ID 1636
that a favorable decision is likely to establish at least a partial redress. See Parsons, 801 F. 3d at 716. The requested relief seeks an order requiring MDE to fulfill its obligations to identify and evaluate all children requiring special education through enhanced screening processes, and to provide them with a FAPE, ensuring that IEPs are implemented, and developing effective training and systems to ensure proper disciplinary procedures. It is clear that a favorable ruling on these claims would provide at least a partial redress to the injuries alleged. Moreover, since the local Defendants are parties to this case, there is no argument that other actors, not before the Court, would affect redressability. As for the parents, they have joined in the lawsuit, and there is no reason to believe that their presence would hinder redressability either.
Defendants also argue that Plaintiffs lack standing for the § 504 and ADA claims because they have failed to allege an injury under these acts, as not every proposed member of the class is necessarily disabled and eligible for services under the ADA or § 504. It is asserted that this “hypothetical” injury is not sufficient to establish standing. See Whitmore v Arkansas, 495 U.S 149, 155 (1990). However, this argument ignores the many class members who are currently disabled. There is no argument requiring a finding of a lack of standing for these Plaintiffs, and Defendant does not address this argument in its reply.
Page 17 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 18 of 26 Pg ID 1637
Considering the above, Plaintiffs have standing to bring the IDEA, ADA, and § 504 claims against Defendant MDE.
3. 11TH AMENDMENT IMMUNITY BARS ADA CLAIM AGAINST DEFENDANT MDE [23] Defendant MDE argues that it has Eleventh Amendment immunity as to the
ADA claim. “Congress has expressed an unequivocal desire to abrogate Eleventh Amendment immunity for violations of the ADA.” Babcock v. Michigan, 812 F.3d 531, 534 (6th Cir. 2016). When determining whether the 11th Amendment applies for violations of the ADA, Courts are instructed to:
[D]etermine . . . on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. United States v. Georgia, 546 U.S. 151, 159 (2006). Defendant focuses on the first part of this test that requires the Court to determine “which aspects, if any, of the Defendants’ alleged conduct violated Title II.” Id. at 535. It contends that Plaintiffs have failed to state a claim under Title II of the ADA, and thus immunity must apply. As Plaintiffs point out, the Sixth Circuit has not yet ruled on whether the 11th Amendment is abrogated in the context of public education. However, Plaintiffs correctly point to many other circuits that have found state immunity was
Page 18 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 19 of 26 Pg ID 1638
abrogated in the context of higher public education. See, e.g., Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 555 (3d Cir. 2007); Toledo v. Sanchez, 454 F.3d 24, 40 (1st Cir. 2006); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005); W.H., 2016 WL 236996. In these cases, courts have abrogated 11th Amendment immunity in the context of public education, and applied their reasoning to a claim concerning primary education, seeing no reason why the reasoning in higher education cases should not equally apply to the primary education context.
Defendants have offered no binding or persuasive authority in which a court has held that state immunity is not abrogated in the context of public education. Rather, they proffer a case in which the Court found that there was not a valid ADA claim stated, and ended its analysis there. Babcock, 812 F.3d at 534-35. As a result, the court did not rule on the issue of whether the Eleventh Amendment barred Title II claims. Therefore, the Court is not persuaded to disregard the significant case law abrogating 11th Amendment immunity in the cases concerning public education. Accordingly, 11th Amendment immunity does not apply to Plaintiffs’ ADA claim.
Page 19 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 20 of 26 Pg ID 1639
4. FAILURE TO STATE A CLAIM a. IDEA
Defendants MDE and GISD first argue that Plaintiffs have not stated a valid IDEA claim, asserting first that they have failed to exhaust their claims (an argument resolved above), while also arguing that the claims are too vague, merely containing broad, conclusory allegations. However, Plaintiffs have pled valid claims in their detailed challenges to the policies and practices of the Defendants in a complaint that runs over 130 pages, and have included specific examples illustrating these allegations through the representative Plaintiffs.
Plaintiffs allege that Defendant MDE: “failed to provide necessary resources (Compl. at ¶¶ 4, 16, 365); failed to ensure its public schools complied with IDEA, as required of Defendant by the statute (¶¶ 35, 42, 50, 381); failed to monitor and enforce child-find procedures, as required of Defendant by the IDEA (¶¶ 41, 350); failed to correct FCS and GISD’s ongoing pattern of not providing procedural safeguards nor the expertise and resources required for FCS / GISD to do so themselves (¶ 381); and failed to ensure districts provide a FAPE for Plaintiffs and all similarly situated students with disabilities” (¶ 388). [29 at 52-53]. These allegations are detailed and address claims specific to each Plaintiff, showing that this is a common occurrence across the school district, impacting many children.
Page 20 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 21 of 26 Pg ID 1640
Plaintiffs further assert that: “GSID failed to address sensory and behavioral needs of students in GISD-run schools (¶ 129); failed to provide special education services and evaluation for students with disabilities even when frequently prompted by concerned parents (¶¶ 278, 328, 333, 334, 370); failed to apprise parents of contemplated behavior controlling techniques nor sought their permission for such actions (¶130); failed to assess the extent of lead exposure when conducting reevaluations (¶ 134); failed to screen and issue timely referrals pursuant to IDEA’s child-find requirements (¶ 364); failed to provide procedural safeguards for students with disabilities (¶ 381); engaged in a pattern of unduly harsh disciplinary measures, including physical restraints and seclusion techniques in violation of IDEA (¶ 381); failed to provide students with disabilities the same variety of programs and services offered to non-disabled students (¶ 384); and failed to provide a FAPE to Plaintiffs and similarly situated students with disabilities” (¶ 394). [29 at 53-54]. These specific allegations put Defendants on notice as to the factual basis for the complaint and satisfies the 12(b)(6) standard.
b. TITLE II ADA AND § 504 CLAIMS Defendant MDE argues that Plaintiffs have not alleged Title II ADA and § 504 claims because: some of the class members are not disabled; there is only a disagreement over the level of services provided, not a denial of access; and there
Page 21 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 22 of 26 Pg ID 1641
is no discriminatory animus plead, which is fatal under Title II. Defendant MDE further alleges that the claims are too vague and conclusory to be sustained.
The sufficiency of Plaintiffs’ ADA and § 504 claims will be evaluated together. S.S. v. E. Kentucky Univ., 532 F.3d 445, 452-53 (6th Cir.2008). To state a valid claim under both statutes, Plaintiff must demonstrate that:
(1) The plaintiff is a ‘handicapped person’ under the Act; (2) The plaintiff is ‘otherwise qualified’ for participation in the program; (3) The plaintiff is being excluded from participation in, or being denied the benefits of, or being subjected to discrimination under the program solely by reason of his handicap; and (4) The relevant program or activity is receiving Federal financial assistance. Campbell v. Bd. of Educ. of the Centerline Sch. Dist., 58 Fed. Appx. 162, 165 (6th Cir. 2003). In this Circuit, in the context of FAPE claims, a mere disagreement in FAPE is not sufficient to show discrimination; rather, discriminatory intent must be established by “bad faith or gross misjudgment” in the context of disabled children. Campbell, 58 F. App’x at 167; see also G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 635 (6th Cir. 2013). Plaintiffs have alleged that: “they are not entitled to receive the same variety of programs made available to nondisabled children, (Compl. at ¶¶ 108, 110, 112, 123, 125-26, 184, 209, 259, 261, 301, 384, 387, 391); lack of disability identification repeatedly causes unnecessary segregation and seclusion from the general education environment, (¶¶ 108-10, 144, 148-49, 151, 177, 184, 209, 243,
Page 22 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 23 of 26 Pg ID 1642
273, 290, 301-02); children with disabilities are repeatedly sent home and/or suspended, without the proper documentation required when suspending or sending home Plaintiffs’ nondisabled peers,” (¶¶ 110, 143, 254). [29 at 57].
It is undisputed that there are disabled Plaintiffs. Plaintiffs also allege that children are not being properly assessed and evaluated, so they may well be able to establish that even more are disabled. Again, Defendants fail to show why the fact that some of the class members may not be disabled should cause the entire claim to be dismissed.
Defendants are correct that a mere failure to provide the FAPE as required by the IDEA is insufficient to support a § 504 or Title II ADA claim. However, Plaintiffs have challenged MDE’s professional judgment in oversight of the FCS, and the allocation of necessary resources, and asserted that this has caused discriminatory effects. Whether this judgment rises to the level of gross misjudgment, to qualify as discriminatory, is a question of fact that needs to be developed and brought before a trier of fact to determine. Therefore, as a threshold matter, Plaintiffs have stated a valid claim under § 504 and the ADA.
5. PLAINTIFF’S STATE LAW CLAIM IS NOT FOR EDUCATIONAL MALPRACTICE Defendant GISD argues that Plaintiffs’ state law claim is one for
“educational malpractice,” and as such, is barred, citing decisions that refuse to accept state-law negligence claims “in which a public school is alleged to have
Page 23 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 24 of 26 Pg ID 1643
failed to adequately instruct a student in basic academic skills.” Page v. Klein Tools, Inc., 610 N.W. 2d 900, 903 (Mich. 2000). However, the cases cited by Defendant GISD all alleged negligent instruction, and sought monetary damages. Plaintiffs here bring a claim under M.C.L. § 380.1711(1)(h)m, which addresses the responsibility to oversee and coordinate special education. In Woolcott v. State Bd. of Educ., 351 N.W.2d 601 (Mich. App. 1984), the Court held that students may have a cause of action under M.C.L. § 380.1701, et seq., for declaratory and injunctive relief. Therefore, Defendant’s argument is not valid.
6. STANDING TO SUE FOR FCS FAILURE TO CONDUCT APPROPRIATE SCREENINGS Defendant FCS contends that Plaintiffs lack standing as to their declaratory
and injunctive request seeking hearing, vision, and lead blood testing, because the screenings are currently offered by the county health department. Because these tests are mandated by the Michigan Public Health Code, M.C.L. § 333.9301, which meets the “full individual evaluation” requirements under the IDEA (20 U.S.C. §1414; 34 C.F.R. § 300.304(c)(4); 34 C.F.R. § 300.301(a)), Defendant argues that there is no case or controversy as to this claim, since there is no injury that would be redressed in the case of a favorable outcome for that claim.
As explained at the hearing, these screenings are not presented in all of the schools in the School District. Considering the fact that every child in the School District is exposed to the dangers of lead in the water, the presence of these tests in
Page 24 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 25 of 26 Pg ID 1644
a few schools is not equivalent to the relief Plaintiffs are requesting, that children at all schools in FCS have access to these screenings. Therefore, this claim for relief will not be dismissed.
7. UNIVERSAL PRESCHOOL CLAIM Finally, Defendant FCS argues that the Court should dismiss under Fed. R.
Civ. P. 12(b)(6) the claim seeking universal preschool, because only the state legislature can create such a program, and there is no legal requirement under any of the statutes which Plaintiffs have invoked that provide for this relief. See Michigan Constitution, Article 8, Section 2 (“[t]he legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.”).
Plaintiffs do not respond to any of the arguments presented by Defendant, merely stating in a footnote that the “provision of early interventions including universal preschool is an essential remedy to fulfill Defendants’ obligations regarding child find and the provision of FAPE.” There is no showing that this Court has the power to order the creation of public universal preschool. See, e.g., Leandro v. State, 346 N.C. 336, 357, 488 S.E.2d 249, 261 (1997) (“[T]he administration of the public schools of the state is best left to the legislative and executive branches of government.”). Therefore, this claim for relief is dismissed.
Page 25 of 26

2:16-cv-13694-AJT-APP Doc # 48 Filed 09/29/17 Pg 26 of 26 Pg ID 1645

Accordingly, IT IS ORDERED that Defendant MDE’s Motion to Dismiss [23] and Defendant GISD’s Motion for Judgment [25] are DENIED. IT IS FURTHER ORDERED that Defendant FCS’s Motion to Dismiss [22] is GRANTED in part as to Defendant’s request to dismiss the claim for universal preschool and DENIED in part as to the remainder of Defendant FCS’s Motion to Dismiss. SO ORDERED.

Dated: September 29, 2017

s/Arthur J. Tarnow Arthur J. Tarnow Senior United States District Judge

Page 26 of 26

 
 Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3127 Page 1 of 14

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D.R., as a minor through parent and next friend, DAWN RICHARDSON, ET AL.,
Plaintiffs, v.

Case No. 16-13694
SENIOR U.S. DISTRICT JUDGE ARTHUR J. TARNOW

MICHIGAN DEPARTMENT OF EDUCATION, ET AL.,

U.S. MAGISTRATE JUDGE ANTHONY P. PATTI

Defendants. /

ORDER DENYING DEFENDANTS’ MOTIONS FOR STAY OF PROCEEDINGS [64, 65, 68]; DENYING DEFENDANTS’ MOTION TO ADJOURN [70]

On October 16, 2017, all Defendants filed notices of appeal of the Court’s

Order [48] denying in part Defendants’ motions to dismiss. [Dkt. #55, 57, 59]. On

October 23, 2017, Defendant Michigan Department of Education filed a Motion

for Stay of Proceedings [64] and a Corrected Motion for Stay of Proceedings [65].

On October 24, 2017, Defendant Genesee Intermediate School District filed a

Response [66], concurring in Defendant Michigan Department of Education’s

Motion for Stay and objecting to the Court’s October 3, 2017 [sic] scheduling

order. Also on October 24, 2017, Defendant Flint Community Schools filed a

Motion to Suspend Pretrial Proceedings, Stay Proceedings, or Adjourn Hearing

[68].

Page 1 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3128 Page 2 of 14
The Court held a Status Conference on October 26, 2017. On October 27, 2017, Defendant Michigan Department of Education filed a Motion to Adjourn Dates [70]. On October 30, 2017, Flint Community Schools filed a Notice of Joinder in Motion to Adjourn Dates [71]. Plaintiffs filed a Response [72] to Defendants’ motions on October 30, 2017. On October 31, 2017, Defendant Michigan Department of Education filed a Notice of Joinder/Concurrence in Motion to Adjourn Dates [73]. Defendant Michigan Department of Education filed a Reply [74] on November 1, 2017.
For the reasons stated below, the Court DENIES Defendants’ motions for stay of proceedings. The Court also DENIES Defendants’ motion to adjourn.
BACKGROUND Plaintiffs are school-age children who are at risk of developing disabilities as a result of elevated levels of lead in the drinking water in Flint, Michigan. Plaintiffs bring claims of systemic violations of the Individuals with Disabilities Education Act (IDEA) against all Defendants. On September 29, 2017, the Court entered an Order [48], which, among other things, denied Defendants’ motion to dismiss for failure to exhaust administrative remedies under the IDEA. On October 2, 2017, the Court held a Status Conference. Following discussions at the Status Conference, the Court
Page 2 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3129 Page 3 of 14
scheduled a hearing for December 4, 2017 on Plaintiffs’ Motion for Preliminary Injunction [62].
On October 16, 2017, all Defendants filed Notices of Appeal of the Court’s Order [48]. [Dkt. #55, 57, 59]. Defendants seek to appeal the Court’s ruling that excuses Plaintiffs’ failure to exhaust because they have alleged systemic violations of the IDEA.1
Defendants submit that the Court’s Order [48] denying Defendants’ motion to dismiss for failure to exhaust under the IDEA is immediately appealable because it constitutes a final order under the collateral-order doctrine. Defendants further submit that because filing a notice of appeal divests the district court of jurisdiction, the Court must stay the proceedings pending appeal. Alternatively, should this Court find that it has jurisdiction, Defendants argue that the Court should, in its discretion, grant Defendants’ motions for stay or adjourn the hearing scheduled for December 4, 2017.
Plaintiffs maintain that the Court’s Order [48] denying Defendants’ motion to dismiss for failure to exhaust under the IDEA is not a final order and is therefore non-appealable. Plaintiffs further maintain that the Court need not stay the
1Defendants also appealed the Court’s ruling that Defendant Michigan Department of Education is not entitled to Eleventh Amendment immunity with respect to Plaintiffs’ claim under the Americans with Disabilities Act (ADA). Plaintiffs have since stipulated to dismissal with prejudice of their ADA claim against Defendant Michigan Department of Education. Therefore, this Order does not address Defendants’ appeal on this issue.
Page 3 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3130 Page 4 of 14
proceedings because the filing of a notice of appeal of a non-appealable order does not divest the district court of jurisdiction. Additionally, Plaintiffs argue that the Court should find that neither a stay nor an adjournment of the hearing is warranted.
ANALYSIS The Sixth Circuit has jurisdiction over final decisions of the district courts. 28 U.S.C. § 1291. Generally, the filing of a notice of appeal divests the district court of jurisdiction of aspects of the case involved in the appeal. Griggs v. Provident Consumers Discount Co., 459 U.S. 56, 58 (1982). However, “. . . the district court retains jurisdiction over an action when . . . an appeal [is] from a nonappealable non-final order . . . .” Lewis v. Alexander, 987 F.2d 392, 394-95 (6th Cir. 1993). The purpose of this rule is to prevent litigants from “. . . temporarily depriv[ing] the court of jurisdiction at any and every critical juncture merely by filing a notice of appeal from any non-appealable order entered in district court.” Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir. 1981) (internal quotation marks omitted). Pursuant to the collateral-order doctrine, courts of appeals have jurisdiction over a small class of non-final orders. See Will v. Hallock, 546 U.S. 345, 345-46 (2006) (noting that the “small class” includes orders rejecting absolute, qualified, or Eleventh Amendment immunity). To fall within the doctrine, the order must:
Page 4 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3131 Page 5 of 14
“(1) conclusively determine the disputed question [;] (2) resolve an important issue completely separate from the merits [;] and (3) be effectively unreviewable on appeal from a final judgment.” Id. (internal quotation marks omitted). The party seeking invocation of the doctrine bears the burden of demonstrating that all three prongs are satisfied. See Swanson v. DeSantis, 606 F.3d 829, 833 (6th Cir. 2010). “The justification for immediate appeal must therefore be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes.” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 107 (2009).
Thus, Defendants’ application for appeal does not automatically stay the proceedings in this Court. See 28 U.S.C. § 1292(b) (emphasis added). Nonetheless, a district court may, in its discretion, grant a stay upon consideration of four factors:
(1) [T]he likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; (4) and the public interest in granting the stay. Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2009) (staying the case pending the appeal of an order granting a preliminary injunction).2
2 See also Lewis v. Charter Twp. of Flint, No. 15-11430, 2015 WL 6125272, at *2 (E.D. Mich. Oct. 19, 2015); Smith v. Cnty. of Lenawee, No. 09-10648, 2009 WL 3672107, at *2 (E.D. Mich. Nov. 3, 2009) (applying the aforementioned factors to
Page 5 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3132 Page 6 of 14
I. The Court has Jurisdiction Because its Order [48] Denying Defendants’ Motion to Dismiss for Plaintiffs’ Failure to Exhaust is a Non-Final, Non-Appealable Order.
Neither the Supreme Court nor the Sixth Circuit has explicitly decided the issue of whether a district court’s order denying a motion to dismiss for failure to exhaust under the IDEA is immediately appealable. But, the Sixth Circuit has held that orders resolving issues of exhaustion in other contexts are non-final, and therefore, non-appealable. See, e.g., Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 752 (6th Cir. 2015) (holding that it lacked jurisdiction to decide whether the district court properly held that the defendant waived the exhaustion requirement of the Prison Litigation Reform Act “because the district court’s resolution of the issue is neither a final order nor appealable interlocutory order . . . .”); Simon v. Pfizer Inc., 398 F.3d 765, 771 (6th Cir. 2005) (holding that the district court’s order, denying defendant’s motion to dismiss on the basis that the plaintiff was excused from exhausting his administrative remedies, did not fit within the collateral order doctrine).
determine whether to stay proceedings pending the appeals of motions for summary judgment); Beattie v. CenturyTel, Inc., No. 02-10277-BC, 2006 WL 1722207, at *2 (E.D. Mich. June 20, 2006) (applying the aforementioned factors to determine whether to stay proceedings pending the appeal of an order granting class certification).
Page 6 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3133 Page 7 of 14
In determining whether an order is reviewable on appeal, “. . . the
Court does not engage in an individualized jurisdictional inquiry, but focuses
on the entire category to which a claim belongs.” Mohawk, 558 U.S. at 101
(citation omitted). The Court finds no reason to deviate from precedent and
exclude the issue of exhaustion under the IDEA from the “entire category”
of exhaustion. Applying the holdings of Henricks and Simon, the Court finds
that Order [48] denying Defendants’ motion to dismiss is non-final.3
3 In its Reply [74], Defendant Michigan Department of Education cites to Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994) for the proposition that it is not for this Court to decide whether the appeal was proper. In Dickerson, the defendants appealed the district court’s denial of qualified immunity and the district court, upon a motion from the plaintiffs, certified the appeal as frivolous. Id. at 251. The district court then ordered the dismissal of the defendants’ notice of appeal. Id. at 252. The Sixth Circuit held that the district court’s attempted dismissal did not affect the Court’s jurisdiction over the appeal. Id. The Sixth Circuit explained: “[a]lthough this court has suggested in the past that a district court may have jurisdiction to certify an interlocutory appeal from the denial of qualified immunity as frivolous, see e.g., Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991), we find no authority that would permit a district court to dismiss a notice of appeal from such an order.” Id. (emphasis added). This case is easily distinguishable from Dickerson. Here, unlike Dickerson, in which the defendants appealed a decision denying qualified immunity, Defendants attempt to appeal a non-final order on the issue of exhaustion. Unlike qualified immunity, exhaustion “is not a protection from litigation.” Henricks, 782 F.3d at 752. More importantly perhaps, in this case, the issue of the Court’s jurisdiction was prompted by Defendants’ motions to stay the proceedings. This differs from Dickerson where the plaintiffs moved to certify the appeal as frivolous and the district court dismissed the defendants’ appeal. The Court’s Order [75] rules on Defendants’ motions to stay and/or adjourn; the Order [75] does not dismiss Defendants’ appeal.
Page 7 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3134 Page 8 of 14
Furthermore, application of the three-factor test yields the same result. First, Defendants have not demonstrated that the Court’s decision to excuse Plaintiffs’ failure to exhaust “amounts to a ‘conclusive’ resolution of the issue.” Swanson, 606 F.3d at 833. Defendants seem to argue that the Supreme Court’s holding in Fry v. Napolean Cmty. Schs., 137 S.Ct. 743, 755 (2017), requiring exhaustion under the IDEA “when the gravamen of a complaint seeks redress for a school’s failure to provide a FAPE,” is jurisdictional, and therefore, conclusive. But, Fry did not resolve the issue of whether exhaustion may be excused because of a systemic violation.
The Order [48], denying a motion to dismiss, “obviously does not conclude litigation.” Henricks, 782 F.3d at 752. Moreover, a district court’s “ruling on the exhaustion issue is not conclusive with respect to [plaintiff’s] underlying claims.” See Simon, 398 F.3d at 771. Accordingly, Defendants have failed to satisfy the first prong.
Second, the Court agrees with Defendants that Order [48] resolves an important issue completely separate from the merits: whether the IDEA’s exhaustion requirement may be excused where Plaintiffs allege a systemic violation of the Act.4 However, this factor alone is not determinative.
4 Defendants cite to Crocker v. Tenn. Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935 (6th Cir. 1989), to support their proposition that exhaustion is a significant requirement.
Page 8 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3135 Page 9 of 14
Finally, in support of their argument that the Order [48] is effectively unreviewable, Defendants submit that congressional intent would be thwarted if the Order is not reviewed on an interlocutory basis. [Dkt. #57 at 5]. Defendants’ argument on congressional intent is misplaced. The question before the Court is whether the order is effectively unreviewable upon appeal from a final judgment. When the Court renders a final judgment in this case, the issue of exhaustion under the IDEA will be subject to appeal at that time.
Defendants have failed to demonstrate that the Sixth Circuit has jurisdiction to hear its appeal of the Court’s Order [48] under the collateralorder doctrine. “[T]he class of collaterally appealable orders must remain narrow and selective in its membership.” Mohawk, 558 U.S. at 113 (internal quotation marks omitted). The Court declines to expand the collateral-order doctrine to include the basis of Defendants’ appeal. Therefore, the Court has jurisdiction to proceed with the case.
II. A Discretionary Stay of the Proceedings is not Warranted. The Court considers the aforementioned factors in determining whether to grant a stay of the proceedings.5 “All four factors are not prerequisites but are
5 “(1) [T]he likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the
Page 9 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3136 Page 10 of 14
interconnected considerations that must be balanced together.” Coal. to Defend Affirmative Action, 473 F.3d at 244.
First, Defendants are not likely to succeed on the merits of their appeal. As a threshold matter, the Court concluded that the Sixth Circuit does not have jurisdiction over Defendants’ appeal of a non-final order. Without jurisdiction, the Sixth Circuit cannot reach the merits of Defendants’ appeal.
Nevertheless, in support of a stay, Defendants restate many of the arguments raised in their motions to dismiss. However, the Court has already conducted its analysis rejecting Defendants’ failure to exhaust claim in its previous order. [Dkt. #48].
Second, it is unlikely that Defendants will be irreparably harmed absent a stay. “‘Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough’ to reach the level of irreparable harm.” Crookston v. Johnson, 841 F.3d 396, 404 (6th Cir. 2016) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)).
Defendants submit that, absent a stay, they will suffer irreparable harm because they will lose the opportunity to have the issues fully determined on the merits. [Dkt. #65 at 22]. However, if the proceedings continue, Defendants retain,
stay; (4) and the public interest in granting the stay.” Coal. to Defend Affirmative Action, 473 F.3d at 244.
Page 10 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3137 Page 11 of 14
rather than lose, opportunities to be heard before this Court. Defendants will be afforded the opportunity to present their arguments at the preliminary injunction hearing as scheduled. After a decision is rendered on Plaintiffs’ Motion [62], proceedings will continue as necessary.
Defendants further submit that they will be deprived of the autonomy retained to the State under the IDEA absent a stay. Id. at 24. While the State bears the “primary responsibility for developing and executing educational programs” under the IDEA, the Court plays a limited role in ensuring that states comply with the law. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005); see also Gagliardo v. Arlington Central School Dist., 489 F.3d 105, 112 (2d Cir. 2007) (noting that “the role of the federal courts in reviewing state educational decisions under the IDEA is ‘circumscribed.’”). The harm Defendants assert with respect to the State’s autonomy is entirely speculative and therefore weighs against a stay of the proceedings. See Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (noting that “the harm alleged must be both certain and immediate, rather than speculative or theoretical.”).
Third, if a stay is granted, Plaintiffs may continue to suffer irreparable harm. Plaintiffs are school-age children at risk of developing disabilities as a result of elevated levels of lead in the drinking water in Flint. The extent of the harm inflicted upon these children remains unknown. A stay of the proceedings will only
Page 11 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3138 Page 12 of 14
further delay evaluation of the harm imposed and an assessment of Defendants’ compliance with the IDEA.
Lastly, granting a stay is not in the public interest. Defendants argue that if exhaustion is required, the public interest will be served by resolving this case in administrative proceedings, as opposed to the district court. [Dkt. #65 at 28]. But, Defendants fail to demonstrate how administrative proceedings can effectively address the systemic violations alleged and relief sought by Plaintiffs.
It is clear that “‘[t]he maintenance of appropriate education services to disabled children is in the public interest . . . .’” Young v. Ohio, No. 1:12CV967, 2013 WL 146365, at *10 (S.D. Ohio Jan. 14, 2013) (quoting M.A. ex rel. E.S. v. State Operated Sch. Dist. of City of Newark, 344 F.3d 335, 352 (3d Cir. 2003)). Staying this litigation would only serve to frustrate that paramount interest.
III. The Court’s October 2, 2017 Scheduling Order Remains in Effect. The Court has the authority to set and modify its schedule. With respect to motions for temporary restraining orders and preliminary injunctions, “[t]he court may set a different time schedule.” E.D. L.R. 65.1. Defendants request that the Court revise its current schedule and adjourn the preliminary injunction hearing set for December 4, 2017. [Dkt. #70]. Defendants submit that: (1) “there is nothing preliminary about the scheduled hearing” and it is
Page 12 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3139 Page 13 of 14
in essence, a trial on the merits; (2) they have not been provided sufficient time to prepare; and (3) the Court is empowered to expedite trial. Id.
The Court rejects Defendants’ submission that a preliminary injunction hearing is inappropriate for this type of “final request.” The purpose of a preliminary injunction is to prevent irreparable injury and “preserve the Court’s ability to render a meaningful decision on the merits.” United Food & Commercial Workers Union, Local 1099 v. SW. Ohio Reg’l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998). Notwithstanding some overlap between the preliminary and final relief requested, the Court may still find it necessary to grant preliminary relief if the status quo is causing irreparable injury. See id.
Furthermore, Defendants submit that they do not have enough time to prepare for the hearing. Plaintiffs filed this lawsuit over one year ago. Moreover, as Plaintiffs correctly note, a “preliminary injunction, by its very nature, provides expedited relief to prevent irreparable harm.” [Dkt. #72 at 31] (emphasis added). The Court is unsympathetic to Defendants’ argument that they have had insufficient time to prepare.
CONCLUSION Defendants have failed to demonstrate that the Court’s non-final decision to excuse Plaintiffs’ failure to exhaust under the IDEA is immediately appealable
Page 13 of 14

Case 2:16-cv-13694-AJT-APP ECF No. 75 filed 11/02/17 PageID.3140 Page 14 of 14
under the collateral-order doctrine. Defendants similarly fail to persuade the Court that a discretionary stay of the proceedings is warranted.
Accordingly, IT IS ORDERED that Defendants’ Motions for Stay of Proceedings [64, 65, 68] are DENIED. IT IS FURTHER ORDERED that Defendants’ Motion to Adjourn Dates [70] is DENIED. SO ORDERED.

Dated: November 2, 2017

s/Arthur J. Tarnow Arthur J. Tarnow Senior United States District Judge

Page 14 of 14

 
 Case 2:16-cv-C13a6se9:41-A7J-2T2-A55PP DEoCcFumNeon. t9:426-f1iled 1F1il/e2d8:/171/28P/2a0g1e7ID.51P9a2ge: P1age 1 of 5 (1 of 5)

Nos. 17-2255/2257/2260
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

D.R., as a minor through parent and next friend

)

Dawn Richardson, et al.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

GENESEE INTERMEDIATE SCHOOL

)

DISTRICT; MICHIGAN DEPARTMENT OF

)

EDUCATION; FLINT COMMUNITY SCHOOLS, )

)

Defendants-Appellants.

)

)

FILED
Nov 28, 2017 DEBORAH S. HUNT, Clerk
O R D E R

Before: SUHRHEINRICH and KETHLEDGE, Circuit Judges; HOOD, District Judge.*

In this putative class action under the Individuals with Disabilities Education Act (“IDEA”), Defendants Genesee Intermediate School District (“Genesee”), Michigan Department of Education (“MDE”), and Flint Community Schools (“Flint”) appeal the denial of their motion to dismiss for failure to exhaust administrative remedies. The Plaintiffs move to dismiss the appeals for lack of jurisdiction. The Defendants oppose the motion to dismiss on the ground that the district court’s ruling is an appealable collateral order. The Plaintiffs reply in support of the dismissal of the appeals and move for an expedited ruling on their motion to dismiss.

* The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

Case 2:16-cv-C13a6se9:41-A7J-2T2-A55PP DEoCcFumNeon. t9:426-f1iled 1F1il/e2d8:/171/28P/2a0g1e7ID.51P9a3ge: P2age 2 of 5 (2 of 5) Nos. 17-2255/2257/2260 -2-
In addition, MDE moves for a stay of the district court proceeding pending its appeal. MDE seeks an expedited ruling on its motion, which is supported by Genesee and Flint. The Plaintiffs oppose the motion for a stay.
We consider appellate jurisdiction prior to considering the expedited motion for a stay pending appeal. We have jurisdiction of appeals from final judgments pursuant to 28 U.S.C. § 1291. The collateral-order doctrine, which is a practical construction of the final-judgment rule, permits certain categories of non-final rulings to be immediately appealed. To be appealable, a non-final order must “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (internal quotation marks omitted). To conclude that a category of claims constitutes collateral orders, “[t]he justification for immediate appeal must therefore be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009).
In an action similar to the instant case that alleged widespread, systemic violations of IDEA, the Third Circuit held that the denial of a motion to dismiss on the basis of failure to exhaust administration remedies was not appealable as a collateral order. M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335, 343 (3d Cir. 2003). And we have previously concluded that denials of motions to dismiss for failure to exhaust are not final or otherwise appealable. See Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 752 (6th Cir. 2015); Wright v. Leis, 335 F. App’x 552, 554 (6th Cir. 2009); Simon v. Pfizer Inc., 398 F.3d 765, 771 (6th Cir. 2005). Other Circuits likewise have concluded that the denial of a motion to dismiss on exhaustion grounds is not an appealable collateral order. See, e.g., Langford v. Norris, 614 F.3d

Case 2:16-cv-C13a6se9:41-A7J-2T2-A55PP DEoCcFumNeon. t9:426-f1iled 1F1il/e2d8:/171/28P/2a0g1e7ID.51P9a4ge: P3age 3 of 5 (3 of 5) Nos. 17-2255/2257/2260 -3-
445, 456–57 (8th Cir. 2010); Stewart v. Oklahoma, 292 F.3d 1257, 1260 (10th Cir. 2002); Davis v. Streekstra, 227 F.3d 759, 762–63 (7th Cir. 2000).
Moreover, the district court’s ruling is not a collateral order because it can be effectively reviewed on appeal from the final judgment. An exhaustion requirement is not immunity from suit and does not implicate a right not to be tried. Henricks, 782 F.3d at 752 (“[T]he exhaustion requirement, unlike qualified immunity, is not a protection from litigation.”); Davis, 227 F.3d at 763 (“Exhaustion requirements do not create absolute (or even qualified) rights to be free from litigation.”). And exhaustion does not confer any right to be free from the costs of litigation. Langford, 614 F.3d at 457. “[T]he possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress.” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 436 (1985).
Accordingly, the motion to dismiss these appeals for lack of jurisdiction is GRANTED. The motion for a stay pending appeal and the motion to expedite are DENIED as moot.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

Case 2:16-cv-C13a6se9:41-A7J-2T2-A55PP DEoCcFumNeon. t9:426-f2iled 1F1il/e2d8:/171/28P/2a0g1e7ID.51P9a5ge: P1age 4 of 5 (4 of 5)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 28, 2017
Ms. Margaret Bettenhausen Mr. Travis Comstock Mr. Nathan A. Gambill Mr. Timothy John Haynes Mr. Daniel S. Korobkin Mr. Richard S. Kuhl Mr. Zachary Chad Larsen Mr. John Louis Miller Mr. Timothy John Mullins Mr. Joseph E. Richotte
Case No. 17-2255/17-2257/17-2260, D.R., et al v. Genesee Re: Intermediate Sch Dist
Originating Case No. : 2:16-cv-13694
Dear Counsel: The Court issued the enclosed Order today in this case.

Case 2:16-cv-C13a6se9:41-A7J-2T2-A55PP DEoCcFumNeon. t9:426-f2iled 1F1il/e2d8:/171/28P/2a0g1e7ID.51P9a6ge: P2age 5 of 5 (5 of 5)

cc: Mr. David J. Weaver Enclosure No mandate to issue

Sincerely yours,
s/Leon T. Korotko for Roy Ford Case Manager Direct Dial No. 513-564-7014

 
 2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 1 of 25 Pg ID 5746
EXHIBIT A

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 2 of 25 Pg ID 5747
SETTLEMENT AGREEMENT I. INTRODUCTION
This Settlement Agreement (“Agreement”) is entered into by and between the Plaintiffs (defined below) and the Defendants (defined below), hereinafter referred to individually as “Party” and collectively as “Parties,” in the civil action known as D.R., et al. v. Michigan Department of Education, et al., currently pending in the United States District Court for the Eastern District of Michigan (the “Court”) as case number 2:16-cv-13694-AJT-APP (the “Case”). This Agreement provides for the resolution of Count 1, Systemic Violation 1 of Plaintiffs’ complaint filed in the Case (Dkt. # 1), Plaintiffs’ motion for a preliminary injunction filed October 16, 2017 (Dkt. # 62), and any other claims or allegations by Plaintiffs that Defendants have violated their “child find” obligations (together, the “Child Find claim”). This Agreement resolves the motion for preliminary injunction and underlying Child Find claim only; it does not settle the entire Case.
II. PARTIES The Plaintiffs are the named Plaintiffs, D.R., A.K., C.D.M., C.M., J.T., N.S.,
J.W., C.D., D.K., M.K., O.N., D.T., D.D., C.W., J.B., who filed the Case as minors through their parents identified in its Complaint (Dkt. # 1).

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 3 of 25 Pg ID 5748
The Defendants are the Michigan Department of Education (“MDE”), Genesee Intermediate School District (“GISD”), and Flint Community Schools (“FCS”).
III. DEFINITIONS A. The Registry. The “Registry,” known as the FlintRegistry, is the
voluntary-enrollment, secure registry of Flint residents who were exposed to leadcontaminated water from the Flint water system from 2014-2015 that is being established through federal grant funding to Michigan State University (Grant # NUE2EH001370) in order to connect participants to programs designed to minimize the effects of lead on their health.
B. Genesee Health System. The “Genesee Health System,” or “GHS,” is a Michigan Community Mental Health Authority that is the duly authorized Community Mental Health Services Program for Genesee County residents.
C. Neurodevelopmental Center of Excellence. The “Neurodevelopmental Center of Excellence,” or “NCE,” is a proposed expansion of the existing neurodevelopmental evaluation center operated by GHS.
D. The Program. “The Program” is the program that is being planned and implemented by the Registry and NCE, the elements of which are set forth in Exhibit 1 to this Agreement.
2

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 4 of 25 Pg ID 5749
IV. RECITALS WHEREAS, Plaintiffs commenced the Case currently pending before the
Court, seeking declaratory and injunctive relief; WHEREAS, Plaintiffs allege in the Case that Defendants are in violation of
the mandates of the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), as amended, 20 U.S.C. § 1400 et seq., and its implementing regulations; § 504 of the Rehabilitation Act of 1973 (“Section 504”), as amended, 29 U.S.C. § 794; Title II of the Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq.; and analogous provisions of Michigan law, Mich. Comp. Laws § 340.1701 et seq.;
WHEREAS, the Parties agree that resolution of the motion for preliminary injunction and the Child Find claim without the delay, expense, risk, and uncertainties of a lengthy evidentiary hearing, further motion practice, trial, and possible appeal is in the best interest of the Parties, the public, and judicial economy;
WHEREAS, after the voluntary exchange of information and arm’s length settlement discussions, the Parties consider this Agreement to be a fair, reasonable, and equitable resolution of the motion for preliminary injunction and the Child Find claim;
3

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 5 of 25 Pg ID 5750
BASED ON THE FOREGOING RECITALS AND THE TERMS AND CONDITIONS STATED HEREIN, the Parties agree as follows:
V. PROGRAM FOR SCREENING AND ASSESSMENT 1. The Program, as defined above and the elements of which are set forth
in Exhibit 1 to this Agreement, will be used to screen and assess children who may have been exposed to elevated levels of lead in the Flint water supply. The Program will be administered through the infrastructure of the Flint Registry platform and the NCE.
2. Counsel for MDE have consulted with Michigan Department of Health and Human Services (“MDHHS”) on whether the screening, assessment and treatment services generally described in Exhibit 1 may be covered by Medicaid, and MDHHS has confirmed that those services are reimbursable, subject to Medicaid’s terms, conditions, and eligibility requirements.
3. No later than July 15, 2018, MDE shall provide $4,139,571.51 in grants or funds to the Registry and NCE for planning and initial implementation of the Program. All Parties recognize the availability of such funds may be subject to legislative approval. MDE shall use best efforts to obtain legislative approval of funds if necessary. If the Michigan Legislature fails to approve such funds, this Agreement may be declared null and void.
4

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 6 of 25 Pg ID 5751
4. Defendants shall not object to Plaintiffs’ representatives participating in the Program planning process.
5. Participation in the Program will require voluntary enrollment and consent by parents and guardians of eligible children for screening, assessments, and sharing of information with school and health care providers. Defendants shall use their best efforts to encourage parents (a) to enroll in the Registry and (b) to complete screening and NCE-recommended assessments, and Defendants shall provide and assist with the necessary parental consent forms.
6. Each Defendant shall provide, for a period of five years following the date this Agreement becomes effective, the equivalent of a full-time employee (“FTE”) to facilitate and maximize Registry enrollment, screening, NCErecommended assessment, parental consent, collaboration and communication with the Registry and NCE, and use of NCE assessment results by schools. FCS’s obligation under this paragraph is contingent upon available funding for the position through non-general funds, and FCS shall make reasonable efforts to continue to receive funding for five years.
7. FCS shall operate, for a period of five years following the date this Agreement becomes effective, a Wellness Center or equivalent in every FCS school. Wellness Center staff will assist parents, guardians, and students to enroll and participate in the Program, including obtaining necessary parental consent
5

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 7 of 25 Pg ID 5752
forms. FCS’s obligation under this paragraph is contingent upon available funding for the operation of Wellness Centers through non-general funds. FCS shall make reasonable efforts to continue to receive funding for five years. MDE shall make reasonable efforts to attempt to secure continuing state funding to support the operation of Wellness Centers for five years.
8. FCS and GISD shall make available electronic devices in each of their respective schools for use by parents and guardians to enroll their eligible children in the Registry.
9. FCS, with support and supervision from GISD and MDE, shall provide training and professional development to administrators, teachers, and staff (“educators”) working directly with students on (a) the Program’s process for Registry enrollment, screening, and NCE assessment, (b) how to recognize when a student might have a disability or other deficit, including those that can be caused or exacerbated by lead, and (c) how to identify and report any such student to an FTE equivalent (see para. V.6) or Wellness Center staff (see para. V.7). FCS will provide each educator with a form that the educator can fill out in which the educator can identify students whom the educator believes should be referred to the Program.
6

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 8 of 25 Pg ID 5753
10. FCS and GISD shall request that NCE establish protocols to provide information to parents and guardians after an NCE assessment is performed so that they may request a special education evaluation.
11. FCS and GISD shall establish protocols, after obtaining parental or guardian consent and a request for special education evaluation, to access NCE assessment results.
12. As part of its evaluation and reevaluation process under the IDEA, FCS, with support and supervision from GISD and MDE, shall review and document all screening and NCE assessment results that it has been provided in accordance with 34 C.F.R. 300.304-300.311.
13. Defendants remain responsible for fulfilling their child find obligations under IDEA, Section 504, and applicable state law. Nothing in the above provisions absolves Defendants of duties under IDEA, Section 504, and applicable state law to identify, locate, and evaluate all students with suspected disabilities.
VI. REPORTING AND DISCLOSURES 1. Every six months for a minimum of three years following the date this
Agreement becomes effective, MDE shall conduct a selective review or audit of random FCS student files for students who were assessed by NCE. For the selected files, MDE shall determine if NCE assessments were reviewed by FCS,
7

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 9 of 25 Pg ID 5754
whether an IEP was completed, and if so what category of disability made the student eligible for an IEP. Following each six-month review or audit, MDE shall provide Plaintiffs with a report specifying the results.
2. Every six months and for a minimum of two years following the date this Agreement becomes effective, GISD shall provide Plaintiffs with a report specifying (1) the number of Multidisciplinary Evaluation Team (“MET”) evaluations completed by GISD and FCS, and (2) the resulting number of students determined eligible for special education services.
VII. ATTORNEYS’ FEES AND COSTS Plaintiffs reserve the right to seek attorneys’ fees and costs related to their
Child Find claim following entry of a final judgment at the conclusion of the Case. Defendants agree that this Agreement does not constitute a waiver of attorneys’ fees and costs, and Plaintiffs agree that this Agreement does not waive Defendants’ right to argue that Plaintiffs are not prevailing parties for purposes of attorneys’ fees.
VIII. STIPULATED TERMS OF PARTIAL DISMISSAL 1. Upon execution of this Agreement through the signatures of the
Parties or their authorized representatives below, the Parties shall submit the Agreement to the Court along with a stipulation in the form attached hereto as
8

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 10 of 25 Pg ID 5755
Exhibit 2, and, if the Court requests, a proposed or stipulated order reflecting the stipulated terms enumerated in Exhibit 2.
2. The Parties’ stipulation to dismiss Plaintiffs’ Child Find claim and deny as moot Plaintiffs’ motion for preliminary injunction is contingent upon the Court making this Agreement part of the record in the Case and entering an order that (a) approves the Agreement as fair, reasonable, and adequate, consistent with the public interest, and in furtherance of the objectives of the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), as amended, 20 U.S.C. § 1400 et seq., and its implementing regulations; (b) finds that the Agreement is in each of the minor parties’ best interest; (c) incorporates the Agreement by reference; and (d) expressly retains jurisdiction to enforce the Agreement according to its terms. If the Court declines to place the Agreement on the record, declines to approve the Agreement, declines to incorporate the terms of this Agreement in an order, or declines to retain jurisdiction to enforce it, this Agreement and any stipulation pursuant thereto may be declared null and void.
3. This Agreement does not require dismissal of the entire Case or Plaintiffs’ claims other than the Child Find claim.
IX. EFFECTIVE DATE This Agreement becomes effective when the Court enters an order
incorporating the terms of this Agreement, retaining jurisdiction to enforce it,
9

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 11 of 25 Pg ID 5756
dismissing Plaintiffs’ Child Find claim with prejudice, and denying as moot Plaintiffs’ motion for preliminary injunction pursuant to the Parties’ stipulation.
X. DISPUTE RESOLUTION AND JUDICIAL ENFORCEMENT 1. The Court has jurisdiction to enforce this Agreement. 2. The Parties shall make all reasonable efforts to resolve disputes and
disagreements regarding the meaning of, compliance with, and/or implementation of this Agreement informally and in good faith prior to seeking relief from the Court.
3. If a Party has a dispute concerning the meaning of, compliance with, and/or implementation of this Agreement, that Party will send written notice to all other Parties specifying the nature of the dispute. Within 14 days of the date of transmission of written notice, the Parties shall meet and confer in a good-faith attempt to resolve the dispute without soliciting the Court’s involvement. As part of the meet and confer, the Parties shall comply with reasonable requests from another Party or Parties for information and documents related to the dispute, and shall, upon request by another Party or Parties, provide reasonable access to client representatives with knowledge related to the dispute.
4. If the Parties are unable to resolve any dispute or disagreement pursuant to the process set forth above, any Party or Parties may file a motion with the Court to enforce this Agreement. Any Party that intends to file a motion to
10

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 12 of 25 Pg ID 5757
enforce the Agreement shall provide all other Parties written notice of such intent at least 7 days prior to filing any such motion.
XI. MODIFICATION This Agreement contains the entire agreement of the Parties with regard to
the matters referenced herein and supersedes any prior oral or written communications, understandings or statements between the Parties as to such matters. The Parties may modify the terms of this Agreement by written agreement, subject to Court approval, which approval must include the findings described in subparts a and b of paragraph VIII.2 above. To effectuate such modification, the Parties shall file a joint stipulation and notice to the Court. No modification of this Agreement may be made absent joint stipulation of all Parties and an order of the Court.
XII. RELEASES Except as otherwise provided in this Agreement, it is the intention of each
of the Parties that this Agreement shall be the full and final accord and satisfaction and release of any and all dealings and accounts of any kind or nature between the parties for the motion for preliminary injunction and Child Find claim. Each party does hereby for himself, herself, or itself and for each and all of their agents and successors in interest, release and absolutely forever discharge the other and their
11

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 13 of 25 Pg ID 5758
agents and successors in interest of and from any and all claims, damages, liabilities, suits, costs, and causes of action of every kind and nature whatsoever, whether now known or unknown, which the parties may have against the other arising from the motion for preliminary injunction and Child Find claim through the date of this Agreement.
The released matters shall include any and all claims known and unknown related to or arising from the motion for preliminary injunction and Child Find claim as referenced in this Agreement. Without in any way limiting the generality of the general releases contained in the foregoing paragraph, each of the Parties does hereby release and absolutely and forever discharge each of the others from all matters arising out of or in connection with the allegations set forth in this Agreement.
The foregoing release and discharge pertains to the motion for preliminary injunction and the Child Find claim only; it is not a release or discharge of the entire Case or of Plaintiffs’ claims other than the Child Find claim. Additionally, as set forth in Paragraph VII, Plaintiffs reserve their right to seek attorneys’ fees and costs related to their Child Find claim and do not release or discharge Defendants from any obligation they may be found to have to pay attorneys’ fees and costs.
12

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 14 of 25 Pg ID 5759
XIII. SIGNATORIES AND COUNTERPARTS 1. Each signatory to this Agreement certifies that he or she is fully
authorized to enter into this Agreement, to agree to its terms and conditions, and to execute and legally bind the Party he or she represents.
2. This Agreement may be executed in counterparts. [signatures to follow] Plaintiffs D.R., A.K., C.D.M., C.M., J.T., N.S., J.W., C.D., D.K., M.K., 0.N., D.T., D . D. . , C .~.W BY: Its -c-OVll.1e""""'--1"7:lg-"'9'=-e""'1a..c..j-lJt;"".".·.fe.s.___
Date: 'i /.3/ 18
Flint Community Schools
IDBtsYat-:e-: -----------------------------
Distrjct
13

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 15 of 25 Pg ID 5760

XIII. SIGNATORIES AND COUNTERPARTS

I. Each signatory to this Agreement certifies that he or she is fully

authorized to enter into this Agreement, to agree to its terms and conditions, and to

execute and legally bind the Paity he or she represents.

2. This Agreement may be executed in counterparts.

[signatures to follow]

Plaintiffs D.R., A.K., C.D.M., C.M., J.T., N.S., J.W., C.D., D.K., M.K., O.N., D.T., D.D., C. W., J.B.

BY:- - - - - -- -- --

Its -
Date:

- --
---

- --
-- -

- --
-- -

-
-

-

Flint Community Schools
BY· ""°""',..,.,_.=-<.J~(---r-.Lf->:::..q,<~ ~-
Its _J_J.::.....:::..2.+-.~f£:I~~~ e:;z:.{d;,,£..~-!,-t.

Genesee Inteimediate School District BY:- - - - - -- - -- -
Its - - -- - - - - -- Date: - -- - -- - - - - -

IBtsY:~~~~~~::=,======::~~
Date: - - -=-~-----,----'-----
13

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 16 of 25 Pg ID 5761
EXHIBIT 1

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 17 of 25 Pg ID 5762
The Flint Registry (“Registry”) and Genesee Health System/Neurodevelopmental Center of Excellence (“GHS” or “NCE”) are working to plan and implement a program as set forth below (hereinafter referred to as “the Program”), anticipating that it will be operational by Fall 2018. The parties acknowledge that neither the Registry nor GHS are parties to the lawsuit and cannot be bound by a settlement agreement. Further, the parties acknowledge that there is a planning and startup phase to the Program lasting until September 2018 in which additional details will be determined (“the planning phase”). The Program, subject to development in the planning phase by the Registry and GHS/NCE, is envisioned to be as follows.
1. Overall Description of Program During the planning phase, the Registry and NCE will work to finalize proposed
evaluations, data sharing, and other details of the Program. The goal of the Registry is to connect those affected by the lead situation with other resources in the community to improve health and development outcomes. Through a voluntary consent process, the children of Flint will be screened using evaluative tools (caregiver questionnaires) developed by local and national experts to evaluate children in domains of development that may be impacted by lead exposure. The evaluation data will be centrally housed in the Registry’s CDC funded secure database.
The NCE is a proposed expansion of the existing neurodevelopmental evaluation center operated by Genesee Health System in partnership with Hurley Children’s Hospital. Genesee Health System is the Community Mental Health Services Program for Genesee County residents. The GHS evaluation center is located in Flint, currently providing autism spectrum disorder evaluations, as well as operating a Fetal Alcohol Syndrome Disorder Diagnostic Center of Excellence. The Program will expand specialty evaluation services by providing medically necessary, comprehensive neuropsychological and psychological assessments to referred
2
IDETROIT\000146172\0002\1845057.v1-2/12/18

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 18 of 25 Pg ID 5763
children in coordination with the Flint Community Schools, the Genesee Intermediate School District, the Flint Registry, and primary care physicians. Specialists in the areas of child neuropsychology and child clinical psychology will provide and interpret these assessments to help identify cognitive, behavioral, and social-emotional needs of referred Flint children, and the assessments will result in referral and linkage to needed services and resources.
It is anticipated that there will be a low threshold for referral to the NCE. A question on the Registry intake will ask whether further referral to NCE is requested regardless of the outcome of the Registry evaluations. The Registry will facilitate referrals to NCE.
After NCE evaluation, a parent or guardian can, upon request for a special education evaluation, utilize the results of these evaluations to aid school district teams in evaluating children for special education services where needed.
2. Registry Eligibility and Scope of Program A final definition of eligibility is to be determined, but the initial Program is designed for
students enrolled in Flint Community Schools and Genesee Intermediate School District, in grades K-9. It is, however, anticipated that all those who were impacted by the Flint water situation will be eligible for the Program.
3. Screening/Assessments Specific screenings and assessments at the Registry and NCE will be finalized during the
planning phase. During the planning stage, the NCE team will work with school partners to ensure assessments meet the needs of school special education determinations to eliminate the need for schools to provide additional screening that could already have been conducted by NCE. As per Flint Registry protocol, all children under 5 years of age will automatically be referred to Early On for further evaluation.
3
IDETROIT\000146172\0002\1845057.v1-2/12/18

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 19 of 25 Pg ID 5764
4. Referrals to NCE The Registry will primarily facilitate referrals to NCE. However, primary care
physicians may refer to NCE as well as other medical referrals. For referrals that do not originate with the Registry, NCE will use best efforts to obtain consent to enroll these children in the Registry at the time of NCE service.
5. Follow-up Testing In 2020 to 2021, the Registry will conduct follow-up tests for all those previously
enrolled in the Registry. NCE will utilize follow-up services as clinically necessary. 6. Data Sharing between Registry-NCE-FCS/GISD During the planning phase, details of data sharing between the Registry, NCE, school
partners and other stakeholders will be finalized. It is anticipated that current electronic medical record (EMR) systems will be utilized such as Epic or Epic Care Link.
Further, during the planning phase, the data points to be collected by the Registry and the NCE will be determined. These data points will include, at a minimum:
• Number of referrals by the district to the Registry; • Number of referrals to the NCE; • Number of NCE assessments completed and what type; • Number of assessments accessed by Flint Community Schools. It is currently envisioned that parents/guardians will be asked, among other things: • Whether they would like further referrals to NCE • School district or school of child • Whether child has current IEP • Whether child has current 504 plan
4
IDETROIT\000146172\0002\1845057.v1-2/12/18

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 20 of 25 Pg ID 5765
5
IDETROIT\000146172\0002\1845057.v1-2/12/18

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 21 of 25 Pg ID 5766
EXHIBIT 2
1

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 22 of 25 Pg ID 5767

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D.R., as a minor through parent and next friend Dawn Richardson, et al.,

Plaintiffs,

No. 16-cv-13694

vs.

Hon. Arthur J. Tarnow

Michigan Department of Education, Genesee Intermediate School District, and Flint Community Schools,

Mag. J. Anthony P. Patti

Defendants. /

STIPULATION REGARDING PARTIAL SETTLEMENT AND REQUEST FOR HEARING
The parties in the above-captioned matter, having entered an agreement that

resolves Plaintiffs’ pending motion for preliminary injunction (Dkt. # 62) and the

“child find” portion of this case, hereby stipulate to the Court’s entry of an order

that:

(a) approves the terms of the Settlement Agreement attached hereto as Exhibit A as fair, reasonable, and adequate;
(b) incorporates by reference the terms of the Settlement Agreement;
(c) expressly retains jurisdiction to enforce the Settlement Agreement according to its terms;
(d) dismisses with prejudice Plaintiffs’ claim under Count 1, Systemic Violation 1, of Plaintiffs’ Complaint along with any

2

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 23 of 25 Pg ID 5768

other claims or allegations by Plaintiffs that Defendants have violated their “child find” obligations; and (e) denies as moot Plaintiffs’ motion for preliminary injunction (Dkt. # 62). The parties further request a hearing on this Stipulation and the attached
Settlement Agreement.
Respectfully submitted,

By: /s/ Gregory G. Little

Daniel S. Korobkin (P72842) Kristin L. Totten (P72942) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org ktotten@aclumich.org msteinberg@aclumich.org kmoss@aclumich.org

Gregory M. Starner Lindsay M. Heck Walter A. Ciacci White & Case LLP 1221 Avenue of the Americas New York, NY 10020 (212) 819-8200 gstarner@whitecase.com lindsay.heck@whitecase.com walter.ciacci@whitecase.com
Attorneys for Plaintiffs

David G. Sciarra Gregory G. Little Jessica A. Levin Education Law Center 60 Park Place, Suite 300 Newark, NJ 07102 (973) 624-1815 dsciarra@edlawcenter.org glittle@edlawcenter.org jlevin@edlawcenter.org

3

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 24 of 25 Pg ID 5769
By: /s/ Donald B. Miller
Donald B. Miller (P23419) Brett J. Miller (P68612) Frederick A. Berg, Jr. (P38002) BUTZEL LONG 150 W. Jefferson, Suite 100 Detroit, MI 48226 313-225-7020 miller@butzel.com millerbr@butzel.com berg@butzel.com
Attorneys for Defendant Flint Community Schools
By: /s/ Timothy J. Mullins
Timothy J. Mullins John Miller GIARMARCO, MULLINS & HORTON, PC 101 W. Big Beaver Road, 10th Floor Troy, MI 48084-5280 (248) 457-7020 tmullins@gmhlaw.com jmiller@gmhlaw.com
Attorneys for Defendant Genesee Intermediate School District
By: /s/ Timothy J. Haynes
Timothy J. Haynes (P41196) Travis M. Comstock (P72025) Richard S. Kuhl (P42042) Margaret A. Bettenhausen (P75046)
4

2:16-cv-13694-AJT-APP Doc # 115-1 Filed 04/09/18 Pg 25 of 25 Pg ID 5770
Nathan A. Gambill (P75506) Zachary C. Larsen (P72189) Assistant Attorneys General Michigan Department of Attorney General P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 haynest3@michigan.gov comstockt@michigan.gov kuhlr@michigan.gov bettenhausenm@michigan.gov gambilln@michigan.gov larsenz@michigan.gov Attorneys for Defendant Michigan Department of Education
Dated: __________, 2018
5

 
 U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:16−cv−13694−AJT−APP

APPEAL

DR et al v. Michigan Department of Education et al Assigned to: District Judge Arthur J. Tarnow Referred to: Magistrate Judge Anthony P. Patti

Case in other court:

U.S. Court of Appeals − Sixth Circuit, 17−02255

Cause: 20:1400 Civil Rights of Handicapped Child

Plaintiff

Date Filed: 10/18/2016 Jury Demand: Defendant Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

DR a minor child by Dawn Richardson, Parent and Next Friend

represented by Daniel S. Korobkin American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578−6824 Fax: (313) 578−6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED

David G. Sciarra Education Law Center 60 Park Place Suite 300 Newark, NJ 07102 973−624−1815 Fax: 973−624−7339 Email: dsciarra@edlawcenter.org ATTORNEY TO BE NOTICED

Jessica Alexandra Levin Education Law Center 60 Park Place Suite 300 Newark, NJ 07102 973−624−1815 Fax: 973−624−7339 Email: jlevin@edlawcenter.org ATTORNEY TO BE NOTICED

Kary L. Moss American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6800 Fax: 313−578−6811 Email: kmoss@aclumich.org (Inactive) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED

Kristin Totten Totten and Rucker, PLLC 5985 W. Main St. Kalamazoo, MI 49009 269−270−1278 Email: ktotten@aclumich.org ATTORNEY TO BE NOTICED

Lindsay M. Heck

Plaintiff Dawn Richardson Parent and Next Friend of DR, a minor
Plaintiff AK a minor child by Angy Keelin, Parent and

White & Case LLP 1221 Avenue of the Americas New York, NY 10020 212−819−2551 Fax: 212−354−8113 Email: lindsay.heck@whitecase.com ATTORNEY TO BE NOTICED
Michael J. Steinberg 3145 Jeffries Hall 701 South State Street Ann Arbor, MI 48109 (734) 615−2407 Email: mjsteinb@umich.edu TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little White and Case LLP 1155 Avenue of the Americas New York, NY 10036 212−819−8237 Fax: 212−354−8113 Email: glittle@whitecase.com ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address)

Next Friend
Plaintiff Angy Keelin Parent and Next Friend of AK, a minor

ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little

Plaintiff CDM a minor child by Crystal McCadden, Parent and Next Friend
Plaintiff CM a minor child by Crystal McCadden, Parent and Next Friend

(See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Crystal McCadden Parent and Next Friend of CDM and CM, minors
Plaintiff JT a minor child by Nakiya Wakes, Parent and Next Friend

Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address)

Plaintiff NS a minor child by Nakiya Wakes, Parent and Next Friend
Plaintiff Nakiya Wakes Parent and Next Friend of JT and NS, minors

ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss

Plaintiff JW a minor child by Kathy Wright, Parent and Next Friend
Plaintiff Kathy Wright Parent and Next Friend of JW, a minor

(See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CD a minor child by Twanda Davis, Parent and Next Friend
Plaintiff

Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by

Twanda Davis Parent and Next Friend of CD, a minor
Plaintiff DK a minor child by Rachel Kirksey, Parent and Next Friend

Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED

Plaintiff MK a minor child by Rachel Kirksey, Parent and Next Friend
Plaintiff Rachel Kirksey Parent and Next Friend of DK and MK, minors

Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address)

Plaintiff ON a minor child by Manita Davis, Parent and Next Friend
Plaintiff DT a minor child by Manita Davis, Parent and Next Friend

ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED

Plaintiff Manita Davis Parent and Next Friend of ON and DT, minors
Plaintiff DD a minor child by Willie Daniels, Parent and Next Friend

Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Willie Daniels Parent and Next Friend of DD, a minor
Plaintiff CW a minor child by Chandrika Walker, Parent and Next Friend

Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra

Plaintiff
Chandrika Walker Parent and Next Friend of CW, a minor

(See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JB a minor child by Jeree Brown, Parent and Next Friend
Plaintiff Jeree Brown Parent and Next Friend of JB, a minor

represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
David G. Sciarra (See above for address) ATTORNEY TO BE NOTICED
Jessica Alexandra Levin (See above for address) ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) TERMINATED: 10/23/2018 ATTORNEY TO BE NOTICED
Kristin Totten (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Heck (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 08/29/2019

V. Defendant Michigan Department of Education

ATTORNEY TO BE NOTICED
Gregory G. Little (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth R. Husa Briggs MI Dept of Attorney General Health, Education & Family Services Division 525 W. Ottawa St. 3rd Floor PO Box 30758 Lansing, MI 48909 517−335−7603 Fax: 517−335−1152 Email: briggse1@michigan.gov (Inactive) ATTORNEY TO BE NOTICED
Katherine J. Bennett Michigan Department of Attorney General 525 W. Ottawa St. P.O. Box 30758 Lansing, MI 48933 517−373−7700 Fax: 517−335−1152 Email: BennettK1@michigan.gov ATTORNEY TO BE NOTICED
Margaret A. Bettenhausen Michigan Department of Attorney General 525 West Ottawa St. P. O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: bettenhausenm@michigan.gov ATTORNEY TO BE NOTICED
Nathan A. Gambill Michigan Department of Attorney General ENRA Division P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−335−7636 Email: GambillN@michigan.gov ATTORNEY TO BE NOTICED
Richard S. Kuhl Assistant Attorney General Environment, Natural Resources, and Agriculture Division 525 West Ottawa Street P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: kuhlr@michigan.gov ATTORNEY TO BE NOTICED

Defendant Genesee Intermediate School District
Defendant Flint Community Schools

Timothy J. Haynes Michigan Department of Attorney General 525 Ottawa Street Box 30758 Lansing, MI 48933 517−373−7700 Fax: 517−335−1152 Email: haynest3@michigan.gov ATTORNEY TO BE NOTICED
Travis M. Comstock Michigan Attorney General 525 W. Ottawa Street P.O. Box 30758 Lansing, MI 48909 517−335−7603 Fax: 517−335−1152 Email: comstockt@michigan.gov ATTORNEY TO BE NOTICED
Zachary C. Larsen Michigan Department of Attorney General P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: larsenz@michigan.gov TERMINATED: 01/15/2020 ATTORNEY TO BE NOTICED
represented by John L. Miller Giarmarco, Mullins, 101 W. Big Beaver Road Troy, MI 48084 248−457−7000 Email: jmiller@gmhlaw.com ATTORNEY TO BE NOTICED
Timothy J. Mullins Giarmarco, Mullins & Horton, P.C. 101 W. Big Beaver Rd., 10th Floor Troy, MI 48084 248−457−7000 Email: tmullins@gmhlaw.com ATTORNEY TO BE NOTICED
represented by Brett J. Miller Butzel Long 150 W. Jefferson, Suite 100 Detroit, MI 48226 313−225−5316 Fax: 313−225−7080 Email: millerbr@butzel.com ATTORNEY TO BE NOTICED
Donald B. Miller Butzel Long (Detroit) 150 W. Jefferson Suite 900 Detroit, MI 48226−4430 313−225−7000 Email: miller@butzel.com

ATTORNEY TO BE NOTICED
Frederick A. Berg Butzel Long 150 West Jefferson, Suite 100 Detroit, MI 48226 313−225−7000 Fax: 313−225−7080 Email: bergf@butzel.com ATTORNEY TO BE NOTICED
Joseph E. Richotte BUTZEL LONG, P.C. Stoneridge West 41000 Woodward Avenue Bloomfield Hills, MI 48304 (248) 258−1407 Fax: (248) 258−1349 Email: richotte@butzel.com ATTORNEY TO BE NOTICED

Date Filed 10/18/2016
10/18/2016 10/18/2016 10/18/2016 10/18/2016
10/19/2016 10/19/2016 10/19/2016 10/26/2016 10/26/2016 10/26/2016

# Docket Text
1 COMPLAINT / Class Action Complaint filed by JW, DD, Crystal McCadden, Jeree Brown, Dawn Richardson, Rachel Kirksey, Willie Daniels, DR, ON, MK, CD, CW, CM, JB, AK, NS, Kathy Wright, DK, Manita Davis, Twanda Davis, JT, Angy Keelin, Chandrika Walker, Nakiya Wakes, DT, CDM against Flint Community Schools, Genesee Intermediate School District, Michigan Department of Education. Plaintiff requests summons issued. Receipt No: 0645−5919183 − Fee: &#036 400. County of 1st Plaintiff: Genesee − County Where Action Arose: Genesee − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Little, Gregory) (Entered: 10/18/2016)
2 SUMMONS Issued for *Flint Community Schools* (DTyl) (Entered: 10/18/2016)
3 SUMMONS Issued for *Genesee Intermediate School District* (DTyl) (Entered: 10/18/2016)
4 SUMMONS Issued for *Michigan Department of Education* (DTyl) (Entered: 10/18/2016)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DTyl) (Entered: 10/18/2016)
5 NOTICE of Appearance by Michael J. Steinberg on behalf of All Plaintiffs. (Steinberg, Michael) (Entered: 10/19/2016)
6 NOTICE of Appearance by Kary L. Moss on behalf of All Plaintiffs. (Moss, Kary) (Entered: 10/19/2016)
7 NOTICE of Appearance by Daniel S. Korobkin on behalf of All Plaintiffs. (Korobkin, Daniel) (Entered: 10/19/2016)
8 CERTIFICATE of Service/Summons Returned Executed. Flint Community Schools served on 10/20/2016, answer due 11/10/2016. (Little, Gregory) (Entered: 10/26/2016)
9 CERTIFICATE of Service/Summons Returned Executed. Genesee Intermediate School District served on 10/20/2016, answer due 11/10/2016. (Little, Gregory) (Entered: 10/26/2016)
10 CERTIFICATE of Service/Summons Returned Executed. Michigan Department of Education served on 10/20/2016, answer due 11/10/2016. (Little, Gregory) (Entered: 10/26/2016)

10/28/2016 10/28/2016 10/28/2016 10/28/2016 11/02/2016
11/09/2016 11/22/2016 11/22/2016 11/22/2016 11/30/2016 12/08/2016 12/08/2016
12/08/2016
12/09/2016 12/15/2016
12/28/2016
01/11/2017 01/11/2017

11 NOTICE of Appearance by Kristin Totten on behalf of All Plaintiffs. (Totten, Kristin) (Entered: 10/28/2016)
12 NOTICE of Appearance by Katherine J. Bennett on behalf of Michigan Department of Education. (Bennett, Katherine) (Entered: 10/28/2016)
13 NOTICE of Appearance by Timothy J. Haynes on behalf of Michigan Department of Education. (Haynes, Timothy) (Entered: 10/28/2016)
14 NOTICE of Appearance by Travis M. Comstock on behalf of Michigan Department of Education. (Comstock, Travis) (Entered: 10/28/2016)
15 MOTION for Extension of Time to File Answer And Extension of Page Limit for Responsive Pleading by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6) (Haynes, Timothy) (Entered: 11/02/2016)
16 STIPULATED ORDER Extending Time for Response by All Defendants to 1 Complaint and Extending Page Limitations. Response due by 12/8/2016. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/09/2016)
17 NOTICE of Appearance by Frederick A. Berg on behalf of Flint Community Schools. (Berg, Frederick) (Entered: 11/22/2016)
18 NOTICE of Appearance by Brett J. Miller on behalf of Flint Community Schools. (Miller, Brett) (Entered: 11/22/2016)
19 NOTICE of Appearance by Donald B. Miller on behalf of Flint Community Schools. (Miller, Donald) (Entered: 11/22/2016)
20 NOTICE of Appearance by Timothy J. Mullins on behalf of Genesee Intermediate School District. (Mullins, Timothy) (Entered: 11/30/2016)
21 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Genesee Intermediate School District. (Mullins, Timothy) (Entered: 12/08/2016)
22 MOTION to Dismiss Under Fed.R.Civ.P. 12(b)(1) and (6) by Flint Community Schools. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − FCS Parent Handbook, # 3 Exhibit B − FCS Procedural Safeguards Notice, # 4 Exhibit C − GCHD Lead Testing Information, # 5 Exhibit D − GCHD Hearing and Vision Screening Information, # 6 Exhibit E − FCS Child Find Procedures, # 7 Exhibit F − B.H. v. Portage Pub. Sch. Bd. of Educ.) (Miller, Donald) (Entered: 12/08/2016)
23 MOTION to Dismiss and Brief in Support by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11) (Haynes, Timothy) (Entered: 12/08/2016)
24 NOTICE of Appearance by John L. Miller on behalf of Genesee Intermediate School District. (Miller, John) (Entered: 12/09/2016)
25 MOTION for Judgment by Genesee Intermediate School District. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A Special Education Mandatory Plan, # 3 Exhibit B Department of Educations Procedural Safeguards Notice, # 4 Exhibit C GISD door hanger, # 5 Exhibit D Early−On program, # 6 Exhibit E GISD training presentations, # 7 Exhibit F GISD 1/28/16 letter to Parent/Caregiver, # 8 Exhibit G Efforts undertaken by GISD in response to the Flint water situation) (Mullins, Timothy) (Entered: 12/15/2016)
26 STIPULATED ORDER to Extend Time for Responsive Pleadings as to 22 MOTION to Dismiss Under Fed.R.Civ.P. 12(b)(1) and (6), 23 MOTION to Dismiss, 25 MOTION for Judgment: Responses due by 1/13/2017, Replies due by 2/3/2017. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 12/28/2016)
27 NOTICE of Appearance by David G. Sciarra on behalf of All Plaintiffs. (Sciarra, David) (Entered: 01/11/2017)
28 NOTICE of Appearance by Jessica Alexandra Levin on behalf of All Plaintiffs. (Levin, Jessica) (Entered: 01/11/2017)

01/13/2017
01/13/2017 01/17/2017 01/27/2017 02/03/2017 02/03/2017 02/10/2017 02/28/2017
07/07/2017 07/07/2017
07/07/2017 07/11/2017 07/11/2017
07/17/2017

29 RESPONSE to 22 MOTION to Dismiss Under Fed.R.Civ.P. 12(b)(1) and (6), 23 MOTION to Dismiss and Brief in Support, 25 MOTION for Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits (Unpublished Decisions), # 2 Exhibit 1 − W.H. v. Tenn. Dep't of Educ., # 3 Exhibit 2 − N.S. v. Tenn. Dep't of Educ., # 4 Exhibit 3 − Dixon v. Hamilton City Sch., # 5 Exhibit 4 − T.H. v. Cincinnati Pub. Sch. Dist. Bd. of Educ., # 6 Exhibit 5 − B.C. v. Mt. Vernon Sch. Dist., # 7 Exhibit 6 − Modd v. Cnty. of Ottawa, # 8 Exhibit 7 − Campbell v. Bd. of Educ. of the Centerline Sch. Dist.) (Korobkin, Daniel) (Entered: 01/13/2017)
30 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (Korobkin, Daniel) (Entered: 01/13/2017)
TEXT−ONLY ORDER granting 30 Ex Parte MOTION for Leave to File Excess Pages filed by Plaintiffs. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 01/17/2017)
31 REPLY to Response re 25 MOTION for Judgment filed by Genesee Intermediate School District. (Miller, John) (Entered: 01/27/2017)
32 REPLY to Response re 22 MOTION to Dismiss Under Fed.R.Civ.P. 12(b)(1) and (6) filed by Flint Community Schools. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Miller, Donald) (Entered: 02/03/2017)
33 REPLY to Response re 23 MOTION to Dismiss and Brief in Support filed by Michigan Department of Education. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Exhibit 1) (Haynes, Timothy) (Entered: 02/03/2017)
34 NOTICE TO APPEAR: Status Conference set for 2/28/2017 02:00 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 02/10/2017)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Status Conference held on 2/28/2017. Counsel are to discuss preliminary discovery and the possibility of settling some of the claims and report by email to mike_lang@mied.uscourts.gov by March 14, 2017 confirming the date that they will meet and the agenda of the meeting. Following the meeting, counsel are to notify the court of the status from the meeting and to schedule further proceedings. (MLan) (Entered: 02/28/2017)
35 MOTION for Protective Order by Genesee Intermediate School District. (Attachments: # 1 Exhibit DIscovery to defendants) (Mullins, Timothy) Modified on 7/7/2017 (DWor). [DOCUMENET ENTITLED "MOTION TO STAY DISCOVERY"] (Entered: 07/07/2017)
36 MOTION to Stay Discovery, or, in the Alternative, MOTION for Protective Order by Flint Community Schools. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A−Plaintiffs' First Interrogatories to Defendant FCS, # 3 Exhibit B−Plaintiffs' First Request for Production of Documents to Defendant FCS, # 4 Exhibit C−Hoosier v. Liu) (Miller, Brett) (Entered: 07/07/2017)
37 MOTION for Protective Order by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Haynes, Timothy) (Entered: 07/07/2017)
38 NOTICE OF HEARING on 22 MOTION to Dismiss Under Fed.R.Civ.P. 12(b)(1) and (6), 23 MOTION to Dismiss and Brief in Support, 25 MOTION for Judgment . Motion Hearing set for 8/23/2017 03:30 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 07/11/2017)
39 ORDER REFERRING MOTIONS to Magistrate Judge Anthony P. Patti: 36 MOTION to Stay Discovery, or, in the Alternative MOTION for Protective Order filed by Flint Community Schools, 37 MOTION for Protective Order filed by Michigan Department of Education, 35 MOTION for Protective Order filed by Genesee Intermediate School District. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 07/11/2017)
40 NOTICE OF HEARING on 36 MOTION to Stay Discovery, or, in the Alternative MOTION for Protective Order , 35 MOTION for Protective Order , 37 MOTION for Protective Order . Motion Hearing set for 8/17/2017 02:00 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 07/17/2017)

07/21/2017
07/28/2017 07/28/2017 08/14/2017
08/15/2017 08/17/2017
08/23/2017
08/24/2017 09/12/2017 09/29/2017 10/02/2017
10/10/2017 10/10/2017 10/10/2017 10/10/2017

41 RESPONSE to 36 MOTION to Stay Discovery, or, in the Alternative MOTION for Protective Order /Plaintiffs' Response in Opposition to Defendants' Motions to Stay Discovery, or alternatively, for a Protective Order filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4) (Korobkin, Daniel) (Entered: 07/21/2017)
42 RE−NOTICE OF HEARING on 36 MOTION to Stay Discovery, or, in the Alternative MOTION for Protective Order , 35 MOTION for Protective Order , 37 MOTION for Protective Order . Motion Hearing set for 8/17/2017 03:00 PM before Magistrate Judge Anthony P. Patti**TIME CHANGE ONLY** (MWil) (Entered: 07/28/2017)
43 REPLY to Response re 36 MOTION to Stay Discovery, or, in the Alternative MOTION for Protective Order filed by Flint Community Schools. (Miller, Donald) (Entered: 07/28/2017)
44 NOTICE of Appearance by Lindsay M. Heck on behalf of AK, Jeree Brown, CD, CDM, CM, CW, DD, DK, DR, DT, Willie Daniels, Manita Davis, Twanda Davis, JB, JT, JW, Angy Keelin, Rachel Kirksey, MK, Crystal McCadden, NS, ON, Dawn Richardson, Nakiya Wakes, Chandrika Walker, Kathy Wright. (Heck, Lindsay) (Entered: 08/14/2017)
45 STATEMENT of Resolved and Unresolved Issues , Joint List re: Docket Entries 35, 36, 37, 41 and 43 by Flint Community Schools (Miller, Brett) (Entered: 08/15/2017)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Motion Hearing held on 8/17/2017 re: 36 MOTION to Stay Discovery, or, in the Alternative MOTION for Protective Order filed by Flint Community Schools, 37 MOTION for Protective Order filed by Michigan Department of Education, 35 MOTION for Protective Order filed by Genesee Intermediate School District Disposition: Motions taken under advisement. (Court Reporter: Digitally Recorded) (MWil) (Entered: 08/17/2017)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Motion Hearing held on 8/23/2017 re 25 MOTION for Judgment filed by Genesee Intermediate School District, 22 MOTION to Dismiss Under Fed.R.Civ.P. 12(b)(1) and (6) filed by Flint Community Schools, 23 MOTION to Dismiss filed by Michigan Department of Education. Disposition: Motions taken under advisement. (Court Reporter: Lawrence Przybysz) (MLan) (Entered: 08/24/2017)
46 ORDER granting 35 and 37 Motions for Protective Order; and granting in part and denying in part 36 Motion to Stay and for Protective Order − Signed by Magistrate Judge Anthony P. Patti. (LBar) (Entered: 08/24/2017)
47 NOTICE TO APPEAR: Status Conference set for 10/2/2017 01:30 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 09/12/2017)
48 ORDER granting in part and denying in part 22 Motion to Dismiss; denying 23 Motion to Dismiss; denying 25 Motion for Judgment. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 09/29/2017)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Status Conference held on 10/2/2017: Plaintiffs to file Motion by 10/15/2017, Discovery Motions to be filed 11/8/2017, Discovery Cut−off: 11/22/2017, Final Pre−Hearing Conference set for 11/21/2017 11:00 AM before District Judge Arthur J. Tarnow, Motion Hearing set for 12/4/2017 at 9:00 a.m. before District Judge Arthur J. Tarnow . (Court Reporter: Darlene May) (MLan) (Entered: 10/03/2017)
49 ATTORNEY APPEARANCE: Margaret A. Bettenhausen appearing on behalf of Michigan Department of Education (Bettenhausen, Margaret) (Entered: 10/10/2017)
50 ATTORNEY APPEARANCE: Nathan A. Gambill appearing on behalf of Michigan Department of Education (Gambill, Nathan) (Entered: 10/10/2017)
51 ATTORNEY APPEARANCE: Richard S. Kuhl appearing on behalf of Michigan Department of Education (Kuhl, Richard) (Entered: 10/10/2017)
52 ATTORNEY APPEARANCE: Zachary C. Larsen appearing on behalf of Michigan Department of Education (Larsen, Zachary) (Entered: 10/10/2017)

10/13/2017 10/13/2017 10/16/2017
10/16/2017 10/16/2017
10/16/2017 10/16/2017 10/16/2017 10/16/2017 10/16/2017 10/19/2017 10/20/2017
10/23/2017 10/23/2017 10/24/2017 10/24/2017 10/24/2017 10/26/2017 10/26/2017

53 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Michigan Department of Education. (Comstock, Travis) (Entered: 10/13/2017)
54 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Flint Community Schools. (Miller, Brett) (Entered: 10/13/2017)
55 NOTICE OF APPEAL by Genesee Intermediate School District re 48 Order on Motion to Dismiss,, Order on Motion for Judgment. Receipt No: 0645−6438934 − Fee: $ 505 − Fee Status: Fee Paid. (Attachments: # 1 Exhibit OPINION) (Mullins, Timothy) (Entered: 10/16/2017)
56 Certificate of Service re 55 Notice of Appeal,. (Ahmed, N) (Entered: 10/16/2017)
57 NOTICE OF APPEAL by Michigan Department of Education re 48 Order on Motion to Dismiss,, Order on Motion for Judgment. Receipt No: 0645−6439012 − Fee: $ 505 − Fee Status: Fee Paid. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1) (Haynes, Timothy) (Entered: 10/16/2017)
58 Certificate of Service re 57 Notice of Appeal,. (Ahmed, N) (Entered: 10/16/2017)
59 NOTICE OF APPEAL by Flint Community Schools re 48 Order on Motion to Dismiss,, Order on Motion for Judgment. Receipt No: 0645−6439144 − Fee: $ 505 − Fee Status: Fee Paid. (Richotte, Joseph) (Entered: 10/16/2017)
60 Certificate of Service re 59 Notice of Appeal. (Ahmed, N) (Entered: 10/16/2017)
61 Ex Parte MOTION for Leave to File Excess Pages /Plaintiffs' Ex Parte Motion for Extension of Page Limitation by All Plaintiffs. (Heck, Lindsay) (Entered: 10/16/2017)
62 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Plaintiffs' Appendix of Unpublished Cases) (Heck, Lindsay) (Entered: 10/16/2017)
TEXT−ONLY ORDER granting 61 Ex Parte MOTION for Leave to File Excess Pages. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/19/2017)
63 TRANSCRIPT of Status Conference held on October 2, 2017. (Court Reporter: Darlene K. May) (Number of Pages: 47) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/13/2017. Redacted Transcript Deadline set for 11/20/2017. Release of Transcript Restriction set for 1/18/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (May, D) (Entered: 10/20/2017)
64 MOTION for Stay of Proceedings by Michigan Department of Education. (Attachments: # 1 Exhibit Exhibit A− Minute Entry) (Larsen, Zachary) (Entered: 10/23/2017)
65 MOTION for Stay of Proceedings (Corrected) by Michigan Department of Education. (Attachments: # 1 Exhibit Exhibit A − Minute Entry) (Larsen, Zachary) (Entered: 10/23/2017)
66 RESPONSE to 65 MOTION for Stay of Proceedings (Corrected) concurrence filed by Genesee Intermediate School District. (Mullins, Timothy) (Entered: 10/24/2017)
67 NOTICE TO APPEAR: Status Conference set for 10/26/2017 02:00 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 10/24/2017)
68 MOTION TO SUSPEND PRETRIAL PROCEEDINGS, STAY PROCEEDINGS, OR ADJOURN HEARING ON MOTION FOR PRELIMINARY INJUNCTION by Flint Community Schools. (Richotte, Joseph) (Entered: 10/24/2017)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Status Conference held on 10/26/2017. (Court Reporter: Lawrence Przybysz) (MLan) (Entered: 10/26/2017)
TEXT−ONLY NOTICE as to 68 MOTION TO SUSPEND PRETRIAL PROCEEDINGS, STAY PROCEEDINGS, OR ADJOURN HEARING ON MOTION

10/26/2017 10/27/2017
10/27/2017 10/30/2017 10/30/2017
10/31/2017 11/01/2017 11/02/2017 11/06/2017
11/06/2017 11/09/2017 11/10/2017

FOR PRELIMINARY INJUNCTION , 64 MOTION for Stay of Proceedings, 65 MOTION for Stay of Proceedings (Corrected). Responses due by 10/30/2017. (MLan) (Entered: 10/26/2017)
TEXT−ONLY NOTICE as to 62 MOTION for Preliminary Injunction. Response due by 11/10/2017. (MLan) (Entered: 10/26/2017)
69 TRANSCRIPT of Motion Hearing held on October 26, 2017. (Court Reporter/Transcriber: Lawrence Przybysz) (Number of Pages: 45) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/17/2017. Redacted Transcript Deadline set for 11/27/2017. Release of Transcript Restriction set for 1/25/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Przybysz, L) (Entered: 10/27/2017)
70 MOTION to Adjourn Dates (Action Requested by November 3, 2017) by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A− Minute Entry, # 3 Exhibit B− Hearing Transcript) (Larsen, Zachary) (Entered: 10/27/2017)
71 NOTICE of Joinder/Concurrence in 70 MOTION to Adjourn Dates (Action Requested by November 3, 2017) filed by Michigan Department of Education by Flint Community Schools (Miller, Brett) (Entered: 10/30/2017)
72 RESPONSE to 68 MOTION TO SUSPEND PRETRIAL PROCEEDINGS, STAY PROCEEDINGS, OR ADJOURN HEARING ON MOTION FOR PRELIMINARY INJUNCTION , 70 MOTION to Adjourn Dates (Action Requested by November 3, 2017), 64 MOTION for Stay of Proceedings, 65 MOTION for Stay of Proceedings (Corrected) filed by All Plaintiffs. (Attachments: # 1 Exhibit Motion to Dismiss for Lack of Jurisdiction, # 2 Exhibit Appendix of Unpublished Cases) (Korobkin, Daniel) (Entered: 10/30/2017)
73 NOTICE of Joinder/Concurrence in 70 MOTION to Adjourn Dates (Action Requested by November 3, 2017) filed by Michigan Department of Education, 66 Response to Motion filed by Genesee Intermediate School District by Genesee Intermediate School District (Mullins, Timothy) (Entered: 10/31/2017)
74 REPLY to Response re 65 MOTION for Stay of Proceedings (Corrected) filed by Michigan Department of Education. (Attachments: # 1 Exhibit A− Motion Transcript 10−26−2017) (Larsen, Zachary) (Entered: 11/01/2017)
75 ORDER denying 64 Motion for Stay; denying 65 Motion for Stay; denying 68 Motion for Stay; denying 70 Motion to Adjourn. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/02/2017)
76 TRANSCRIPT of Motion For Protective Order/Motion to Stay held on 08/17/2017. (Court Reporter/Transcriber: Linda M. Cavanagh) (Number of Pages: 56) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/27/2017. Redacted Transcript Deadline set for 12/7/2017. Release of Transcript Restriction set for 2/5/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Cavanagh, Linda) (Entered: 11/06/2017)
77 Redacted Version of 76 TRANSCRIPT of Motion For Protective Order/Motion to Stay held on 08/17/2017. Release of Transcript Restriction set for 2/5/2018. (Cavanagh, Linda) (Entered: 11/06/2017)
TEXT−ONLY NOTICE of TIME and DATE CHANGE: Final Pre−Hearing Conference set for 11/20/2017 03:30 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 11/09/2017)
78 MOTION for Leave to File Excess Pages by Genesee Intermediate School District. (Mullins, Timothy) (Entered: 11/10/2017)

11/10/2017
11/10/2017 11/10/2017 11/10/2017
11/13/2017 11/13/2017
11/13/2017
11/13/2017 11/15/2017 11/16/2017 11/16/2017 11/16/2017

79 RESPONSE to 62 MOTION for Preliminary Injunction filed by Genesee Intermediate School District. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A. Special Education Mandatory Plan, # 3 Exhibit B. GUD Marketing Material, # 4 Exhibit C. Sample advertising material, # 5 Exhibit D. 10 steps to help protect your family, # 6 Exhibit E. Pediatric Lead Exposure Flint Water Results, # 7 Exhibit F. Information re students eligible for special education services, # 8 Exhibit G. Agreement and Program Plan, # 9 Exhibit H. Summaries of GISD response to water situation, # 10 Exhibit I. Agreement and Program Plan, # 11 Exhibit J. National Marketing Awards, # 12 Exhibit K. 10/2/17 status conference) (Mullins, Timothy) (Entered: 11/10/2017)
80 MOTION for Leave to File Excess Pages by Michigan Department of Education. (Haynes, Timothy) (Entered: 11/10/2017)
81 RESPONSE to 62 MOTION for Preliminary Injunction filed by Michigan Department of Education. (Haynes, Timothy) (Entered: 11/10/2017)
82 RESPONSE to 62 MOTION for Preliminary Injunction CORRECTED 81 filed by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Schoof Decl., # 3 Exhibit Groetsch Decl., # 4 Exhibit Ferrari Decl., # 5 Exhibit Moran Decl., # 6 Exhibit Kovalchick Decl., # 7 Exhibit Detroit News Article, # 8 Exhibit DeMars−Johnson Decl., # 9 Exhibit Lower Decl., # 10 Exhibit Brewer Walraven Decl., # 11 Exhibit Golzynski Decl., # 12 Exhibit Schretlen Decl., # 13 Exhibit U.S. v Arkansas, # 14 Exhibit Chapman Decl., # 15 Exhibit Johnston v. New Miami) (Haynes, Timothy) (Entered: 11/10/2017)
83 MOTION for Leave to File Excess Pages by Flint Community Schools. (Miller, Donald) (Entered: 11/13/2017)
84 RESPONSE to 62 MOTION for Preliminary Injunction filed by Flint Community Schools. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A−Declaration of Melinda Carroll, # 3 Exhibit B−Inventory of Evaluation Tools, # 4 Exhibit C−DK File Documents, # 5 Exhibit D−ON File Documents, # 6 Exhibit E−Dept. of Educ, State of Haw. v. Cari Rae S., # 7 Exhibit F−October 2, 2017 Status Conference Transcript, # 8 Exhibit G−Ellen R. Shell, Gauging the Effects of Lead, # 9 Exhibit H−Lecero v. Detroit Pub. Sch,) (Miller, Donald) (Entered: 11/13/2017)
85 Emergency MOTION to Compel Independent Medical Examinations or to Adjourn Dates by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Minute Entry 10−03−2017, # 3 Exhibit 2 − Hearing Transcript 10−26−2017, # 4 Exhibit 3 − Huffman Declaration, # 5 Exhibit 3−A − Huffman CV, # 6 Exhibit 3−B − Huffman Legal Fee Schedule, # 7 Exhibit 4 − Declaration of Renee Lajiness−O'Neill, # 8 Exhibit 4−A − Lajiness−O'Neill CV, # 9 Exhibit 5 − Letter − Little, Gregory 2017−10−31, # 10 Exhibit 6 − Little E−mail 11−02−2017, # 11 Exhibit 7 − Larsen E−mail 11−03−2017, # 12 Exhibit 8 − Larsen E−mail 11−08−2017, # 13 Exhibit 9 − Larsen E−mail 11−09−2017, # 14 Exhibit 10 − Larsen E−mail Continued 11−09−2017, # 15 Exhibit 11 − Larsen E−mail 11−10−2017, # 16 Exhibit 12 − E−mail and ACLU Letter, # 17 Exhibit 13 − Larsen E−mail 11−10−2017) (Larsen, Zachary) (Entered: 11/13/2017)
86 STATEMENT of Resolved and Unresolved Issues /Joint List of Unresolved Issues Regarding Docket Entries 62, 79, 81, 82, and 84 by All Plaintiffs (Heck, Lindsay) (Entered: 11/13/2017)
87 NOTICE of Joinder/Concurrence in 85 Emergency MOTION to Compel Independent Medical Examinations or to Adjourn Dates filed by Michigan Department of Education by Genesee Intermediate School District (Mullins, Timothy) (Entered: 11/15/2017)
88 NOTICE by Genesee Intermediate School District re 87 Notice of Joinder/Concurrence withdrawal (Mullins, Timothy) (Entered: 11/16/2017)
89 STIPULATED PROTECTIVE ORDER Regarding FERPA, Confidential Records and Claw Back. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/16/2017)
90 TRANSCRIPT of Motion Hearing held on August 23, 2017. (Court Reporter/Transcriber: Lawrence R. Przybysz) (Number of Pages: 45) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the

11/17/2017 11/17/2017 11/20/2017 11/22/2017
11/28/2017 11/28/2017 01/11/2018 01/22/2018 01/22/2018 01/22/2018 01/22/2018
01/22/2018 01/22/2018 01/22/2018

transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 12/7/2017. Redacted Transcript Deadline set for 12/18/2017. Release of Transcript Restriction set for 2/14/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Przybysz, L) (Entered: 11/16/2017)
91 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (Heck, Lindsay) (Entered: 11/17/2017)
92 REPLY to Response re 62 MOTION for Preliminary Injunction /Plaintiffs' Reply Brief in Support of Motion for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Plaintiffs Appendix of Unpublished Cases) (Heck, Lindsay) (Entered: 11/17/2017)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Final Pre−Hearing Status Conference held on 11/20/2017. (Court Reporter: Lawrence Przybysz) (MLan) (Entered: 11/20/2017)
TEXT−ONLY ORDER granting 91 Ex Parte MOTION for Leave to File Excess Pages filed by Plaintiffs, granting 78 MOTION for Leave to File Excess Pages filed by Genesee Intermediate School District, granting 80 MOTION for Leave to File Excess Pages filed by Michigan Department of Education, granting 83 MOTION for Leave to File Excess Pages filed by Flint Community Schools. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/22/2017)
93 STIPULATED ORDER Adjourning Hearing as to 62 MOTION for Preliminary Injunction: Motion Hearing set for 1/29/2018 08:30 AM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/28/2017)
94 ORDER from U.S. Court of Appeals − Sixth Circuit re 55 Notice of Appeal, filed by Genesee Intermediate School District, 59 Notice of Appeal filed by Flint Community Schools, 57 Notice of Appeal, filed by Michigan Department of Education [Appeal Case Number 17−2255] (Krause, S) (Entered: 11/29/2017)
95 NOTICE TO APPEAR: Status Conference set for 1/22/2018 11:00 AM re Hearing set to begin 1/29/2018 before District Judge Arthur J. Tarnow. (MLan) (Entered: 01/11/2018)
96 WITNESS LIST by Genesee Intermediate School District (Mullins, Timothy) (Entered: 01/22/2018)
97 SUPPLEMENTAL BRIEF re 62 MOTION for Preliminary Injunction filed by Genesee Intermediate School District. (Attachments: # 1 Exhibit 1 − Keranen dep) (Mullins, Timothy) (Entered: 01/22/2018)
98 Joint MOTION in Limine to Exclude Evidence of Individual Plaintiffs by Flint Community Schools, Genesee Intermediate School District. (Miller, Brett) (Entered: 01/22/2018)
99 MOTION to Strike and Exclude Testimony of Plaintiffs' Experts Dr. Lidsky and Dr. Sudhalter by Michigan Department of Education. (Attachments: # 1 Exhibit A − Schretlen Decl., # 2 Exhibit B − Huffman Decl., # 3 Exhibit C − Schoof Decl., # 4 Exhibit D − Groetsch Decl., # 5 Exhibit E − Wilson & Wilson Study, # 6 Exhibit F − Shinnar Aff.) (Larsen, Zachary) (Entered: 01/22/2018)
100 NOTICE of Joinder/Concurrence in 99 MOTION to Strike and Exclude Testimony of Plaintiffs' Experts Dr. Lidsky and Dr. Sudhalter filed by Michigan Department of Education by Genesee Intermediate School District (Mullins, Timothy) (Entered: 01/22/2018)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Status Conference held on 1/22/2018. (Court Reporter: Lawrence Przybysz) (MLan) (Entered: 01/22/2018)
101 MOTION in Limine to Strike and Exclude Testimony of Kris Keranen (MP&AS) by Michigan Department of Education. (Attachments: # 1 Exhibit) (Comstock, Travis) (Entered: 01/22/2018)

01/23/2018 01/23/2018 01/23/2018
01/25/2018 01/25/2018 01/25/2018 01/25/2018 01/26/2018 01/26/2018
01/26/2018 01/26/2018 02/02/2018 02/02/2018 02/02/2018 02/05/2018

102 MOTION in Limine To Strike Plaintiffs' Requested Injunctive Relief by Michigan Department of Education. (Comstock, Travis) (Entered: 01/23/2018)
103 NOTICE of Joinder/Concurrence in 98 Joint MOTION in Limine to Exclude Evidence of Individual Plaintiffs filed by Genesee Intermediate School District, Flint Community Schools by Michigan Department of Education (Haynes, Timothy) (Entered: 01/23/2018)
104 ORDER REFERRING OTHER MATTERS to Magistrate Judge Anthony J. Patti: Status Conference to narrow the issues re 62 Motion for Preliminary Injuction prior to hearing. Conference to be held in 629 (Magistrate Judge Patti's Chambers) on 1/24/2018 at 10:00 a.m. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 01/23/2018)
105 NOTICE by Michigan Department of Education of withdrawal of 101 MOTION in Limine to Strike and Exclude Testimony of Kris Keranen (MP&AS) . (Haynes, Timothy) (Entered: 01/25/2018)
106 NOTICE by Michigan Department of Education of withdrawal of 102 MOTION in Limine To Strike Plaintiffs' Requested Injunctive Relief . (Haynes, Timothy) (Entered: 01/25/2018)
107 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 1/25/2018 05:00 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 01/25/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Telephonic Status Conference held on 1/25/2018 (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 01/25/2018)
108 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 1/26/2018 03:00 PM before District Judge Arthur J. Tarnow (CPic) (Entered: 01/26/2018)
109 EXHIBIT L−U re 79 Response to Motion,,, by Genesee Intermediate School District (Attachments: # 1 Index of Exhibits, # 2 Exhibit L.Polega deposition, # 3 Exhibit M.Tawwav deposition, # 4 Exhibit N.Wager deposition, # 5 Exhibit O.Carroll deposition, # 6 Exhibit P.Schretlen deposition, # 7 Exhibit Q.Costello deposition, # 8 Exhibit R.Chapman deposition, # 9 Exhibit S.Declaration of Cherie Wager, # 10 Exhibit T.MSU/GISD subcontract, # 11 Exhibit U.Keranen deposition) (Mullins, Timothy) (Entered: 01/26/2018)
110 RESPONSE to 99 MOTION to Strike and Exclude Testimony of Plaintiffs' Experts Dr. Lidsky and Dr. Sudhalter / Plaintiffs' Opposition to Defendants' Motion to Strike and Exclude Testimony of Plaintiffs' Expert Dr. Lidsky filed by All Plaintiffs. (Heck, Lindsay) (Entered: 01/26/2018)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Telephonic Status Conference held on 1/26/2018: Hearing as to 62 MOTION for Preliminary Injunction ADJOURNED TO 2/5/2018 08:30 AM before District Judge Arthur J. Tarnow. (CPic) (Entered: 01/29/2018)
111 ORDER REFERRING OTHER MATTERS to Magistrate Judge Anthony P. Patti : Settlement Conference. Conference to be held on 2/5/2018 at 10:00 a.m. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/02/2018)
TEXT−ONLY NOTICE as to 62 MOTION for Preliminary Injunction. Motion Hearing ADJOURNED TO 2/20/2018 09:00 AM before District Judge Arthur J. Tarnow. (MLan) (Entered: 02/02/2018)
112 REPLY to Response re 99 MOTION to Strike and Exclude Testimony of Plaintiffs' Experts Dr. Lidsky and Dr. Sudhalter filed by Michigan Department of Education. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B) (Larsen, Zachary) (Entered: 02/02/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 2/5/2018, Set Deadlines/Hearings:( CONTINUATION of Settlement Conference set for 2/7/2018 10:00 AM before Magistrate Judge Anthony P. Patti) Disposition: Settlement Conference held and continued. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 02/05/2018)

02/07/2018
02/12/2018 02/13/2018 02/15/2018 02/20/2018 03/06/2018 04/06/2018 04/09/2018 04/12/2018
04/12/2018 04/12/2018 05/03/2018
05/08/2018 05/29/2018 05/29/2018
06/20/2018 06/29/2018

Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 2/7/2018, Set Deadlines/Hearings:( CONTINUATION OF Settlement Conference set for 2/12/2018 12:00 PM before Magistrate Judge Anthony P. Patti) Disposition: Held and Continued. (Court Reporter: None Present, Not on the Record) (MWil) Modified on 2/8/2018 (MWil). (Entered: 02/08/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 2/12/2018. Disposition: Held and Concluded. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 02/12/2018)
113 NOTICE TO APPEAR: Status Conference set for 2/20/2018 11:45 AM before District Judge Arthur J. Tarnow (CPic) (Entered: 02/13/2018)
TEXT−ONLY NOTICE: Hearing on Motion for Preliminary Injunction 2/20/2018 is Cancelled. (MLan) (Entered: 02/15/2018)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Status Conference held on 2/20/2018. (MLan) (Entered: 02/20/2018)
114 NOTICE TO APPEAR: Status Conference set for 4/11/2018 11:00 AM before District Judge Arthur J. Tarnow. (MLan) (Entered: 03/06/2018)
TEXT−ONLY NOTICE: Status Conference ADJOURNED TO 4/12/2018 12:00 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 04/06/2018)
115 STIPULATION Regarding Partial Settlement and Request for Hearing by All Plaintiffs (Attachments: # 1 Exhibit A − Settlement Agreement) (Heck, Lindsay) (Entered: 04/09/2018)
116 STIPULATION AND ORDER Approving Partial Settlement Agreement and Dismissing Child Find Claims with Prejudice and denying as moot 62 MOTION for Preliminary Injunction filed by Plaintiffs. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 04/12/2018)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Hearing held on 4/12/2018 Approving 115 Stipulation for Partial Settlement. (Court Reporter: Lawrence Przybysz) (MLan) (Entered: 04/12/2018)
117 ORDER finding as moot 98 Motion in Limine; finding as moot 99 Motion to Strike. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 04/12/2018)
118 STIPULATED ORDER of Voluntary Dismissal with Prejudice of Plaintiffs' Claim Against Defendant Michigan Department of Education for Violation of the American with Disabilities Act. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 05/03/2018)
119 NOTICE TO APPEAR: Status Conference set for 5/29/2018 02:30 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 05/08/2018)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Scheduling Conference held on 5/29/2018. (Court Reporter: Lawrence Przybysz) (MLan) (Entered: 05/29/2018)
120 SCHEDULING ORDER: Class Certification Motions to be filed by 9/14/2018, Expert Discovery due by 2/1/2019, Dispositive Motion Cut−off set for 2/15/2019, Joint Final Pretrial Order due 5/9/2019, Final Pretrial Conference set for 5/16/2019 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 05/29/2018)
121 NOTICE TO APPEAR: CONTINUATION of Settlement Conference set for 6/29/2018 01:30 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 06/20/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 6/29/2018, Set Deadlines/Hearings:( CONTINUATION of Settlement Conference set for 7/23/2018 10:00 AM before Magistrate Judge Anthony P. Patti) Disposition: Settlement Conference Held and Continued. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 06/29/2018)

07/23/2018 08/22/2018 09/06/2018 10/01/2018
10/04/2018 10/04/2018 10/09/2018 10/10/2018 10/15/2018 10/15/2018

Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 7/23/2018,:( CONTINUATION of Settlement Conference set for 8/22/2018 10:00 AM before Magistrate Judge Anthony P. Patti) Disposition: Settlement Conference Held and Continued. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 07/23/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 8/22/2018,:( CONTINUATION of Settlement Conference set for 10/4/2018 10:00 AM before Magistrate Judge Anthony P. Patti) Disposition: Settlement Conference Held and Continued. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 08/22/2018)
122 SECOND AMENDEDE SCHEDULING ORDER: Motion to Certify Class due by 10/15/2018, Dispositive Motion Cut−off set for 3/18/2019 Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 09/06/2018)
123 MOTION to Compel Plaintiffs' Discovery Responses, MOTION TO EXTEND Class Certification Discovery for Limited Purpose , MOTION to Strike or Preclude Plaintiffs' Use of Reports or Witnesses to Support Class Certification Motion by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − 1)MDEs First Class Discovery Requests", # 3 Exhibit 2 − 2)Plaintiffs Responses And Objections To Defendant MDEs First Set Of Class Discovery Requests, # 4 Exhibit 3 − 3)Cason−Merenda v. Detroit Med. Ctr.) (Comstock, Travis) (Entered: 10/01/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 10/4/2018. Disposition: Held and Continued. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 10/04/2018)
124 ORDER SETTING FUTURE DATES., ( TELEPHONIC Status Conference set for 11/19/2018 10:00 AM before Magistrate Judge Anthony P. Patti, CONTINUATION of Settlement Conference set for 12/12/2018 10:00 AM before Magistrate Judge Anthony P. Patti)−−Signed by Magistrate Judge Anthony P. Patti.(MWil). (Entered: 10/04/2018)
125 ORDER REFERRING MOTION to Magistrate Judge Anthony P. Patti: 123 MOTION to Compel Plaintiffs' Discovery Responses, to Extend Class Certification Discovery for Limited Purpose or to Strike or Preclude Plaintiffs' Use of Reports or Witnesses to Support Class Certification Motion filed by Michigan Department of Education. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/09/2018)
126 NOTICE OF HEARING on 123 MOTION to Compel Plaintiffs' Discovery Responses MOTION TO EXTEND Class Certification Discovery for Limited Purpose MOTION to Strike or Preclude Plaintiffs' Use of Reports or Witnesses to Support Class Certification Motion. Resolved/Unresolved Issues due by 11/26/2018, Motion Hearing set for 11/29/2018 10:00 AM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 10/10/2018)
127 MOTION for Leave to File Excess Pages /Plaintiffs' Ex Parte Motion for Extension of Page Limit by AK, Jeree Brown, CD, CDM, CM, CW, DD, DK, DR, DT, Willie Daniels, Manita Davis, Twanda Davis, JB, JT, JW, Angy Keelin, Rachel Kirksey, MK, Crystal McCadden, NS, ON, Dawn Richardson, Nakiya Wakes, Chandrika Walker, Kathy Wright. (Heck, Lindsay) (Entered: 10/15/2018)
128 MOTION to Certify Class /Plaintiffs' Motion for Class Certification by AK, Jeree Brown, CD, CDM, CM, CW, DD, DK, DR, DT, Willie Daniels, Manita Davis, Twanda Davis, JB, JT, JW, Angy Keelin, Rachel Kirksey, MK, Crystal McCadden, NS, ON, Dawn Richardson, Nakiya Wakes, Chandrika Walker, Kathy Wright. (Attachments: # 1 Brief in Support of Plaintiffs' Motion for Class Certification, # 2 Index of Exhibits, # 3 Exhibit 1− Declaration of Lindsay M. Heck, Esq., # 4 Exhibit 1−2, # 5 Exhibit 1−3, # 6 Exhibit 2− Declaration of William J. Therrien, # 7 Exhibit 3− Declaration of Gail E. Lovette, # 8 Exhibit 4− Reliance List for William J. Therrien, # 9 Exhibit 5− Reliance List for Gail E. Lovette, # 10 Exhibit 6− Declaration of Karen Christian, UTF President, # 11 Exhibit 7− Declaration of Lindsay M. Heck for White & Case LLP, # 12 Exhibit 8− Declaration of Daniel S. Korobkin for ACLU of Michigan, # 13 Exhibit 9− Declaration of Gregory G. Little for Education Law Center, # 14 Plaintiffs' Appendix of Unpublished Cases) (Heck, Lindsay) (Entered:

10/15/2018
10/16/2018 10/17/2018 10/22/2018
10/23/2018 11/01/2018
11/02/2018 11/04/2018 11/19/2018 12/06/2018 12/07/2018
12/12/2018 12/19/2018 12/19/2018 12/21/2018

10/15/2018)
129 RESPONSE to 123 MOTION to Compel Plaintiffs' Discovery Responses MOTION TO EXTEND Class Certification Discovery for Limited Purpose MOTION to Strike or Preclude Plaintiffs' Use of Reports or Witnesses to Support Class Certification Motion /Plaintiffs' Memorandum of Law in Response to Defendant's Motion to Compel Production filed by AK, Jeree Brown, CD, CDM, CM, CW, DD, DK, DR, DT, Willie Daniels, Manita Davis, Twanda Davis, JB, JT, JW, Angy Keelin, Rachel Kirksey, MK, Crystal McCadden, NS, ON, Dawn Richardson, Nakiya Wakes, Chandrika Walker, Kathy Wright. (Heck, Lindsay) (Entered: 10/15/2018)
130 MOTION for Extension of Time to File Response/Reply as to 128 MOTION to Certify Class /Plaintiffs' Motion for Class Certification by Genesee Intermediate School District. (Miller, John) (Entered: 10/16/2018)
131 STIPULATION AND ORDER Extending Time to File Response and Reply as to 128 MOTION to Certify Class: Response due by 12/5/2018, Reply due by 12/28/2018. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/17/2018)
132 REPLY to Response re 123 MOTION to Compel Plaintiffs' Discovery Responses MOTION TO EXTEND Class Certification Discovery for Limited Purpose MOTION to Strike or Preclude Plaintiffs' Use of Reports or Witnesses to Support Class Certification Motion filed by Michigan Department of Education. (Attachments: # 1 Index of Exhibits, # 2 Exhibit e−emails dated August 24 and September 12) (Comstock, Travis) (Entered: 10/22/2018)
133 STIPULATION AND ORDER Allowing Withdrawal of Attorney Kary L. Moss. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/23/2018)
134 NOTICE by Michigan Department of Education of withdrawal of 123 MOTION to Compel Plaintiffs' Discovery Responses MOTION TO EXTEND Class Certification Discovery for Limited Purpose MOTION to Strike or Preclude Plaintiffs' Use of Reports or Witnesses to Support Class Certification Motion . (Comstock, Travis) (Entered: 11/01/2018)
135 NOTICE by Michigan Department of Education AMENDED Notice of Withdrawal (ECF 134) of Motion to Compel Plaintiffs' Discovery Responses (ECF 123) (Comstock, Travis) (Entered: 11/02/2018)
TEXT−ONLY NOTICE: Motion Hearing on 11/29/2018 is Cancelled re: 126 Notice of Hearing on Motion, (MWil) (Entered: 11/04/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Telephonic Status Conference held on 11/19/2018. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 11/19/2018)
136 ORDER Requiring Plaintiff's to Provide a supplemental settlement summary−−Signed by Magistrate Judge Anthony P. Patti. (MWil) (Entered: 12/06/2018)
137 THIRD AMENDED SCHEDULING ORDER: Class Certification Discovery due by 2/8/2019, Merit Facts Discovery due by 2/17/2019, Class Certification Motion due 10/15/2018, Dispositive Motion Cut−off set for 5/1/2019, Final Pretrial Conference set for 5/16/2019 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 12/07/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 12/12/2018. Disposition: Settlement Conference Held. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 12/13/2018)
138 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 1/16/2019 02:00 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 12/19/2018)
139 NOTICE TO APPEAR BY TELEPHONE: Status Conference RESET TO 1/2/2019 02:00 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 12/19/2018)
TEXT−ONLY ORDER: The Court considers the settlement conference in this case to be an ongoing event, until such time as the Court declares it to be concluded. To that end, the parties may contact the Undersigned, ex parte, (in writing or by phone) to

01/02/2019 01/03/2019 01/03/2019 01/11/2019 02/06/2019
02/25/2019
03/28/2019
05/09/2019 06/05/2019
07/10/2019 07/17/2019 07/19/2019
08/23/2019

continue discussing ways to resolve this matter. The Court notes that Gregory Little, counsel for the Plaintiffs has contacted the Court today for this purpose, and counsel for the other parties are likewise invited to do so as necessary−−Entered by Magistrate Judge Anthony P. Patti. (MWil) (Entered: 12/21/2018)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Telephonic Status Conference held on 1/2/2019. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 01/03/2019)
140 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 2/6/2018 02:00 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 01/03/2019)
141 RE−NOTICE TO APPEAR BY TELEPHONE: Status Conference RESET TO 2/6/2019 02:00 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 01/03/2019)
142 STIPULATED FOURTH AMENDED SCHEDULING ORDER: Dispositive Motion Cut−off set for 7/1/2019 Final Pretrial Conference set for 7/15/2019 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 01/11/2019)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Telephonic Status Conference held on 2/6/2019, ( TELEPHONIC Status Conference set for 2/25/2019 12:00 PM before Magistrate Judge Anthony P. Patti)Disposition: Status conference held. An additional status conference will be held by phone on February 25, 2019 at 12:00 p.m., unless the parties have submitted a new amended scheduling order, in which case the additional status conference will be cancelled. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 02/07/2019)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Telephonic Status Conference held on 2/25/2019, Set Deadlines/Hearings:( TELEPHONIC Status Conference set for 5/9/2019 11:30 AM before Magistrate Judge Anthony P. Patti) (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 02/25/2019)
143 FIFTH AMENDED SCHEDULING ORDER: Class Certification Discovery due by 6/24/2019, Dispositive Motion Cut−off set for 9/17/2019, Final Pretrial Conference set for 9/30/2019 02:30 PM before District Judge Arthur J. Tarnow. (See image for complete list of dates.) Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 03/28/2019)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Telephonic Status Conference held on 5/9/2019, ( Continuation of Settlement Conference (IN PERSON) set for 7/12/2019 10:00 AM before Magistrate Judge Anthony P. Patti) (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 06/07/2019)
144 STIPULATED SIXTH AMENDED SCHEDULING ORDER: Expert Discovery due by 10/3/2019 , Dispositive Motion Cut−off set for 10/17/2019 Joint Final Pretrial Order due 10/23/2019, Final Pretrial Conference set for 10/30/2019 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 06/05/2019)
145 RE−NOTICE TO APPEAR: Continuation of Settlement Conference RESET TO 8/23/2019 10:00 AM before Magistrate Judge Anthony P. Patti**DATE RESET AT PARTIES' REQUEST.** (MWil) (Entered: 07/10/2019)
TEXT−ONLY ORDER granting 127 MOTION for Leave to File Excess Pages. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 07/17/2019)
146 SEVENTH STIPULATED AMENDED SCHEDULING ORDER: Expert Discovery due by 12/9/2019, Dispositive Motion Cut−off set for 12/23/2019, Joint Final Pretrial Order due 1/14/2020, Final Pretrial Conference set for 1/21/2020 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 07/19/2019)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 8/23/2019, Set Deadlines/Hearings:( Continuation of Settlement Conference set for 10/28/2019 10:00 AM before Magistrate Judge Anthony P.

08/29/2019 10/23/2019
10/28/2019 10/28/2019 12/17/2019 01/10/2020 01/13/2020
01/15/2020 01/24/2020 02/12/2020 03/03/2020 03/04/2020

Patti)**IN PERSON** Disposition: Held and Continued. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 08/23/2019)
147 STIPULATED ORDER Allowing Attorney Michael J. Steinberg to Withdraw as Co−Counsel. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 08/29/2019)
148 EIGHTH STIPULATED AMENDED SCHEDULING ORDER: Expert Discovery due by 2/10/2020, Dispositive Motion Cut−off set for 2/24/2020, Joint Final Pretrial Order due 3/9/2020, Final Pretrial Conference set for 3/16/2020 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 10/23/2019)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 10/28/2019. Disposition: Held and Continued. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 10/28/2019)
149 NOTICE TO APPEAR BY TELEPHONE: CONTINUATION OF Settlement Conference set for 12/17/2019 10:30 AM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 10/28/2019)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Settlement Conference held on 12/17/2019. Disposition: Settlement Conference held and continued. Continuation date to be determined. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 12/17/2019)
150 MOTION for Withdrawal of Attorney Zachary C. Larsen by Michigan Department of Education. (Attachments: # 1 Exhibit A−Proposed Order) (Larsen, Zachary) (Entered: 01/10/2020)
151 NINTH AMENDED STIPULATED SCHEDULING ORDER: Class Certification Discovery due by 3/31/2020, Dispositive Motion Cut−off set for 6/15/2020 Final Pretrial Conference set for 6/29/2020 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 01/13/2020)
152 ORDER granting 150 MOTION for Withdrawal of Attorney Zachary C. Larsen filed by Michigan Department of Education. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 01/15/2020)
153 NOTICE of Appearance by Elizabeth R. Husa Briggs on behalf of Michigan Department of Education. (Briggs, Elizabeth) (Entered: 01/24/2020)
154 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 3/3/2020 10:00 AM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 02/12/2020)
Minute Entry for proceedings before Magistrate Judge Anthony P. Patti: Telephonic Status Conference held on 3/3/2020. (Court Reporter: None Present, Not on the Record) (MWil) (Entered: 03/03/2020)
155 NOTICE TO APPEAR: CONTINUATION of Settlement Conference set for 4/20/2020 12:00 PM before Magistrate Judge Anthony P. Patti (MWil) (Entered: 03/04/2020)