COLUr<IBIA LEGAL

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SERVICES

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SEt\ TTLE OFFICE

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT TACOMA

8

9 J.W., a minor, through his guardian ad litem,
SALVADOR MUNGIA; S.R., a minor, by 10 and through his parents, SAMUELU
REUPENA and TAFAOGA REUPENA,
11 Plaintiffs,
12 vs.
13 PIERCE COUNTY, a political sub-division
14 in the State of Washington; TACOMA PUBLIC SCHOOLS, a.k.a. Tacoma School
15 District No.1 0; and RANDY DORN, Superintendent of Public Instruction, in his
16 official capacity,

No. NOTICE OF REMOVAL

17

Defendants.

18

19

PLEASE TAKE NOTICE that Defendant Tacoma Public Schools (a.k.a. Tacoma

20 School District No. 10, hereinafter "District"), by and through its undersigned counsel, hereby

21 remove the above-captioned case from the Superior Court of the State of Washington for Pierce County to the United States -;:)istric: Court for the Western District of \Nashington in Tacoma

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;-JL .... _

1. The above action was filed on June 17, 2009, and served on the Defendant

2 District on June 17, 2009. The action is currently pending in the Superior Court of the State of

3 Washington for Pierce County, under Cause No. 09-2-10156-1.

4

2. This law fim1 represents the Defendant District in this action. As required by 28

5 U.S.C. § 1446(a), copies of all process, pleadings, and orders served on the Defendant District

6 are attached hereto as Exhibit 1.

7

3. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being

8 served upon counsel for the Plaintiffs 1.W., a minor, through his guardian ad litem, Salvador

9 Mungia; and S.R., a minor, by and through his parents, Samuelu Reupena and Tafaoga

Reupena, and Defendant Pierce County and Defendant Randy Dom, Superintendent of Public 10

Instruction, in his official capacity by and through their respective counsel. Additionally, a 11

copy of this Notice of Removal is being filed with the clerk of the Pierce County Superior 12

Court. 13
4. Pursuant to 28 U.S.C. § 1446(b), this Notice of Removal is filed within thirty 14
(30) days after the receipt of the Complaint by the Defendant District. 15
5. Plaintiffs' Complaint alleges, among other things that the District violated 16
Plaintiffs' civil rights under 42 U.S.C. § 1983. Plaintiffs allege that all Defendants violated the
17 Plaintiffs' due process rights, under the Fourteenth Amendment of the United States
18 Constitution and violated Plaintiffs' equal protection rights, under the Fourteenth Amendment

19 of the United States Constitution. (See Exhibit 1 at ~ 34-36,38-40 at pp. 7-8.)

20 6. This Court has jurisdiction over the subject matter of this action pursuant to 28

21 U.S.c. § 1443, as this is a civil rights case. This Court also has subject Inatter jurisdiction in

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the cns(." und8:~ 2f lJ

§ 1331, a~~ the District Courts have o:'igjna; jurisdiCTion over aU civil

. J~, . L~.
- '-

l embracing the place where the state court action is pending and is, therefore, the appropriate

2 Court for removal purposes pursuant to 28 U.S.C. § 1441.

3

8. Pursuant to Local Rule W.D. Wash. CR 5(e)(1), removal from Pierce County

4 Superior Court to the United States District Court, Western District of Washington in Tacoma

5 IS proper.

6

A DATED this

day of July, 2009.

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PATTERSON BUCHANAN

FOBES LEITCH & KALZER, INC., P.S.

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9 10

cMtC~ By Charles P~. LeitC,WSBA 25443
cpl@pattersonbuchanan.com

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2112 Third Avenue, Suite 500 Seattle, WA 98121

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Phone: (206)462-6700 Fax: (206)462-6701

Attorney for Defendant Tacoma School

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District No.1 0

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'")1 .:,,1

CERTIFICATE OF SERVICE

2 The undersigned certifies under penalty of perjury under the laws of the State of Washington tha
3 4 on the below date I caused to be served upon counsel listed below in the manner indicated a tm
5 and correct copy or the original of the foregoing and attached document.

6

Ms. Beth Colgan

7

Columbia Legal Services

101 Yesler Way, Suite 300

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Seattle, W A 98104

Via: [ ] U.S. Mail [ ] Facsimile [X] Legal Messenger

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Mr. Dierk Jon Meierbachtol

1125 Washington St. SE

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P.O. Box 40100

Olympia, WA 98504-0100 11

Via: [ ] U.S. Mail [ ] Facsimile [X] Legal Messenger

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Michelle Luna-Green

Deputy Prosecuting Attorney

Via: [ ] U.S. Mail

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955 Tacoma Avenue S., Suite 301

Tacoma, WA 98402

[ ] Facsimile [X] Legal Messenger

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Pierce County Superior Court

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County-City Bldg., #334

Via: [ ] U.S. Mail

930 Tacoma Avenue South

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Tacoma, WA 98402

[ ] Facsimile [X] Legal Messenger

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Dated at Seattle, Washington, this 1'5~ay of July, 2009.

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20

Valerie M. Allen, Legal Assistant

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2112 Third Avenue, Suite 500

Seattle, WA 98121

Phone: (206) 462-6700

?ax: (20tS, 462-6701

FILE. IN COUIIITY CLEI'!I('S OFfICE

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u. JUN I 7 2009 F.M,

l'tefl!C£ COUtf''t', WASHIHGT()N

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f(EVIN STOCK, eooMy ClfJtk

tly

"'PUTT

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

9

IN AND FOR THE COUNTY OF PIERCE

10 J.W., a minor, through his guardian ad litem, CLASS ACTION SALVADOR MUNGIA; S.R., a minor, by and
11 through his parents, SAMUELU REUPENA No.

09 2 10156 1

and TAFAOGA REUPENA,

12

SUMMONS

Plaintiffs,

13

vs.

14

PIERCE COUNTY, a political sub-division in

15 the State of Washington; TACOMA PUBLIC

SCHOOLS, a.k.a Tacoma School District No.

16 10; and RANDY DaRN, Superintendent of

Public Instruction, in his official capacity,

17

Defendant.

18

TO THE DEFENDANTS:

19

A lawsuil has been stm'ted against you in the above entitled court by J. W., a minor, through 20

his guardian acllitem, Salv3(:or !'Jlungia, and by S.R., a minor, by and through hi;:: parents, Samuelu

?lf~intiffs~ claims ar:~ stated !L tlle v,!r~.tl~L cornplaint. a

In order to defend against this lawsuit, you must respond to the complaint by stating your

2 defense in writing, and by serving a copy upon the persons signing this summons within 20 days

3 after the service of this summons, excluding the day or service, or a default judgment may be

4 entered against you without notice. A default judgment is one where plaintiffs are entitled to what

5 they ask for because you have not responded. If you serve a notice of appearance on the

6 undersigned persons, you are entitled to notice before a default judgment may be entered.

7

You may demand that the plaintiff file this lawsuit with the court. If you do so, the demand

8 must be in writing and must be served upon the persons signing the summons. Within 14 days after

9 you serve the demand, the plaintiff must file this lawsuit with the court, or the service on you ofthi8

10 summons and complaint will be void.

11

If you wish to seek the advice of an attorney in this matter, you should do so promptly so

12 that your written response, if any, may be served on time.

13

This summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the State of

]4 Washington.

15

DATED this 17th day of June, 2009.

16

COLUMBIA LEGAL SERVICES

17

Institutions Project

18 19

-------- By~

.....)

Gavin Thomton, WSBA #32996

20

Beth A. Colgan, WSBA #30520

Attorneys for Piain~iffs

2

IN

FilE D

COUNTY CLE,.K'S OFFICE

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A.II.

JUN 1 7 2009 P.M.

4

Pti<f1J!l"tCU1E1 BV_

CSOfU....H....t":· ""'"

OW~'""StHllINCt";r'orhN

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..;.. (}FPUTV

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IN THE SUPERlOR COURT OF THE STATE OF WASHINGTON

9

IN AND FOR THE COUNTY OF PIERCE

10 l.W., a minor, through his guardian ad litem, CLASS ACTION

SALVADOR MUNGIA; S.R., a minor, by and

09 2 10156 1

11 through his parents, SAMUELU REUPENA No.

and TAFAOGA REUPENA,

12

COMPLAINT FOR DECLARATORY AND

Plaintiffs,

INJUNCTIVE RELIEF

13

VS.
14 PIERCE COUNTY, a political sub-division in
15 the State of Washington; TACOMA PUBLIC SCHOOLS, a.k.a Tacoma School District No.
J6 10; and RANDY DORN, Superintendent of Public Instruction, in his official capacity,
17 Defendants.
18 Plaintiffs by and through their respective undersigned counsel, upon knowledge with

19 respect to their own acts and circumstances, and 011 information and belief as to other matters,

20 allege as follows:

I!\TRODI.JCTION

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have been denied their rights to an education, and their parents.

2

2.

Plaintiffs ask the court to grant declaratory and injunctive relief mandating that

3 the Defendants provide the Plaintiffc; confined to the jail and the class they seek to represent with

4 the education required by state and federal law. Plaintiffs also seek an award of reasonable

5 attorneys' fees and costs associated with bringing this action.

6 II. ,JURISDICTION & VENUE

7

3.

The Court has jurisdiction over this action pursuant to Article IV, Section 6 of the

8 Washington State Constitution and RCW 2.08.010 in that this is a case in equity and exclusive

9 jurisdiction over this matter has not been vested in some other court.

10 4. The Court has jurisdiction over this action pursuant to 42 U.S.c. § 1983 in that

11 this is an action for deprivation of rights, privileges, and immunities secured by the United States

12 Constitution.

13

5.

Venue is proper in this Court pursuant to: (1) RCW 4.12.020 in that the cause of

14 this action arose in Tacoma, Pierce County, Washington; (2) RCW 4.12.025 as some of the

15 defendants reside in Pierce County; and (3) RCW 36.01.050 as this is an action against

16 Defendant Pierce County.

17

III. PARTIES 18

}9

6. Piaintiff J.W. is an inmate at the Pierce County jail in Tacoma, Washington. He

is 17-years old as ofthe date of filing this complaint. He is scheduled to be released from the jail 20

on June 20,2009.

r-r-l'
1111;)

•
actIon

I• S•brO:'lg,nt

OL

.'":,

.' s behalf through his Guardian ad Litem,

Salvaclo;' Mungia.

"

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7. PlaintiffS.R. is an inmate at the Pierce County jail. He is 17-years old as of the

2 date of filing this complaint. On information and belief, as of the filling of this complaint, S.R.

3 does not have a set release date.

4

8. Plaintiffs Samuelu Reupena and Tafaoga Reupena are the parents ofPlaintiffS.R.

5 They currently reside in Tacoma, Washington.

6

9. Defendant Pierce County is a political subdivision in the State of Washington. It

7 is responsible for the operation of the Pierce County jail and is responsible for ensuring that its

8 inmates receive the education to which they are entitled under state and federal law.

9

10. Defendant Tacoma Public Schools, a.k.a. Tacoma School District No.1 0, is

10 responsible for ensuring that all youth residing within the geographical boundaries of the

11 Tacoma School District, which includes youth at the Pierce County jail, receive the education to

12 which they are entitled under state and federal law.

13 11. Defendant Randy Dom is the Superintendent of Public Instruction for the State of
14 Washington. Mr. Dorn supervises all matters pertaining to public education in the state and is
15 responsible for ensuring that inmates in the Pierce County jail receive the education to which
16 they are entitled under state and federal law. He is sued in his official capacity.
17
IV. CLASS ACTION ALLEGATIONS 18
12. Plaintiffs bring this action pursuant to Civil Rule 23(a) and (b)(2) on behalf of 19
themselves and alJ others similarly situated. 20
10">. Plaintiffs seeL ce.rtificaTion of '" class of similarly situmed individuals as membe:'s 21

All individuals under the age of 18 who are now, or in the future will be, placed in

ajail under the jurisdiction of Pierce County.

2

14. Plaintiffs seek certification of a class of similarly situated individuals as members

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of the following proposed plaintiff class (the "Parent Class"):

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The parents or guardians of all individuals under the age of 18 who are now, or in

5

the future will be, placed in ajail under the jurisdiction of Pierce County.

6

15. The classes are so numerous that the individual joinder of all members is

7 impracticable. Joinder is impracticable in this case because the jail population is constantly

8 fluctuating. The exact number of members of each class is presently unknown, but may be

9 determinable from Defendants' records.

10

16. There are questions of law and fact common to the classes.

11

17. The questions of law and fact common to all members of the Youth Class and

12 Parent Class include, but are not limited to: ea) whether Defendants failed to provide education

13 programming to the Youth Class; (b) whether Defendants breached their duty to provide the

14 education required by Article IX of the Washington Constitution; (c) whether Defendants

15 breached their duty to provide the basic education required by Chapter 28A.150 RCW; and Cd)

16 whether Defendants' failure to provide education services violated the due process and equal

17 protection clauses of the U.S. and Washington State constitutions.
]8 18. The Plaintiffs' claims are typical of the claims of the classes.
19 J9. Plaintiffs will fairly and adequateJy protect the interests of the classes and will
20 vigorous);' prosecme this asrion on behalf ofthe classes.

are represented by C0111petent 8~)uEsel. ~n:)ss

so:le.ctivelv

1 vigorously prosecute the case on behalf ofthe classes.

2

21. The Defendants have acted and/or refused to act on grounds generally applicable

3 10 the entire Youth Class and Parent Class.

4

22. The claims asserted herein are capable of repetition, yet evading review. There is

5 a continuing and substantial public interest in these matters.

6 V. FACTUAL ALLEGATIONS
7 23. Plaintiffs and the classes they seek 10 represent are youth under the age of 18
8 incarcerated at the Pierce County jail and their parents or guardians.
9 24. In early 2009 and during previous years, Plaintiffs and members of the putative
10 classes repeatedly requested educational services from Pierce County officials at the jail.
11 Defendant Pierce County repeatedly denied the requests.
12
25. On information and belief, Defendants had not provided any of the youth at the 13
jail with teachers, classes, books, or any other form of instruction or education services for a
14 number of years until Plaintiffs' counsel made a May 27, 2009 demand that Defendants provide
15 education services to youth at the jail.
16
26. On information and belief, Defendant Pierce County failed to provide education 17
services to youth in the jail in spite of its knowledge that such services were mandated by state ]8
and federal law. 19
'~)~/. Since Plaintiffs' demand for education servjce~; and subsequent negotiations
20 ',b(~.TWeer; .P'Hl.lD.L'1l."m" ;' and' D' ctr.ena.am.s, counsetl,'DeIren.aan~ ;T>" lerct' 'r..,...:ounty 1las represent.ed,t.hat I< t 1las
21

.i (1Co:r1['.

.nas

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However, on infonnation and belief, as of the date of filing this complaint Defendants have

2 provided no actual instruction to members of the Youth Class, and Defendants have not

3 implemented a program that will provide members of the Youth Class with the opportunity to

4 graduate or to earn core requirements for graduation that will later transfer to the youth' schools

5 of residence when they are released.

6

28. All of the actions of Defendants described herein constitute state action and were

7 actions taken under color of state law.

8 VI. CAUSES OF ACTION

9

The representative Plaintiffs make the following claims for relief on behalf of themselves

10 and on behalf of the proposed Plaintiff classes as a whole, based upon the facts alleged above.

11

COUNT ONE

12

VIOLATION OF ARTICLE IX OF THE WASHINGTON STATE CONSTITUTION

13

29. Article IX of the Washington State Constitution provides all individuals under 18

14 with the right to a free public education.

15

30. Defendants Pierce County and Superintendent of Public Instruction Randy Darn

16 have violated the Plaintiff classes' constitutional right to education of the Plaintiff classes.

17

31. Unless enjoined by the Court, the defendants will continue to violate and cause

18 the violation of the Plaintiff classes' constitutional rights.

19

COUNT Two

VIOLATION OF CHAPTER 28A.150 RCW
20 Defendants Pierce County, Tacarne. Public Schoc)is, and Superintendent of Pub~ic

.1C whic::

33. Unless enjoined by the Court, Defendants will continue to violate and cause the

2 violation of the rights of the Plaintiff classes.

3
COUNT THREE

4

VIOLATION OF THE DUE PROCESS CLAUSE Oli' THE US CONSTITUTION

34. Defendants Pierce County, Tacoma Public Schools, and Superintendent of Public 5

Instmction Randy Dom, acting under color of state law and without providing due process, 6

deprived the members of the Parent Class of their rights to a public education for their children 7

secured by the Due Process Clause ofthe Fourteenth Amendment to the United States 8

Constitution in violation of the Parent Class's procedural and substantive due process rights. 9

35. Such violations are actionable pursuant to 42 U.S.C. § 1983. 10

11

36. This claim is asserted only by the Parent Class.

12

COUNT FOUR

VlOLATION OF THE DUE PROCESS CLAUSE OF THE WASHINGTON STATE CONSTJTUTlON

13

37. Defendants Pierce County, Tacoma Public Schools, and Superintendent of Public

14 Instruction Randy Dom, acting under color of state law and without providing due process,

15 deprived the members of the Plaintiff classes of their rights to a public education for themseI yes

16 or their children secured by the Due Process Clause of the Washington State Constitution,

17 Article I, Section 3, in violation of the Plaintiff classes' procedural and substantive due process

18 rights.

19

COUNT FIVE

20

VIOLATION OF TH:C EQOAL PROTECTION CLA'llSE OF THE US CONSTITUTION

38. Defendants Pierce County, Tacoma Pubiic Schools, and Superintendent of Public

actiTlf~

failing to provide edU82!tioE service;;

to youth in the Pierce County jail, have, without justification, intentionally discriminated against

2 Plaintiffs based on their status as inmates ofthe jail, and have acted with deliberate indifference

3 to the known or obvious consequences of such treatment in violation of the Equal Protection

4 Clause of the Fourteenth Amendment of the United States Constitution.

5

39. Such violations are actionable pursuant to 42 U.S.C. § 1983.

6

40. This claim is asserted only by the Parent Class.

7
COUNT SIX

8

VIOLATION OF THE PRIVILEGES AND IMMUNITIES CLAUSE

OFTHE WASHINGTON STATE CONSTITUTION

9

41. Defendants Pierce County, Tacoma Public Schools, and Superintendent of Public

10 Instruction Randy Dom, acting under color of state law, by failing to provide education services

11 to youth in the Pierce County jail, have, without justification, intentionally discriminated against

12 Plaintiffs based on their status as inmates of the jail, and have acted with deliberate indifference

13 to the known or obvious consequences of such treatment in violation of the Privileges and

14 Immunities Clause of the Washington State Constitution, Article I, Section 12.

15
vn. PRAYER FOR RELIEF
16 WHEREFORE, the Plaintiffs, on behalf ofthemselves and all other similarly situated

17 individuals, pray for relief as follows:
18

A. For certification of the classes as defined above; 19
B. For a declaratory judgment, declaring thal by failing to provide education services 20
to youth incarcerated in the Pierce County jail, Defendants have violated rights secured to

21 Plaintiffs and members

Dutative classc~; under Article IX oft11e \\'2shingLon State

22

Process and Eq1.1Ul ProrestioL

FOUlieenth Amendment to the 'United States Constitution, the Due Process Clause of the 2 Washington State Constitution, Article I, Section 3, and the Privileges and Immunities Clause of

3 the Washington State Constitution, Article I, Section 12.

4

C. For the issuance of preliminary and permanent injunctions requiring Defendants

5 to provide education services to youth in the Pierce County jail as required by Article IX of the
Washington State Constitution, Chapter 28A.150 RCW, the Due Process and Equal Protection 6
Clauses of the Fourteenth Amendment to the United States Constitution, the Due Process Clause
7 of the Washington State Constitution, Article I, Section 3, and the Privileges and Immunities

8 Clause of the Washington State Constitution, Article I, Section 12.

9

D. For an award of the Plaintiffs' reasonable attorneys' fees incurred in litigating this

10 matter and all of their costs of suit pursuant to 42 U.S.C. § 1988 and any other applicable statute,
contract, or rule of court; and 11
E. For such other and further relief as the Court may deem just and proper.
12

DATED this /7rH day of June, 2009. 13

14

15

COLUMBIA LEGAL SERVICES

Institutions Project

16 17

2·· . ······ ". --.._n....~_..'"
By .AC---: .

Gavin T50rnton, WS~~

18

Beth A. Colgan, WSBA #30520

19

Attorneys for Plaintiffs

20

~-'.'

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-'-" ~ ~~'--;"•..--".>

 
 Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 1 of 25

The Honorable Robert J. Bryan

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

J.W., a minor, through his guardian ad litem, SALVADOR MUNGIA; S.R., a minor, by and through his parents, SAMUELU REUPENA and TAFAOGA REUPENA,
Plaintiffs,
vs.
PIERCE COUNTY, a political sub-division in the State of Washington; TACOMA PUBLIC SCHOOLS, a.k.a. Tacoma School District No. 10; and RANDY DORN, Superintendent of Public Instruction, in his official capacity,
Defendants.

CLASS ACTION
No. 3:09-cv-5430-RJB
SETTLEMENT AGREEMENT AND CONSENT DECREE

This Settlement Agreement and Consent Decree resolves all claims arising out of the class action lawsuit J.W., et al., v. Pierce County, et al., No. 09-05430 RJB, United States District Court for the Western District of Washington at Tacoma, by Plaintiffs (youth under the age of eighteen being held at the Pierce County jail, and their parents and guardians) against Defendants (Pierce County, Tacoma Public Schools, and Superintendent of Public Instruction Randy Dorn) regarding the alleged lack of educational services at the Pierce County Jail. In

[PROPOSED] SETTLEMENT AGREEMENT AND CONSENT DECREE- 1
3:09-cv-5430-RJB
EXHIBIT B

Columbia Legal Services Institutions Project
101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 464-0838

Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 2 of 25

order to avoid further expense, delay, and the risk of litigation, Plaintiffs and Defendants now 1 2 desire to enter into a comprehensive settlement of all claims arising out of the suit.

3

This Settlement Agreement and Consent Decree (“Settlement”) shall not be construed as

4 an admission by any party regarding liability or the violation of any state or federal law by

5 Defendants. Liability or any duty giving rise to liability is expressly denied. The parties agree

6 that this Settlement is in the best interest of the classes.

7 I. DEFINITIONS
8

9

A. “Agreement” means this Settlement Agreement and Consent Decree.

10

B. “Certificated instructional staff” shall mean “certificated employees” as defined in

11 RCW 28A.150.060 (2009).

12

C. “Court” means the United States District Court for the Western District of

13 Washington at Tacoma.

14
D. “Day” shall mean a calendar day unless otherwise specified. 15

16

E. “Defendants” means the following Defendants to the above entitled action: Pierce

17 County, a political sub-division in the State of Washington; Tacoma Public Schools, a.k.a.

18 Tacoma School District No. 10; and Superintendent of Public Instruction Randy Dorn, in his

19 official capacity.

20

F. “Eligible detainees” shall mean Pierce County Jail detainees that are eligible for

21 participation in the Program because they have not graduated from high school and are under
22 eighteen on their first day of confinement to the Jail and the first day of the school year as
23
defined below. For purposes of this Agreement, individuals who have not graduated from high 24

25 school and are under eighteen on their first day of confinement at Remann Hall and who are

SETTLEMENT AGREEMENT AND CONSENT

Columbia Legal Services

DECREE- 2

Institutions Project

3:09-cv-5430-RJB

101 Yesler Way, Suite 300

Seattle, WA 98104

(206) 464-0838

Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 3 of 25

transferred to the Jail from Remann Hall are eligible for participation in the Program for the 1 2 remainder of the school year in which they transfer. For purposes of this Agreement, those 3 individuals sent to Western State Hospital or other mental health or medical facility for

4 evaluation or other purpose while incarcerated at the Pierce County Jail are not included as

5 eligible detainees while they are housed at Western State Hospital, but are eligible upon their

6 return to the Jail if they were otherwise eligible prior to their transfer.

7 G. “IEP” means an Individualized Education Program as described by the federal
8 Individuals with Disabilities Education Act (IDEA).
9

10

H. “Jail” means the Pierce County Jail, or any jail under the jurisdiction of Pierce

11 County where both adults and youth under the age of eighteen are detained. Nothing included in

12 this Agreement shall apply to juveniles housed at Remann Hall.

13

I. “Parent Class” and “Parents” means the parents and/or guardians of all

14 individuals under 18 years of age who are members of the “Youth Class” as defined herein.
15 J. “Participant” means a member of the Youth Class enrolled in the education
16 program to be implemented by Defendants pursuant to this Agreement.
17

18

K. “Parties” means Plaintiffs and Defendants.

19

L. “Pierce County” or “the County” means Defendant Pierce County, a political sub-

20 division in the State of Washington.

21

M. “Plaintiffs” or “Classes” mean all members of the Youth Class and Parent Class.

22 N. “Program” means the educational program to be implemented by Defendants
23
pursuant to this Agreement. 24

25
SETTLEMENT AGREEMENT AND CONSENT DECREE- 3
3:09-cv-5430-RJB

Columbia Legal Services Institutions Project
101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 464-0838

Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 4 of 25

1

O. “Program Staff” means an employee or contractor of the Tacoma School District

2 assigned to work with Participants.

3

P. “School day” means a weekday that is neither a weekend nor a school holiday as

4 defined by RCW § 28A.150.050, and consistent with RCW § 28A.150.030 and the school

5 instructional calendar for the Tacoma School District’s regular school year.

6 Q. “School year” shall encompass the regular school days set by the Tacoma School
7
District for the instruction of students. 8

9

R. “Segregation” means any form of confinement by which a member of the Youth

10 Class is housed in a higher security level than the general classification level within the Jail.

11 Segregation includes, but is not limited to: solitary confinement, administrative segregation,

12 disciplinary segregation, protective custody, and intensive management unit settings.
13 S. “Superintendent” means the Defendant Superintendent of Public Instruction
14 Randy Dorn in his official capacity.
15 T. “Tacoma Public Schools,” or “the Tacoma School District,” or “the District”
16 17 means Defendant Tacoma Public Schools.

18

U. “Youth Class” shall mean all present and future Pierce County Jail detainees who

19 have not graduated from high school and who are under eighteen on their first day of

20 confinement to the Jail and the first day of the Tacoma School District school year, or who have
21 transferred to the Jail from Remann Hall as set forth in paragraph 1.F. Except where otherwise
22 explicitly stated, none of the obligations herein shall be interpreted to create any educational
23 obligations for ineligible individuals age 18 or older.
24

25
SETTLEMENT AGREEMENT AND CONSENT DECREE- 4
3:09-cv-5430-RJB

Columbia Legal Services Institutions Project
101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 464-0838

Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 5 of 25

II. GENERAL OBLIGATIONS 1

2

The District and the County shall implement an educational program at the Jail that

3 satisfies legal requirements for providing educational services to the Youth Class. Unless

4 otherwise explicitly stated herein, this agreement does not expand or reduce any education rights

5 of Jail detainees over the age of eighteen.
6 A. Provision of Education Services
7 The program shall be conducted in accordance with Chapter 28A.150 RCW, unless
8 9 otherwise authorized by state statute, the alternative learning experience requirements of WAC §
10 392-121-182, or an alternative education program authorized by law.

11

B. School Year

12

Each program school year shall commence and operate consistent with the District’s

13 regular school instructional calendar or as otherwise authorized by RCW 28A.150.290(2) and
14 chapter 392-129 WAC. Members of the Youth Class shall be permitted to participate in the
15

program throughout the school year. 16

17

C. Intake, Enrollment, and Transfer

18

1. Pierce County shall inform Program Staff of a potential eligible detainee within

19 48 hours of the eligible participant being booked into the Jail. Where obtained during intake,
20 such notification to Program Staff shall include name, date of birth, home address, and
21 parent/guardian contact information.
22 2. Within three school days of being informed by the County of a potential eligible
23
24 detainee pursuant to paragraphs 1 and/or 5 of this section, Program Staff shall meet with and

25
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inquire of an eligible detainee whether the detainee would like to enroll in the Program. Where 1 2 an eligible detainee is admitted to the Jail outside of the regular School Year, the meeting must 3 occur within three school days of the first day of the School Year.

4

3. If the eligible detainee authorizes his or her enrollment in the Program, within two

5 school days of such grant of authorization, Program Staff shall conduct an initial assessment of

6 the Participant to determine appropriate instructional strategies for implementation of a student

7 learning plan.

8 4. Within two school days of providing the initial assessment, Program Staff shall
9
begin providing educational services to the detainee. 10

11

5. If an eligible detainee initially refuses to participate in the Program and later

12 decides he or she would like to participate, and, if he or she expresses such intent in writing or

13 via “kite,” the detainee shall be permitted to participate if he or she is still eligible. Within 48

14 hours of receiving such a request, Jail staff shall convey the request to the Program Staff

15 member(s) designated by the District to receive such notices.

16

6. Within four school days of an eligible detainee authorizing his or her enrollment

17 in the Program, and once provided with necessary contact information, the District shall request
18 the educational records of eligible detainees.
19
7. If a Participant expresses a desire to withdraw from the Program, the following 20

21 steps must be taken: (a) a written withdrawal of services sheet must be signed by both the

22 Participant and the Program Staff, noting date, time, reason for withdrawal, and advisement that

23 the eligible detainee may re-enroll at anytime he or she remains eligible and directions on how to

24 do so, (b) if the student is not yet 18 years of age, the District shall notify the parents of the

25
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Participant’s withdrawal from the program by mailing a notification to their last known mailing 1 2 address if available, and (c)Pierce County jail shall make an entry into the jail behavioral log of 3 the date of withdrawal. Detainees shall not be subject to institutional discipline for withdrawing

4 or otherwise failing to participate in an educational program.

5

8. In the event that a Participant fails to participate in the Program for reasons other

6 than illness, attendance in court, meeting with a lawyer, case worker, counselor, physician,

7 dentist, nurse, or other professional service provider, or an absence otherwise excused pursuant

8 to the District’s attendances and absences policy for a period of ten consecutive school days,
9
he/she shall be deemed to have withdrawn from the Program. 10

11

9. The Participant and the Participants’ parent shall be provided with written notice

12 of the Participants’ withdrawal from the program. The notice shall inform the Participant that he

13 or she may resume educational services if he or she is still eligible by submitting a written

14 request or “kite.”

15

10. When known by the Jail, it shall notify the District two weeks prior to the release

16 or transfer of any Participants from the Jail. If not possible, notification shall be given at the
17 earliest possible time.
18 11. When offered participation in the program, eligible detainees shall be provided
19 with the Notice of Education Rights for Youth attached hereto as Exhibit 1 and the most current
20
21 version of the Student Rights, Responsibilities & Regulations handout provide to Tacoma Public

22 Schools students (the 2008-09 version is attached hereto as Exhibit 2). The District shall also

23 mail to the parents of eligible detainees a copy of the Notice of Education Rights for Parents and

24

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Guardians attached hereto as Exhibit 3 and a copy of the Student Rights, Responsibilities & 1 2 Regulations handout.

3

D. Written Learning Plan

4

1. Within ten school days of the date the initial assessment is provided pursuant to

5 paragraph II.C.3, Program Staff shall develop and implement a written learning plan for the
6 Participant in accordance with the requirements of WAC § 392-121-182, or an alternative
7
education program authorized by law. 8

9

2. The plan must be individually tailored to the specific educational needs of the

10 participant.

11

3. The District shall provide each participant, and the parent(s) of each participant,

12 with an opportunity to have input regarding the design of the plan, provided, however, plans may

13 be implemented in the absence of parental input.

14

4. The plan must include a description of the specific learning goals and

15 performance objectives of the learning experience that will meet the requirements of Section
16 II.G. The description shall clearly identify the requirements a student must meet to successfully
17

complete the course or program in sufficient detail to guide and advise the student. 18

19

5. The plan must identify the instructional materials essential to successful

20 completion of the learning plan.

21

6. The plan must include a description of the timelines and methods for evaluating

22 student progress toward the learning goals and performance objectives specified in the learning 23 plan. 24

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7. Students that are eligible for special education must be provided with written 1 2 learning plans that are consistent with their IEPs and that comply with the requirements of the 3 federal Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation

4 Act, the Washington State Special Education Act, and all other special education requirements

5 under federal and state program authorized by law. Nothing in this Settlement Agreement or
6 related provisions is intended, however, to supersede or supplant the remedies provided for in the
7 IDEA and other applicable state and federal laws regarding the education of students with
8 disabilities. The parties agree that, absent a systemic failure by the parties to identify, support,
9 or deliver special education services, modifications or accommodations to students with
10 11 disabilities as required under those laws, Participants must exhaust their administrative remedies
12 under such laws, to the extent required under the law, before bringing any enforcement action
13 pursuant to this settlement, pertaining to a violation of their rights to special education services.

14 Nothing in this agreement is intended to prevent students with disabilities from bringing an

15 enforcement action under this agreement for claims not related to their status of having a

16 disability. 17

18

E. Program Staffing

19

1. Staffing of the program will be sufficient to fulfill the requirements of this

20 Agreement, including appropriately certificated instructional staff. The School District shall

21 provide other specialized certified instructors and educational staff associates (e.g., speech
22 pathologists, occupational therapists, audiologists, nurses, psychologists, etc.) as appropriate 23
according to each Participant’s Individualized Education Plan (IEP), where applicable. 24

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2. Participants shall have direct, one-on-one personal contact with program 1 2 instructional staff for an average of one hour per week. Only a half-hour per week of one-on-one 3 personal contact with instructional staff shall be required for Participants that receive at least one

4 hour per week of group contact time with instructional staff. Group instruction is limited to four

5 or fewer Participants and is not required under this agreement.

6

3. Participants shall be permitted to contact the Program Staff in writing (e.g., via a

7 kite) with issues or questions concerning the Program.
8

9

F. Program Offerings

10

1. The courses provided to Participants of the program shall be courses in the subject

11 matters identified for inclusion in the common school curriculum by the Washington State
12 Legislature and the Superintendent of Public Instruction including those subjects identified in
13 RCW §§ 28A.230.020, .050, .070 and WAC §§ 392-410-115, -120, -135 that will allow each
14 Participant to earn credits toward the District’s graduation requirements and satisfy the
15 requirements for an Alternative Learning Experience course of study under WAC 392-121-182,
16 or an alternative education program authorized by law. Provided, where the Participant is not
17
18 making sufficient educational progress and the student is not able to perform high school level
19 work, consistent with the student learning plan, the District may offer a remedial course at a level

20 appropriate to ensure educational progress, even if such course does not carry high school credit.

21

2. If it is determined that to fulfill graduation requirements a particular Participant

22 needs a specific type of credit that may create a safety or security issue in the Jail, where feasible

23 Program Staff and the District, in consultation with Jail staff, shall provide the Participant an

24

alternate course of instruction that is practical and appropriate for the Jail population and that

25
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will satisfy graduation requirements. Within five school days of determining that it is not 1 2 feasible to provide such an alternate course of instruction or seek a viable alternative to securing 3 the credit necessary for graduation, the District will notify the parties. Within five school days of

4 such notification, the parties will meet and confer in good faith to determine the appropriate

5 action to take with respect to the Participant’s educational services. If the parties are not able to

6 resolve the matter by meeting and conferring in good faith, any party may file a motion with the

7 Court seeking relief based under the Washington State Constitution and/or Chapter 28A.150

8 RCW or other applicable state statute. Where an alternate course of instruction is provided under
9
this paragraph, Program Staff shall document the reasons for providing the alternate course. 10

11

3. The Program shall utilize curricula, course content, instructional materials and

12 other learning resources as authorized by law.

13

4. Eligible Participants shall receive an educational program that shall include all

14 elements necessary to ensure compliance with federal and state requirements regarding education

15 of Participants with disabilities including, but not limited to, those eligible for services under the

16 Federal Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act. 17

18

G. Fulfillment of Graduation Requirements

19

1. The Program shall provide sufficient opportunity for Participants to pursue full or

20 partial credit which will count toward high school graduation requirements in the Tacoma School

21 District.

22 2. The Program shall provide an opportunity for Participants to earn a minimum of

23 six “high school credits” (as the term is defined in WAC § 180-51-050) per school year that are

24

generally applicable toward fulfilling the Participants’ graduation requirements in the Tacoma

25

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School District. Whether, and the extent to which, a Participant earns credits is dependent on the 1 2 Participant’s progress and participation does not guarantee any Participant receives high school 3 credit. An individual Participant’s educational program will include provision of class and credit

4 type necessary for graduation, subject to paragraph II.F.2, but does not guarantee provision of

5 any specific class.

6

3. The Program shall allow for partial credit retrieval. Subject to those limitations

7 articulated in this Agreement, the Program shall provide sufficient opportunity to complete other
8 requirements for graduation.
9

10

H. Accessibility and Special Education

11

The program shall be accessible to all eligible Participants, including those with

12 disabilities, and shall be administered and provide special education services, program
13 modifications and accommodations in accordance with the federal Individuals with Disabilities
14 Education Act (“IDEA”), Section 504 of the Rehabilitation Act, and other applicable state and
15 federal laws regarding the rights of students with disabilities to receive a public education.
16
17 Nothing in this Settlement Agreement or related provisions is intended, however, to supersede or

18 supplant the remedies provided for in the IDEA and other applicable state and federal laws

19 regarding the education of students with disabilities. The parties agree that, absent a systemic

20 failure by the parties to identify, support, deliver special education services, modifications or

21 accommodations to students with disabilities as required under those laws, Participants must

22 exhaust their administrative remedies under such laws, to the extent required under the law,

23 before bringing any enforcement action pursuant to this settlement pertaining to a violation of

24

their rights to special education services. Nothing in this agreement is intended to prevent

25

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students with disabilities from bringing enforcement action under this agreement for claims not 1 2 related to their status of having a disability.

3 I. Parental Involvement
4 1. Parent(s) of Participants who are under the age of 18 shall have the right to
5 provide input in developing the written learning plan and shall have a right to review all
6
7 education records of the Participant in accordance with the requirements of RCW § 28A.605.030
8 and its supporting regulations. The failure of a Participant’s parent(s) to assist in developing the

9 written learning plan or to otherwise become involved in the Participant’s education under the

10 program shall not preclude the Participant from enrollment in the Program or implementation of

11 the learning plan.

12

2. Defendants shall also comply with federal and state law governing special

13 education requirements regarding involvement of parents of Participants with special education
14 needs, including participation in IEP meetings.
15

16

J. Evaluation and Progress Review

17

1. Each Participant’s educational progress shall be reviewed at least monthly by the

18 Program Staff and the results of each review shall be communicated to the Participant. When
19 requested by the Participant’s parent(s), Program Staff shall update the Participant’s parent(s)
20
regarding the Participant’s progress each time the Participant earns a credit. The information 21

22 provided to the Participant and the Participant’s parent(s) shall include a description of the

23 Participant’s progress toward meeting graduation requirements.

24

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2. If the Participant fails to make satisfactory progress for two consecutive 1 2 evaluation periods or if the Participant fails to follow the written learning plan, an intervention 3 plan designed to improve Participant progress shall be developed and implemented. This

4 intervention plan shall be developed by instructional staff in conjunction with the Participant. If,

5 after no more than two subsequent evaluation periods, the Participant still is not making

6 satisfactory progress, a plan designed to more appropriately meet the Participant’s educational

7 needs shall be developed and implemented by Program Staff in conjunction with the Participant.

8 3. Participants shall be assessed using District-wide recurring assessments used by
9
the District, consistent with state requirements or guidelines for assessments. 10

11

4. Evaluations and assessments for Participants with special education needs shall

12 conform to the requirements of federal and state laws regarding special education.

13 K. School Discipline
14 A Participant, including Participants placed in Segregation, shall be expected to comply
15 with all student rules and conduct code provisions of the District, a copy of which shall be
16
17 provided to them. They shall be subject to discipline consistent with applicable statutes,
18 regulations and District policies.

19

L. Institutional Discipline

20 1. Participants shall not be deprived of participation in the Program as a result of
21 discipline taken by the Pierce County Jail unless it occurs during, or is related to, the Program.
22 2. Institutional discipline shall not result in the loss of participation in the Program.
23

24 Where Participants are placed in Segregation or any other special housing unit, or where there is

25
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some other emergent situation involving or affecting the Participants, Participants shall be 1 2 permitted to continue their participation in the program to the extent continuation is feasible.

3 M. Maintenance and Release of Participant Records
4 1. Maintenance of student records shall be in accordance with the Office of
5 Secretary of State’s Local Government Records and Retention Schedule for School Districts.
6
7 Participant files shall be maintained at the jail to the extent necessary to implement the education
8 program, Participants’ written learning plans, and Participants’ IEPs, and shall include but not be

9 limited to current transcripts, IEPs, behavioral intervention plans, functional behavioral

10 assessments, and current evaluations. These files shall be accessible by the Program Staff.

11

2. Access to and release of a Participant’s educational records shall be in accordance

12 with the Family Educational Rights and Privacy Act (FERPA) and other applicable federal and
13 state laws pertaining to student and public records. After a Participant is released from the Jail,
14 upon receipt of a request for the Participant’s educational records, the District shall transmit the
15
records as requested in accordance with the requirements of RCW § 28A.225.330. 16

17

N. Educational Materials and Facility Conditions

18 1. The District shall provide Participants with all educational materials and supplies
19 (e.g., books, workbooks, writing implements, paper, tests, rulers, calculators, computers, etc.),
20 and access to such materials and supplies, necessary to ensure that Participants can fully
21
22 participate in the program and fulfill the requirements of their written learning plan with regard

23 to jail security considerations. The materials and supplies shall, at minimum, be consistent in

24 quality with those available to the District’s overall student population.

25
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2. Pierce County shall ensure that the jail facilities that are used for the program are 1 2 adequately maintained and sufficient to allow the program requirements of this Agreement to be 3 met. The School District and Pierce County shall also ensure that Participants are provided with

4 an adequate opportunity to fulfill the requirements of their written learning plan and other

5 applicable program requirements. This shall include allowing a Participant an average of five

6 hours per school day for independent study, receipt of instruction, or other course work, except

7 where doing so is not practicable in light of the Participant’s illness, attendance in court, meeting
8 with a lawyer, case worker, counselor, physician, dentist, nurse, or other professional service
9 provider, or an absence otherwise excused pursuant to the District’s attendances and absences
10
11 policy, or other exigent circumstances.

12

3. Pierce County shall provide and maintain a clean and appropriate classroom

13 environment sufficient to meet the program requirements. The County shall provide Participants

14 with access to classroom space as necessary to fulfill the requirements of this Agreement and to

15 fulfill the Participants’ written learning plans consistent with security considerations.

16

4. Pierce County shall also provide and maintain furnished office space for Program

17 Staff, which must include a telephone and access for long distance calls, a lockable file cabinet,
18 access to a copy machine, access to a fax machine, and access to the Internet sufficient to access
19
the District’s network. 20

21

O. Office of Superintendent of Public Instruction Oversight

22 1. During the term of this Agreement, Defendant Superintendent of Public

23 Instruction shall supervise the provision of educational services at the Jail in accordance with

24

relevant federal and state law. 25
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2. In addition, the Superintendent shall make a good faith effort to identify funding 1 2 sources for the provision of the program, including consideration of additional funds, such as 3 funds for institutional education.

4 III. MONITORING
5
A. Selection 6

7

The parties have agreed that Michael S. Blair shall serve as a Settlement Monitor who

8 will monitor this Agreement as set forth below.

9

B. Duties

10

1. During the first four full semesters during the term of this agreement, there will

11 be monitoring of the program. During this time period, the monitor shall be required to do the
12
following: 13

14

a. Conduct two reviews (the first to occur during the first two months of each

15 semester and the second before each semester ends unless otherwise noted) to include the
16 following:
17
i. On site visitation of the jail education program with reasonable notice to 18

19

the Defendants or their designee (minimum 5 school days in advance);

20

ii. During each visit, the monitor will interview at least 4 program

21

participants (if such participants are available and consent to be

22

interviewed) and review the records of each student interviewed that the

23

monitor deems are relevant to compliance with the provisions of the

24 settlement;
25
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1

iii. Over the course of the semester reviews, interview at least 3

2

parents/guardians (if consenting parents are available) (these interviews

3

can be conducted by phone);

4

iv. Over the course of the semester reviews, interview at least 2 eligible

5

detainees who refused enrollment in the program (if such detainees are

6 available and consent to be interviewed);
7 v. Within 15 days of each review, the monitor shall submit a verification
8

9

letter to all parties confirming the visit and flagging any issues raised

10

during the course of the limited review so that the parties can address them

11

instead of waiting until the end of the semester. Should issues arise

12

outside of the timeframe for the visits (e.g., during a parent interview), the

13

monitor will give the parties written notice of the issue within 15 days. If

14

at all possible, the monitor shall also immediately provide an oral report to

15 the school staff and jail staff of any issue that might be included in any
16 forthcoming verification letter;
17

18

vi. During the course of the visits, the parties shall provide the monitor access

19

to program faculty and records as the monitor requests and shall allow the

20

monitor to observe classes. It is expressly agreed that the monitor shall

21

not disrupt the provision of educational services in the execution of his or

22

her duties. Minor interruptions are not considered a disruption; and

23 vii. To facilitate the monitor’s review, the School District and County shall

24

maintain at all times during the monitoring phase an accurate written log

25
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of inmate contacts regarding enrollment, assessment, and class-time 1

2

services. This will be provided for the monitor’s review during each

3

visitation and, if feasible, in advance of the review.

4

b. Conduct a full end-of-the-semester review of the program status in

5

writing. This will include a review of all program records relevant to compliance with

6

the provisions of the settlement, except with respect to the following requirements of the

7 settlement for which appropriate Defendants may self-certify regarding their compliance
8 or non-compliance: whether the school year is consistent with the District regular school
9

instructional calendar (see Section II.B); whether detainees who are eligible for the 10

11

program at the beginning of the school year are permitted to participate the entire year

12

(see Section II.B); whether school records were requested within four school days of an

13

eligible detainee authorizing enrollment and providing necessary contact information;

14

whether notification was provided to the District two weeks prior to the release or

15

transfer of any participants from the Jail or at the earliest possible time (see Section

16 II.C.10); whether courses provided to Participants are in the subject matters identified in
17 the common school curriculum by the Legislature and Superintendent of Public
18 Instruction and allow the earning of credits toward District graduation requirements and
19
the applicable Alternative Learning Experience course of study (see Section II.F.1); 20

21

whether appropriate Defendants are in compliance with II.F.2; whether any eligible

22

detainees were precluded from participation in the program because of the failure of the

23

detainee’s parent to assist in developing the written learning plan or otherwise become

24

involved in the detainee’s education (see Section II.I.1); and whether any detainees have

25
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been subjected to institutional discipline for failing to participate in the program (see 1

2

Section II.C.7). If a Defendant(s) certifies that non-compliance with this Agreement has

3

occurred, the Defendant(s) shall provide the monitor and counsel for Plaintiffs all

4

documents relevant to the non-compliance. The Monitor may also do further

5

investigation into the non-compliance. During the end-of-semester review, the monitor

6

may conduct supplemental interviews. If the monitor deems it necessary, he or she may

7 investigate any issues that arise during the end-of-semester review or that arose in the two
8 prior reviews during that particular semester. The monitor shall then submit a report to
9 the parties within 30 days of the end of each semester.
10

11

2. After the first four full semesters of monitoring, in the fourth semester report, the

12 monitor shall certify whether or not the Defendants have substantially complied with the terms of

13 this Agreement. If the monitor certifies that Defendants have not substantially complied with the
14 terms of the Agreement, monitoring shall continue in the same manner for two additional
15 semesters. If the monitor certifies that Defendants have substantially complied with the terms of
16 the Agreement, monitoring shall continue for two semesters during which time the monitor need
17 not conduct the reviews set forth in Section III.B.1.a.
18

19

C. Access to Information

20 1. To the extent necessary to perform the duties described above, the Monitor shall
21 have full and complete access to Defendants’ records and staff, and Pierce County jail facilities
22 and eligible detainees. Defendants shall direct all employees to cooperate fully with the Monitor.
23
2. Upon the Monitor’s request, Pierce County shall provide the Monitor with a list of 24

25 all eligible detainees then being held at the Jail.
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3. Upon request of Plaintiffs’ Counsel, Pierce County shall provide Plaintiffs’ 1 2 Counsel with a list of all eligible detainees then being held at the Jail and shall allow Plaintiffs’ 3 Counsel access to the eligible detainees.

4

4. Throughout the duration of the settlement agreement, the parties shall provide all

5 complaints received regarding the provision of educational services at the jail to the monitor for
6 review and to counsel for all parties. This includes, but is not limited to kites, grievances, and 7
written statements. 8

9

D. Payment

10

Defendants shall pay the Monitor’s reasonable fees and actual expenses incurred for

11 performing the duties as outlined in this Agreement.
12 E. Removal and Replacement of the Monitor
13 The Monitor shall not be removed unless: (i) the Monitor resigns, (ii) the parties stipulate
14
15 and agree in writing that the Monitor should be removed, or (iii) the Court determines that there
16 is good cause. In the event the Monitor resigns or is otherwise removed under this paragraph

17 before the expiration of the term of this Agreement, or in the event that Mr. Blair is not able to

18 fill out the term of his service as monitor, he shall provide written notice to the parties’ counsel
19 as soon as feasible. The parties shall exchange the names of new proposed monitors no later
20 than ten business days after all counsel are in receipt of that notice, or equivalent notice of his
21 incapacity to serve in the event Mr. Blair is incapable of providing notice. Within five business
22 days of this exchange, the parties shall meet and confer regarding agreed substitution for the
23 24 remaining term of monitoring. If the parties are unable to identify a mutually agreeable monitor

25
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within ten business days of their meeting, then the matter shall be jointly brought before the 1 2 Court for consideration. Each party shall submit to the Court names and CVs of at least two 3 potential monitors. Any proposed monitor under this provision should possess similar work

4 experience to that of current monitor Mike Blair in the fields of education administration and

5 assessment of learning programs, and a background that demonstrates that the proposed monitor

6 will be able to act independently of, and without bias toward, any of the parties.

7 IV. ENFORCEMENT
8

9

A. Dispute Resolution

10

In the event the parties disagree over Defendants’ performance of their obligations under

11 this Agreement, the parties shall first meet and confer in good faith in order to attempt to resolve

12 the disagreement without court intervention. If the parties are not able to resolve the matter by

13 meeting and conferring in good faith, any party may proceed to request Court enforcement or

14 other relief.

15 B. Attorneys’ Fees and Costs
16

17

The parties shall bear their own costs and attorneys’ fees for this action, except that if

18 Plaintiffs prevail in an action seeking to enforce the terms of this Agreement, the Court shall

19 order one or more of the Defendants to pay reasonable attorneys’ fees and costs of the

20 enforcement action.
21 V. IMPLEMENTATION OF AGREEMENT
22 Defendants shall come into full compliance with the terms of this Agreement within two
23
24 months of its approval by the Court.

25
SETTLEMENT AGREEMENT AND CONSENT DECREE- 22
3:09-cv-5430-RJB

Columbia Legal Services Institutions Project
101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 464-0838

Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 23 of 25

VI. MODIFICATION AND TERMINATION OF AGREEMENT 1

2

A. Term of Agreement

3

The settlement agreement will remain in effect for six full semesters plus 90 days, and

4 Defendants shall comply with all applicable provisions. Plaintiffs may, however, move the court

5 for an extension of the settlement with either full or reduced monitoring for a period no longer
6 than two additional semesters. The court will grant the motion only upon a showing that there is
7 a reasonable expectation that Defendants will materially deviate from the educational program
8 required by the settlement agreement. There will be no extension of the settlement agreement in
9 any event beyond eight full semesters from the date of its commencement.
10

11

B. Modification

12

This Agreement may only be amended or modified by order of the Court pursuant to

13 FRCP 23.
14 VII. EXECUTION IN COUNTERPARTS
15 This Agreement may be executed by the Parties in one or more counterparts, transmitted
16
17 by electronic or regular mail, each of which shall be deemed an original but all of which together
18 shall constitute one and the same instrument.

19 DATED this 26th day of March, 2010.

20

21

A

22

ROBERT J. BRYAN

23

United States District Judge

24

25
SETTLEMENT AGREEMENT AND CONSENT DECREE- 23
3:09-cv-5430-RJB

Columbia Legal Services Institutions Project
101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 464-0838

Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 24 of 25

The undersigned have agreed to the provisions forth above and to the entry of this 1 Settlement Agreement and Consent Decree. 2

3 DATED: February 5, 2010
4 s/ Gavin Thornton
5 Gavin Thornton, WSBA #32996 Beth Colgan, WSBA #30520
6 Columbia Legal Services 7 101 Yesler Way, Ste. 300
Seattle, WA 98104 8 Telephone: (206) 464-0838
Fax: (206) 382-3386 9 Email: gavin.thornton@columbialegal.org
beth.colgan@columbialegal.org 10
11 Attorneys for Plaintiffs

DATED: February 5, 2010
s/ Michelle Luna-Green Michelle Luna-Green, WSBA #27088 Pierce County Prosecuting Attorney’s Office/Civil Division 955 Tacoma Ave. South, Suite 301 Tacoma, WA 98402-2160 Telephone: 253-798-6380 Fax: 253-798-6713 Email: mluna@co.pierce.wa.us.
Attorney for Defendant Pierce County

12

13 DATED: February 5, 2010

14

s/ Charles P.E. Leitch 15 Charles P.E. Leitch, WSBA #25443

16

Katharine M. Tylee, WSBA #40640 Patterson Buchanan Fobes

17 Leitch & Kalzer, Inc., P.S. 2112 Third Avenue, Suite 500

18 Seattle, Washington 98121 Telephone: (206) 462-6700

19 Fax: (206) 462-6701

Email: cpl@pattersonbuchanan.com

20

kmt@pattersonbuchanan.com

21 Attorneys for Defendant Tacoma School 22 District No. 10

DATED: February 5, 2010
s/ Dierk Jon Meierbachtol Dierk Jon Meierbachtol, WSBA #31010 Washington State Attorney General’s Office 1125 Washington Street SE P.O. Box 40100 Olympia, WA 98504-0100 Telephone: (360) 586-2940 Fax: (360) 664-0662 Email: dierkm@atg.wa.gov
Attorney for Defendant Randy Dorn

23

24

25
SETTLEMENT AGREEMENT AND CONSENT DECREE- 24
3:09-cv-5430-RJB

Columbia Legal Services Institutions Project
101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 464-0838

Case 3:09-cv-05430-RJB Document 36 Filed 03/29/10 Page 25 of 25

1 Dated: 2/2/10

S /

2

J.W.

3 Dated:
4

S / SALVADOR MUNGIA, guardian ad litem for J.W.

5

6 Dated: 2/2/10

S / S.R.

7

8 Dated: 2/2/10 9

S / SAMUELU REUPENA

10 Dated: 2/2/10 11

S / TAFAOGA REUPENA

12 Dated: 2/5/10
13
14
15 16 Dated: 2/4/10
17

S / PIERCE COUNTY By Paul Pastor, Sherriff Pierce County Sheriff's Department
TACOMA PUBLIC SCHOOLS, a.k.a. Tacoma School District No. 10

18

By: s /

19

Printed Name: Arthur Jarvis

20

Title :Supt.

21

22 Dated: 2/3/10 23

S / RANDY DORN, Superintendent of Public Instruction, in his official capacity

24

25
SETTLEMENT AGREEMENT AND CONSENT DECREE- 25
3:09-cv-5430-RJB

Columbia Legal Services Institutions Project
101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 464-0838

Case 3:09-cv-05430-RJB Document 36-2 Filed 03/29/10 Page 1 of 2

NOTICE OF EDUCATION RIGHTS FOR YOUTH DETAINED IN THE PIERCE COUNTY JAIL
Education while in the jail
Youth at the Pierce County Jail may participate in the jail’s education program offered by Pierce County and Tacoma Public Schools. You are allowed to participate in the program if you were under eighteen both when admitted to the Jail and when the Tacoma School District school year starts (usually the beginning of September of each year). Once enrolled in the program, you will be able to continue until the end of the school year unless you are released or transferred from the jail.
When classes are offered
The education program runs during the Tacoma School District’s regular school calendar. If you are eligible for the educational program, someone from the program should contact you within five schools days (meaning days on which school is held, which does not include the summer) to invite you to enroll. Once you enroll, you should begin participating in the program within two additional school days.
The type of instruction offered
You will receive an average of at least either: (1) one hour per week of one-on-one time with a program instructor or (2) one hour of group instruction time with four or fewer program participants plus a half-hour of one-on-one instructor time. The instructor will review your education records and give you tests to help decide what courses you should take. You and your parents or guardians have a right to work with your instructor to make a written learning plan that will provide you with the opportunity to work toward high school graduation requirements. To make significant progress toward graduation, you will need to spend a significant amount of time studying on your own.
Other education rights that you have
• You will be permitted to study for an average of at least five hours per school day except under exceptional circumstances.
• You will be allowed to continue taking classes and studying even if you are placed in segregation. The “Student Rights, Responsibilities & Regulations” handout that you have received with this notice explains when you can be denied participation in the

Page 1 of 2

EXHIBIT 1

Case 3:09-cv-05430-RJB Document 36-2 Filed 03/29/10 Page 2 of 2

program and what rights you have to dispute termination or suspension from the program.

• You will be provided with all the educational materials and supplies that you need to fully complete the requirements of your written learning plan (for example, pencils, paper, books, etc.).

• Your parents or guardian will be permitted to review your education records and participate in creating your written learning plan.

• Once you are released or transferred from the jail, your school records should be promptly forwarded to the school or institutional education program you next attend upon the request of that program.

• If you have a qualifying disability, your educational program will be tailored to suit your individual needs. The program will comply with federal and state laws regarding the education of students with disabilities.

Questions or complaints?

A program instructor will normally be present at the jail each school day. If you need help or have a complaint about the education you are receiving, you may kite the instructor.

If you would like more details about your rights to an education while in the jail, you can review a copy of the J.W. v. Pierce County Settlement Agreement and Consent Decree, a court order upon which this summary of your rights is based, available in the jail law library.

If you have questions about anything in this notice, or if you have a complaint about the educational services you are receiving, please bring it to the attention of the principal. You may also contact the person monitoring the Settlement Agreement to make sure that its requirements are being met and the attorneys representing the youth in the jail and their parents/guardians.

Principal: Rue Palmer Tacoma Pierce County Education Center 5501 6th Avenue Tacoma, WA 98406 (253) 798-7990
J.W. v. Pierce County Settlement Monitor: Michael S. Blair PO Box 65435 Port Ludlow, WA 98365

J.W. v. Pierce County Attorneys: Gavin Thornton and Beth Colgan Columbia Legal Services Institutions Project 101 Yesler Way, Suite 300 Seattle, WA 98104 (206) 382-3399 (for collect calls from jail)

Please retain this notice for future reference.

Page 2 of 2

Case 3:09-cv-05430-RJB Document 36-3 Filed 03/29/10 Page 1 of 7

STUDENT RIGHTS
DUE PROCESS
Students may be subject to discipline, suspension or expulsion, including emergency expulsion, for violating district policies and regulations and school rules. The procedures for appealing these actions are found in Policy 3241, Regulation 3241R and WAC 392-400-240 through 320. In general, these require that student discipline be administered fairly and equitably and be subject to due process considerations. Copies of all policies and regulations, including Policy 3240 and Regulation 4210R, are available from the Public Information Office in the Central Administration Building or on the district’s Web site at www. tacomaschools.org/schoolboard/policies/index.asp.
FREEDOM OF EXPRESSION
1. Students are entitled to express their personal opinions verbally, symbolically and in writing. Student expression may not contain language or ideas of such a nature that it is reasonably probable that the expression will cause violent or unlawful behavior, be libelous, slanderous, profane, vulgar or obscene, or will materially and substantially interfere with the maintenance and operation of the schools, including, but not limited to, the preservation of the educational process. Intentionally intimidating, demeaning, harassing or threatening any students or staff based on race, religion, color, national origin or ancestry, sex, gender identity, sexual orientation, age, marital or veteran status, or disability will not be tolerated. The district also prohibits the use of racial, ethnic, and/or sexual slurs, including sexual harassment.
2. School-sponsored student publications and presentations are not public forums. School officials may review and exercise editorial control over school-sponsored student publications and presentations.
3. To prevent interference with the school program by non-school publications and distribution of leaﬂets and handbills, the principal will determine the time and place of distribution and clarify student responsibility for content.
4. Student groups which are not authorized by the Associated Student Body may conduct meetings during non-instructional time by submitting an application to the school principal. School personnel may not participate in the meeting and non-students may not initiate, direct, control or regularly attend the meetings.
5. Freedom of peaceful assembly is regulated in time, place and manner by the building administrator. Demonstrations which interfere with the operation of the school or classroom are prohibited. Class attendance takes precedence over freedom to assemble.

Harassment, intimidation or bullying means any intentional written message or image, including those that are electronically transmitted, a verbal or physical act, including, but not limited to, one shown to be motivated by any characteristic of race, color, religion, ancestry, national origin, gender identity, sexual orientation, mental or physical disability (RCW 9A.36.080(3)), or other distinguishing characteristic, when the intentional written, verbal or physical act:
s