U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:02−cv−05118−ENV−MDG

CLOSED

E.B. et al v. New York City Board of Education et al Assigned to: Judge Eric N. Vitaliano Referred to: Magistrate Judge Marilyn D. Go Demand: $0 Cause: 20:1400 Civil Rights of Handicapped Child
Plaintiff

Date Filed: 09/20/2002 Date Terminated: 07/24/2015 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

N.T. TERMINATED: 03/26/2004

represented by Elisa F. Hyman Advocates for Children 151 West 30th Street 5th Floor New York, NY 10001 (212) 947−9779 Fax: (212) 947−9790 Email: ehyman@advocatesforchildren.org TERMINATED: 04/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Stuart Scheinkman Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 212−450−4000 Fax: 212−450−3754 Email: michael.scheinkman@dpw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Hechtman Advocates for Children 151 West 30th Street New York, NY 10001 212−822−9545 Fax: 212−947−9790 TERMINATED: 07/24/2007 LEAD ATTORNEY

Abigail M. Kagle Manatt, Phelps & Phillips, LLP 7 Times Square New York, NY 10036 212−790−4500 Fax: 212−790−4545 Email: akagle@manatt.com TERMINATED: 08/06/2008

David J. Bloch Davis Polk & Wardwell

450 Lexington Avenue

New York, NY 10017 212−450−4780 Fax: 212−450−3780 TERMINATED: 07/24/2007 ATTORNEY TO BE NOTICED

Plaintiff
S.M. by and through his father K.M.

David Aaron Stier Davis Polk & Wardwell 450 Lexington Avenue Room 2748 New York, NY 10017 212−450−4000 Fax: 212−450−3705 Email: david.stier@dpw.com ATTORNEY TO BE NOTICED
Matthew S. Stewart Davis, Polk & Wardwell 450 Lexington Avenue New York, NY 10017 212−450−4468 Fax: 212−450−3468 ATTORNEY TO BE NOTICED
Sharon Katz Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 212−450−4000 Email: skatz@dpw.com ATTORNEY TO BE NOTICED
Shawn V. Morehead Advocates for Children of New York, Inc. 151 W 30th Street 5th Floor New York, NY 10001 212−822−9525 Fax: 212−947−9790 Email: smorehead@advocatesforchildren.org TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
represented by Elisa F. Hyman (See above for address) TERMINATED: 04/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Stuart Scheinkman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Caren Shore Advocates for Children 151 W 30th Street 5th Floor New York, NY 10001 (212)822−9574 Fax: (212)947−9790 Email: rshore@advocatesforchildren.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Hechtman (See above for address) TERMINATED: 07/24/2007

Plaintiff
B.N. by and through his mother R.N. TERMINATED: 03/26/2004

LEAD ATTORNEY
Abigail M. Kagle (See above for address) TERMINATED: 08/06/2008
Alexis Gena Stone Cohen & Gresser LLP 800 Third Ave 21st Floor New York, NY 10022 212−957−7600 Fax: 212−957−4514 Email: astone@cohengresser.com TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
Bernard Dufresne Advocates for Children of NY, Inc. 151 West 30th Street 5th Floor New York, NY 10001 212−822−9572 Fax: 212−947−9790 Email: bdufresne@afcnyc.org ATTORNEY TO BE NOTICED
David J. Bloch (See above for address) TERMINATED: 07/24/2007 ATTORNEY TO BE NOTICED
David Aaron Stier (See above for address) ATTORNEY TO BE NOTICED
Matthew S. Stewart (See above for address) ATTORNEY TO BE NOTICED
Sharon Katz (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
represented by Elisa F. Hyman (See above for address) TERMINATED: 04/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Stuart Scheinkman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Hechtman (See above for address) TERMINATED: 07/24/2007

Plaintiff
J.W. by and through his mother Y.C., on behalf of themselves and all others similarly situated

LEAD ATTORNEY
Abigail M. Kagle (See above for address) TERMINATED: 08/06/2008
Bernard Dufresne (See above for address) ATTORNEY TO BE NOTICED
David J. Bloch (See above for address) TERMINATED: 07/24/2007 ATTORNEY TO BE NOTICED
David Aaron Stier (See above for address) ATTORNEY TO BE NOTICED
Matthew S. Stewart (See above for address) ATTORNEY TO BE NOTICED
Sharon Katz (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
represented by Elisa F. Hyman (See above for address) TERMINATED: 04/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Stuart Scheinkman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Caren Shore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Hechtman (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY
Abigail M. Kagle (See above for address) TERMINATED: 08/06/2008
Alexis Gena Stone (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
Bernard Dufresne

Plaintiff
EB by and through his mother and next friend, V .P.

(See above for address) ATTORNEY TO BE NOTICED
David J. Bloch (See above for address) TERMINATED: 07/24/2007 ATTORNEY TO BE NOTICED
David Aaron Stier (See above for address) ATTORNEY TO BE NOTICED
Matthew S. Stewart (See above for address) ATTORNEY TO BE NOTICED
Sharon Katz (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
represented by Michael Stuart Scheinkman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Caren Shore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Hechtman (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY
Abigail M. Kagle (See above for address) TERMINATED: 08/06/2008
Alexis Gena Stone (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
Bernard Dufresne (See above for address) ATTORNEY TO BE NOTICED
David J. Bloch (See above for address) TERMINATED: 07/24/2007 ATTORNEY TO BE NOTICED
David Aaron Stier (See above for address) ATTORNEY TO BE NOTICED
Matthew S. Stewart

Plaintiff
AJ by and through his guardian and next friend,.I.F.

(See above for address) ATTORNEY TO BE NOTICED
Sharon Katz (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
Elisa F. Hyman (See above for address) TERMINATED: 04/02/2007 ATTORNEY TO BE NOTICED
represented by Michael Stuart Scheinkman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Caren Shore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Hechtman (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY
Abigail M. Kagle (See above for address) TERMINATED: 08/06/2008
Alexis Gena Stone (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
Bernard Dufresne (See above for address) ATTORNEY TO BE NOTICED
David J. Bloch (See above for address) TERMINATED: 07/24/2007 ATTORNEY TO BE NOTICED
David Aaron Stier (See above for address) ATTORNEY TO BE NOTICED
Matthew S. Stewart (See above for address) ATTORNEY TO BE NOTICED
Sharon Katz (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead

Plaintiff LBI

(See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
Elisa F. Hyman (See above for address) TERMINATED: 04/02/2007 ATTORNEY TO BE NOTICED
represented by Michael Stuart Scheinkman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Caren Shore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Hechtman (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY
Abigail M. Kagle (See above for address) TERMINATED: 08/06/2008
Alexis Gena Stone (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED
Bernard Dufresne (See above for address) ATTORNEY TO BE NOTICED
David J. Bloch (See above for address) TERMINATED: 07/24/2007 ATTORNEY TO BE NOTICED
David Aaron Stier (See above for address) ATTORNEY TO BE NOTICED
Elisa F. Hyman (See above for address) TERMINATED: 04/02/2007 ATTORNEY TO BE NOTICED
Matthew S. Stewart (See above for address) ATTORNEY TO BE NOTICED
Sharon Katz (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead (See above for address) TERMINATED: 02/16/2009 ATTORNEY TO BE NOTICED

V. Defendant New York City Board of Education

represented by Carolyn Michelle Wolpert The City of New York Law Department Office of Corporation Counsel 100 Church Street New York, NY 10007 (212) 788−1158 Fax: (212) 788−0877 Email: cwolpert@law.nyc.gov TERMINATED: 11/03/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janice L. Birnbaum New York City Law Department 100 Church Street Room 2−195 New York, NY 10007 (212)513−7970 Fax: (212)788−0940 Email: jbirnbau@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Fleming Grumet Corporation Counsel of the City of NY 100 Church Street New York, NY 10007 212−788−1165 Email: lgrumet@law.nyc.gov TERMINATED: 02/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew James Rauchberg New York City Law Department 100 Church Street New York, NY 10007 212−356−0891 Fax: 212−356−8760 Email: arauchbe@law.nyc.gov ATTORNEY TO BE NOTICED
Chevon Andre Brooks New York City Law Department 100 Church Street New York, NY 10007 212−788−0874 Fax: 212−788−0367 Email: chbrooks@law.nyc.gov TERMINATED: 01/07/2010 ATTORNEY TO BE NOTICED
Eamonn Francis Foley The City of New York Law Department 100 Church Street Room 2−197 New York, NY 10007 212−356−2442 Fax: 212−788−8877 Email: eamonn.foley@nyct.com

Defendant New York City Department of Education
Defendant Joel Klein in his official capacity as Chancellor of the New York City School District

TERMINATED: 02/12/2009 ATTORNEY TO BE NOTICED
represented by Carolyn Michelle Wolpert (See above for address) TERMINATED: 11/03/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janice L. Birnbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Fleming Grumet (See above for address) TERMINATED: 02/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew James Rauchberg (See above for address) ATTORNEY TO BE NOTICED
Chevon Andre Brooks (See above for address) TERMINATED: 01/07/2010 ATTORNEY TO BE NOTICED
Eamonn Francis Foley (See above for address) TERMINATED: 02/12/2009 ATTORNEY TO BE NOTICED
represented by Carolyn Michelle Wolpert (See above for address) TERMINATED: 11/03/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janice L. Birnbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Fleming Grumet (See above for address) TERMINATED: 02/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew James Rauchberg (See above for address) ATTORNEY TO BE NOTICED
Chevon Andre Brooks (See above for address) TERMINATED: 01/07/2010 ATTORNEY TO BE NOTICED
Eamonn Francis Foley (See above for address)

Defendant
KSG by and through his mother and next friend ,DP;
Defendant
IP by and through his mother and next friend, DP;

TERMINATED: 02/12/2009 ATTORNEY TO BE NOTICED

Date Filed 09/20/2002
09/24/2002
09/24/2002 09/24/2002
10/24/2002 11/05/2002 12/05/2002 12/10/2002
01/29/2003 02/04/2003
02/10/2003 02/12/2003 03/19/2003 03/19/2003 03/31/2003

# Docket Text
1 Complaint filed and summons issued as to defendant(s) Joel Klein, New York City Board of Education, New York City Department of Education. Filing fee $150.00. Receipt number: 267028.. Filed by Elisa F. Hyman on behalf of B.N., J.W., N.T., S.M.. (Attachments: # 1 Civil Cover Sheet)(Bowens, Priscilla) (Entered: 09/20/2002)
2 By Mag Go Order to Show Cause dtd. 9/20/02 pltff. may proceed under the pseudonyms N.T.; S.M., by and through his father K.M.; B.N., by and through his mother R.N.; and J.W. by and through his mother Y.C.;. (Jackson, Ramona) (Entered: 09/24/2002)
3 Declaration in support of pltff's motion to proceed under pseudonyms filed by Elisa F. Hyman on behalf of B.N., J.W., N.T., S.M.. (Jackson, Ramona) (Entered: 09/24/2002)
4 Declaration Memo. of Law in support of motion to proceed under pseudonyms filed by Elisa F. Hyman on behalf of B.N., J.W., N.T., S.M.. (Jackson, Ramona) (Entered: 09/24/2002)
5 Order extending time Answer due by 12/10/2002. On ltr. dtd. 10/9/02 from Janice Birnbaum(Jackson, Ramona) (Entered: 10/24/2002)
6 AMENDED COMPLAINT against all defendants, filed by EB, AJ.(Hyman, Elisa) (Entered: 11/05/2002)
7 Letter from Janice Birnbaum. (Birnbaum, Janice) (Entered: 12/05/2002)
ORDER endorsed on 7 Letter: Dfts' time to respond to the pltfs' amended complaint is extended to 1/31/03. Signed by Judge Charles P. Sifton on 12/9/02. C/M.(Fahey, Lauren) (Entered: 12/10/2002)
8 Letter from Janice Birnbaum. (Birnbaum, Janice) (Entered: 01/29/2003)
9 ORDER Extension of time to respond to amended complaint to Feb. 7,2003. On ltr. dtd. 1/29/03 from Janice Birnbaum.. Signed by Judge Charles P. Sifton on 1/30/03. (Jackson, Ramona) (Entered: 02/04/2003)
10 ANSWER to Amended Complaint by New York City Board of Education.(Birnbaum, Janice) (Entered: 02/10/2003)
11 Initial conference scheduled for 3/19/2003 at 3:00 p.m. as per attached order. Signed by Judge Marilyn D. Go on 02/12/03. (DeVeaux, Yvonne) (Entered: 02/12/2003)
12 Letter from Janice L.Birnbaum to Mag. Go request adjn. of conf. to March 31,2003 @ 3:00.. (Jackson, Ramona) (Entered: 03/19/2003)
ORDER re 12 Letter, granting adjournment to 3/31/03 at 3:00 p.m.. Signed by Judge Marilyn D. Go on 3/19/03. (Go, Marilyn) (Entered: 03/19/2003)
Minute Entry for proceedings held before Marilyn D. Go : Initial Conference Hearing held on 3/31/2003. Appearances by counsel of record. Counsel for defendants should promptly confer with plaintiffs' counsel regarding her contemplated motion to dismiss. With defendants' consent, plaintiffs are given leaven to file an amended complaint by 4/28/03. Any motion to dismiss must be filed by 5/19/03. Opposing papers are due

04/25/2003
05/02/2003 05/16/2003 05/16/2003
05/29/2003 05/29/2003 06/16/2003 06/18/2003 06/18/2003 07/09/2003
07/15/2003 07/25/2003 07/25/2003 07/31/2003 08/13/2003 08/15/2003

6/9/03 and a reply by 6/23/03. The remainder of the scheduling order will be discussed at the next conference scheduled for May 20, 2003 at 2:00 p.m. (Go, Marilyn) (Entered: 03/31/2003)
ORDER granting letter request of Elisa Hyman, plaintiff's counsel. The schedule previously set is extended as follows: amended complaint must be filed by 5/5/03. Any motion to dismiss must be filed by 5/27/03. Opposing papers are due 6/10/03 and a reply by 7/1/03. THE PARTIES ARE REMINDED THAT THIS CASE IS DESIGNATED FOR ELECTRONIC CASE FILING ("ECF"). THE COURT MAY DISREGARD FUTURE SUBMISSIONS NOT FILED VIA ECF. Signed by Judge Marilyn D. Go on 4/25/03. (Go, Marilyn) (Entered: 04/25/2003)
13 AMENDED DOCUMENT by N.T.. Second Amended Class Action Complaint for Injunctive, Declaratory and Other Relief. (Hyman, Elisa) (Entered: 05/02/2003)
14 Letter from C.Wolpert (via J. Birnbaum) to Mag. Go Regarding upcoming conference, assignment of C. Wolpert as defense counsel, and scheduling. (Birnbaum, Janice) (Entered: 05/16/2003)
ORDER granting 14 Letter from C. Wolpert. The time for defendants' motion to dismiss is extended as follows: motion must be filed by 6/27/03; opposing papers are due 7/10/03 and a reply is due by 8/1/03. Signed by Judge Marilyn D. Go on 5/16/03. (Go, Marilyn) (Entered: 05/16/2003)
Email Test (Guzzi, Roseann) (Entered: 05/29/2003)
Email Test (Permaul, Jenny) (Entered: 05/29/2003)
15 Letter from Carolyn Wolpert to Mag Go Regarding confirm conf. for July 9,2003.. (Jackson, Ramona) (Entered: 06/16/2003)
16 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding Request for an extension of the current briefing schedule for defendants' motion to dismiss. (Wolpert, Carolyn) (Entered: 06/18/2003)
ORDER granting re 16 Letter application extending the motion schedule. Signed by Judge Marilyn D. Go on 6/18/03. (Go, Marilyn) (Entered: 06/18/2003)
Status Conference held on 7/9/2003 at 10:00 a.m. before Marilyn D. Go : Appearances by telephone by Elisa Hyman and Carolyn Wolpert. There being no opposition, plaintiffs are given leave to file a third amended complaint which streamlines the claims in this action. The prior schedule for the motion to dismiss remains unchanged. Plaintiffs' motion for class certification must be filed by 8/15/03. Defendants' counsel must be prepared to discuss the question of discovery needed at the next scheduled conference. If the parties cannot resolve the dispute over disclosure of plaintiffs' records in light of FERPA, plaintiffs must make a prompt application. Next conference scheduled for August 25, 2003 at 9:45 a.m. (by tel).(DeVeaux, Yvonne) (Entered: 07/09/2003)
17 AMENDED DOCUMENT by N.T.. Third Amended Class Action Complaint for Injunctive, Declaratory and Other Relief. (Hyman, Elisa) (Entered: 07/15/2003)
18 MOTION to Dismiss for Lack of Jurisdiction by Joel Klein, New York City Board of Education, New York City Department of Education. Responses due by 8/15/2003 (Wolpert, Carolyn) (Entered: 07/25/2003)
19 MOTION to Dismiss for Lack of Jurisdiction (Memorandum of Law in Support) by Joel Klein, New York City Board of Education, New York City Department of Education. Responses due by 8/15/2003 (Wolpert, Carolyn) (Entered: 07/25/2003)
20 Notice of MOTION to Dismiss (Amended) by Joel Klein, New York City Board of Education, New York City Department of Education. Responses due by 8/15/2003 (Wolpert, Carolyn) (Entered: 07/31/2003)
21 Letter from E. Hyman to Magistrate Judge Go Regarding Request for Extension. (Hyman, Elisa) (Entered: 08/13/2003)
ORDER re 16 Letter, 21 Letter. Plaintiffs' time to file their opposition to the motion to dismiss is extended to 8/21/03. The schedule for defendants' reply and the class

08/20/2003 08/22/2003 08/25/2003
09/05/2003 09/10/2003 09/17/2003
09/17/2003
09/25/2003 09/26/2003 10/03/2003 10/03/2003 10/06/2003 10/07/2003 10/07/2003 10/07/2003

certification motion will be discussed at the next scheduled conference on August 25, 2003 at 9:45 a.m. Signed by Judge Marilyn D. Go on 8/15/03. (Go, Marilyn) (Entered: 08/15/2003)
22 RESPONSE in Opposition re 18 MOTION to Dismiss for Lack of Jurisdiction, 19 MOTION to Dismiss for Lack of Jurisdiction (Memorandum of Law in Support), 20 Notice of MOTION to Dismiss (Amended) filed by N.T.. (Hyman, Elisa) (Entered: 08/20/2003)
23 RESPONSE in Opposition re 18 MOTION to Dismiss for Lack of Jurisdiction, 19 MOTION to Dismiss for Lack of Jurisdiction (Memorandum of Law in Support), 20 Notice of MOTION to Dismiss (Amended) Declaration of Elisa Hyman in Support of Opposition to Motion to Dismiss filed by N.T.. (Hyman, Elisa) (Entered: 08/22/2003)
Calendar Entry for proceedings held before Marilyn D. Go on 8/25/2003. Appearances by Carolyn Wolpert and Elisa Hyman. Defendants' reply to plaintiffs' opposition to motion to dismiss is due 9/17/03. The parties should work to submit a set of joint exhibits with respect to documents referenced in the motion. Plaintiffs' motion for class certification must be filed 9/29/03; opposing papers by 10/21/03 and a reply by 11/3/03. Defendants should engage in discovery with respect to the class certification motion, to the extent apparent from plaintiffs' submissions in opposition to the motion to dismiss. (DeVeaux, Yvonne) (Entered: 08/25/2003)
24 Letter from Carolyn Wolpert to Judge Sifton Regarding Rescheduling Oral Argument of Defendants' Motion to Dismiss. (Wolpert, Carolyn) (Entered: 09/05/2003)
ORDER re 24 Motion to dismiss to Oct. 8,2003. On ltr. dtd. 9/5/03 from Carolyn Wolpert.. Signed by Judge Charles P. Sifton on 9/8/03. (Jackson, Ramona) (Entered: 09/10/2003)
25 REPLY to Response to Motion re 18 MOTION to Dismiss for Lack of Jurisdiction, 19 MOTION to Dismiss for Lack of Jurisdiction (Memorandum of Law in Support), 20 Notice of MOTION to Dismiss (Amended) Defendants' Reply Memorandum of Law filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Wolpert, Carolyn) (Entered: 09/17/2003)
26 REPLY to Response to Motion re 18 MOTION to Dismiss for Lack of Jurisdiction, 19 MOTION to Dismiss for Lack of Jurisdiction (Memorandum of Law in Support), 20 Notice of MOTION to Dismiss (Amended) Declaration of Carolyn Wolpert filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Wolpert, Carolyn) (Entered: 09/17/2003)
27 Letter from Elisa Hyman to Magistrate Judge Go Regarding Request for Extension. (Hyman, Elisa) (Entered: 09/25/2003)
ORDER: 27 Letter request for extension of the deadlines for submissions regarding the class certification motion granted. Signed by Judge Marilyn D. Go on 9/26/03. (Go, Marilyn) (Entered: 09/26/2003)
28 First MOTION to Certify Class by N.T.. Responses due by 10/24/2003 (Hyman, Elisa) (Entered: 10/03/2003)
29 First MOTION to Certify Class Memorandum of Law and Declaration in Support by N.T.. Responses due by 10/24/2003 (Attachments: # 1 Affidavit Declaration of E. Hyman)(Hyman, Elisa) (Entered: 10/03/2003)
30 AFFIDAVIT in Opposition re 20 Notice of MOTION to Dismiss (Amended) Supplemental Declaration of Elisa Hyman filed by N.T.. (Hyman, Elisa) (Entered: 10/06/2003)
31 EXHIBIT Volume 1 Exhibits to the Declaration of Elisa Hyman Esq. in support of pltff's motion for class Certification(Jackson, Ramona) (Entered: 10/07/2003)
32 EXHIBIT Volume 11 Exhibits to the Declaration of Elisa Hyman Esq. in support of pltff's motion for class certification.(Jackson, Ramona) (Entered: 10/07/2003)
33 EXHIBIT Volume 111 Exhibits to the Declaration of Elisa Hyman Esq. in support of pltff's motion for class certification(Jackson, Ramona) (Entered: 10/07/2003)

10/07/2003 10/07/2003 10/09/2003 10/09/2003 10/10/2003
10/14/2003 10/15/2003 10/16/2003
10/24/2003
11/03/2003 11/03/2003 11/05/2003 11/10/2003 11/18/2003
11/26/2003
11/26/2003

34 EXHIBIT Volume 1V Exhibits to the Declaration of Elisa Hyman Esq. in support of pltff's motion for class certification(Jackson, Ramona) (Entered: 10/07/2003)
35 Declaration of CAROLYN WOLPERT re 18 Exhibits to MOTION to Dismiss for Lack of Jurisdiction by New York City Board of Education, New York City Department of Education. (Jackson, Ramona) (Entered: 10/07/2003)
36 Letter from Carolyn Wolpert to Magistrate Go Regarding Briefing Schedule for plantiffs' motion for class certification. (Wolpert, Carolyn) (Entered: 10/09/2003)
37 Letter from E. Hyman to Magistrate Go Regarding Plaintiffs' Opposition to Defendants' Requests for (i) an Extension and (ii) Order Regarding Discovery. (Hyman, Elisa) (Entered: 10/09/2003)
ORDER: Magistrate Judge Marilyn D. Go will hold a conference immediately following your oral argument before Judge Sifton on 10/15/2003. The schedule for class discovery, if any, and for submissions on the class certification motion will be discussed. If there is any change in the date or time, please notify us.Signed by Judge Marilyn D. Go on 10/10/03. (DeVeaux, Yvonne) (Entered: 10/10/2003)
38 Letter from Carolyn Wolpert to Magistrate Go Regarding plaintiffs' letter of October 9, 2003. (Wolpert, Carolyn) (Entered: 10/14/2003)
39 Minute Entry for proceedings held before Charles P. Sifton : Motion Hearing held on 10/15/2003 Case called. Motion of deft's for summary judgment argued. Decision RESERVED. (Entered: 10/21/2003)
Calendar entry for proceedings held before Marilyn D. Go on 10/15/2003: Appearances by Elisa Hyman, Randi Waldman, Carolyn Wolpert and Alexandra Michalos. Counsel should discuss defendants' discovery requests concern the class certification motion prior to the next conference. NEXT CONFERENCE SCHEDULED FOR October 23, 2003 at 4:00 p.m. (DeVeaux, Yvonne) (Entered: 10/16/2003)
Calendar Entry for proceedings held before Marilyn D. Go on 10/23/2003: Appearances by counsel of record. The parties are given two weeks to engage in discussions to see if they can settle this case. If they are not close to agreement by the next conference, a schedule will be issued on class discovery. Next conference scheduled for Nov. 5, 2003 at 9:45 a.m. (DeVeaux, Yvonne) (Entered: 10/24/2003)
40 Letter from Elisa Hyman to Magistrate Judge Go Regarding Conference. (Hyman, Elisa) (Entered: 11/03/2003)
ORDER granting 40 Letter request for an adjournment. The next conference is adjourned to November 18, 2003 at 12:00 noon. Signed by Judge Marilyn D. Go on 11/3/03. (Go, Marilyn) (Entered: 11/03/2003)
41 TRANSCRIPT of motion hearing held on 10/15/03 before Judge Sifton. Court Reporter: Fiore Transcription Service. (Jackson, Ramona) (Entered: 11/05/2003)
42 Letter from Carolyn Wolpert to The Honorable Charles P. Sifton Regarding rescheduling oral argument of plaintiffs' motion for class certification. (Wolpert, Carolyn) (Entered: 11/10/2003)
Minute Entry for telephone Conference held before Marilyn D. Go on 11/18/2003: Appearances by Elisa Hyman and Carolyn Wolpert. Settlement discussions are progressing, as well as narrowing of issues re class discovery. Next conference scheduled for Nov. 26, 2003 at 9:45 a.m. (by telephone) (DeVeaux, Yvonne) (Entered: 11/18/2003)
Minute Entry for proceedings held before Marilyn D. Go: Discovery Hearing held on 11/26/2003. Class discovery must be completed by 1/30/04. No extensions will be granted. Plaintiffs must promptly completion production of requested documents so depositions may proceed. Defendants' opposition to the class certification motion is due 2/26/04 and plaintiffs' reply is due 3/18/04. (Go, Marilyn) (Entered: 11/26/2003)
43 Letter from Carolyn Wolpert to Judge Sifton Regarding adjourning oral argument of plaintiffs' motion for class certification. (Wolpert, Carolyn) (Entered: 11/26/2003)

12/04/2003 12/10/2003 01/27/2004 01/27/2004 01/28/2004
01/28/2004 01/29/2004 01/30/2004
02/13/2004 02/25/2004 03/05/2004
03/05/2004 03/05/2004
03/05/2004

44 ORDER request adjournment of argument to 12/12/03. On ltr. dtd. 11/10/03 from Carolyn Wolpert.. Signed by Judge Charles P. Sifton on 11/18/03. (Jackson, Ramona) (Entered: 12/04/2003)
45 ORDER Oral argument adjourned to march 30,2004. On ltr. dtd. 11/26/03 from Carolyn Wolpert.. Signed by Judge Charles P. Sifton on 12/4/03. (Jackson, Ramona) (Entered: 12/10/2003)
46 Letter from Carolyn Wolpert to Magistrate Go Regarding Class Discovery. (Wolpert, Carolyn) (Entered: 01/27/2004)
47 Letter from Elisa Hyman to Magistrate Judge Go Regarding Class Discovery. (Hyman, Elisa) (Entered: 01/27/2004)
ORDER re 46 Letter from Carolyn Wolpert and 47 Letter from Elisa Hyman Regarding Class Discovery. A telephone conference will be held on Jan. 30, 2004 at 1:15 p.m. to discuss remaining class discovery. Counsel must confer prior to the conference. Signed by Judge Marilyn D. Go on 1/28/04. (Go, Marilyn) (Entered: 01/28/2004)
48 Letter from Carolyn Wolpert to Magistrate Judge Marilyn Dolan Go Regarding Plaintiffs' Letter dated January 27, 2004. (Wolpert, Carolyn) (Entered: 01/28/2004)
49 MEMORANDUM AND OPINION For the reasons set forth above, deft's motion to dismiss this action for lack of personal jurisdiction is DENIED.. Signed by Judge Charles P. Sifton on 1/26/04. (Jackson, Ramona) Copies mailed. (Entered: 01/29/2004)
Minute Entry for proceedings held before Marilyn D. Go : Telephone Conference held on 1/30/2004. Appearances by telephone by Randee Waldman, Janice Birnbaum and Carolyn Wolpert. Defendants may conduct the depositions of plaintiffs N.T. and K.S.G. for all purposes, subject to the following restrictions: each deposition is limited to one hour and defendants must make a good faith effort to minimize the length of the deposition and first propound interrogatories by 2/4/04 as to straightforward factual matters. Plaintiffs' responses are due 2/13/04. Depositions must be held the week of 2/16/04. If attempts to resolve the objections to discovery requests are unsuccessful, defendants' motion to compel must be filed by 2/18/04 and opposition by 2/23/04. Defendants' opposition to the motion for class certification must be filed by 3/19/04 and plaintiffs' reply by 4/5/04. (Go, Marilyn) (Entered: 01/30/2004)
50 Letter from Carolyn Wolpert to Magistrate Judge Marilyn Dolan Go Regarding Defendants' Motion to Compel. (Wolpert, Carolyn) (Entered: 02/13/2004)
51 Letter from Carolyn Wolpert to Magistrate Judge Marilyn Dolan Go Regarding Class Discovery. (Wolpert, Carolyn) (Entered: 02/25/2004)
Case set to ECF status. All civil actions before this Judge are ECF matters. It is MANDATORY that you file all original documents electronically Please refer to the Judge's Individual Rules. From this point forward, original documents are REQUIRED to be filed electronically. The Judges' Individual Rules of Chambers and further information on ECF may be found at the website for the Eastern District of New York at www.nyed.uscourts.gov. (Jackson, Ramona) (Entered: 03/05/2004)
52 ORDER Application GRANTED. deft's must file their motion to compel by 2/25/04. On ltr. dtd. 2/13/04 from Carolyn Wolpert.. Signed by Judge Marilyn D. Go on 2/13/04. (Jackson, Ramona) (Entered: 03/05/2004)
ORDER granting 51 letter application of Carolyn Wolpert regarding class discovery. Plaintiffs' counsel must supplement discovery responses within two days after receipt of documents from their clients, if received prior to the date for defendants' opposition to the class certification motion, and within one week if after that date. Signed by Judge Marilyn D. Go on 3/5/04. (Go, Marilyn) (Entered: 03/05/2004)
ORDER supplementing 3/5/04 ORDER granting 51 letter application of Carolyn Wolpert regarding class discovery. With respect to any documents received from clients within ten days before the oral argument date, plaintiffs' counsel must supplement discovery responses within two days after receipt of documents from their clients. Signed by Judge Marilyn D. Go on 3/5/04. (Go, Marilyn) (Entered: 03/05/2004)

03/09/2004 03/15/2004 03/16/2004 03/19/2004 03/19/2004 03/19/2004
03/26/2004 04/07/2004
04/08/2004 04/13/2004 04/13/2004 07/15/2004
07/22/2004 07/26/2004
08/04/2004 08/05/2004

53 Letter from Carolyn Wolpert to Judge Sifton Regarding oral argument of plaintiffs' motion for class certification. (Wolpert, Carolyn) (Entered: 03/09/2004)
54 Letter from Carolyn Wolpert to Judge Sifton Regarding Stipulation. (Wolpert, Carolyn) (Entered: 03/15/2004)
55 ORDER Oral argument on motion for class certification to April 20,2004. Deft's opposition March 19,2004. Pltff's reply April 5,2004. On ltr. dtd. 3/9/04 from Carolyn Wolpert.. Signed by Judge Charles P. Sifton on 3/10/04. (Jackson, Ramona) (Entered: 03/16/2004)
56 Letter from Carolyn Wolpert to Judge Sifton Regarding Filing of Defendants' Opposition to Plaintiffs' Motion for Class Certification. (Wolpert, Carolyn) (Entered: 03/19/2004)
57 RESPONSE in Opposition re 28 First MOTION to Certify Class, 29 First MOTION to Certify Class Memorandum of Law and Declaration in Support filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Wolpert, Carolyn) (Entered: 03/19/2004)
58 AFFIDAVIT in Opposition re 28 First MOTION to Certify Class, 29 First MOTION to Certify Class Memorandum of Law and Declaration in Support filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Attachments: # 1 Affidavit Exhibit BB, Declaration of Lori Mei# 2 Affidavit Exhibit CC − Declaration of Quin Werthauer# 3 Affidavit Exhibit DD − Declaration of Lois Kessler# 4 Affidavit Exhibit EE − Declaration of Leslie Matuk)(Wolpert, Carolyn) (Entered: 03/19/2004)
59 STIPULATION AND ORDER Caption is hereby changed.. Signed by Judge Charles P. Sifton on 3/18/04. (Jackson, Ramona) (Entered: 03/26/2004)
60 REPLY to Response to Motion re 28 First MOTION to Certify Class, 29 First MOTION to Certify Class Memorandum of Law and Declaration in Support filed by EB. (Attachments: # 1 Affidavit Declaration of Elisa Hyman dated April 7, 2004# 2 Letter to Judge Sifton regarding filing of exhibits by hand)(Hyman, Elisa) (Entered: 04/07/2004)
61 ORDER Extension of time to 4/7/04, to reply to memo. in opposition.to motion for class certification.. Signed by Judge Charles P. Sifton on 4/5/04. (Jackson, Ramona) (Entered: 04/08/2004)
62 reply Memo. in further in Support re 29 First MOTION to Certify Class Memorandum of Law and Declaration in Support filed by AJ, EB, J.W., LBI, S.M.. (Jackson, Ramona) (Entered: 04/13/2004)
63 Declaration of ELISA HYMAN by AJ, EB, J.W., LBI, N.T., S.M. in further support of pltff's motion for class certification. (Jackson, Ramona) (Entered: 04/13/2004)
65 Minute Entry for proceedings held before Charles P. Sifton : Motion Hearing held on 7/15/2004 re 28 First MOTION to Certify Class filed by N.T., 29 First MOTION to Certify Class Memorandum of Law and Declaration in Support filed by N.T. (Court Reporter Winnie Valentine.) Decision RESERVED. (Jackson, Ramona) (Entered: 07/29/2004)
64 MEMORANDUM AND OPINION Pltff's motion to certify the class is GRANTED. The motion to certify subclass is DENIED.. Signed by Judge Charles P. Sifton on 7/19/04. (Jackson, Ramona) copies mailed (Entered: 07/22/2004)
ORDER: A status conference will be held in the above−captioned case before Marilyn Dolan Go on August 11, 2004 at 2:30 p.m. in Room 357 at the United States Courthouse. All counsel should confirm with each other that all necessary participants are aware of this conferenceSigned by Judge Marilyn D. Go on 7/26/04. (DeVeaux, Yvonne) (Entered: 07/26/2004)
66 TRANSCRIPT of Motion held on July 15,2004 before Judge Sifton. Court Reporter: Rosalie Lombardi. (Jackson, Ramona) (Entered: 08/04/2004)
67 Letter from E. Hyman to Judge Go Regarding Request to adjourn conference. (Hyman, Elisa) (Entered: 08/05/2004)

08/05/2004 08/12/2004 08/18/2004
09/15/2004
09/15/2004 10/13/2004 10/14/2004 10/18/2004 10/20/2004 10/20/2004 10/20/2004 10/20/2004 11/02/2004 11/10/2004 11/15/2004 11/29/2004 11/30/2004 12/03/2004 12/07/2004

68 Letter from Carolyn Wolpert to Magistrate Judge Marilyn Dolan Go Regarding confirming status conference at 12:00 p.m. on Wednesday, September 15, 2004. (Wolpert, Carolyn) (Entered: 08/05/2004)
69 Letter from Sarah Hechtman to Judge Sifton Regarding class certification Order. (Hechtman, Sarah) (Entered: 08/12/2004)
70 CORRECTED MEMORANDUM AND ORDER For the reasons stated, the pltff's motion to certify class is GRANTED, The motion to certify subclass is DENIED without prejudice.. Signed by Judge Charles P. Sifton on 8/17/04. (Jackson, Ramona) Copies Mailed (Entered: 08/18/2004)
Minute Entry for proceedings held before Marilyn D. Go : Interim Pretrial Conference held on 9/15/2004. Appearances by Elisa Hyman, Sarah Hechtman, Cynthia Godsoe, Carolyn Wolpert. Parties must serve written discovery requests within one month and discuss a confidentiality order. A scheduling order will be issued at the next conference scheduled for Nov. 5, 2004 at 11:30 a.m. (Go, Marilyn) (Entered: 09/15/2004)
71 NOTICE of Appearance by Sarah B. Hechtman on behalf of NT Class Action plaintiffs'.(Guzzi, Roseann) (Entered: 09/17/2004)
72 Letter from Ehyman to Judge Go Regarding Request for Extension and Adjournment of Conference. (Hyman, Elisa) (Entered: 10/13/2004)
ORDER re 72 Letter. Extension of time to serve discovery requests granted. The next conference is adjourned to November 12, 2004 at 11:00 a.m.Signed by Judge Marilyn D. Go on 10/14/04. (DeVeaux, Yvonne) (Entered: 10/14/2004)
73 Letter from E. Hyman, Counsel for Plaintiffs to Judge Charles P. Sifton Regarding Plaintiffs' Request for a Conference. (Hyman, Elisa) (Entered: 10/18/2004)
74 Letter from Carolyn Wolpert to Judge Sifton Regarding plaintiffs' counsel's letter dated October 18, 2004. (Wolpert, Carolyn) (Entered: 10/20/2004)
75 Letter from E. Hyman, Esq. to Judge Marilyn Go Regarding Request for Extension. (Hyman, Elisa) (Entered: 10/20/2004)
ORDER granting 75 Letter request for one week extension to serve discovery requests. The next conference is adjourned to Nov. 19, 2004 at 9:15 a.m. Signed by Judge Marilyn D. Go on 10/20/04. (Go, Marilyn) (Entered: 10/20/2004)
76 Minute Entry for proceedings held before Charles P. Sifton : Status Conference held on 10/20/2004. (Court Reporter Winnie Valentine.) Status conf. continued to 10/28/04 @ 4:30. (Jackson, Ramona) (Entered: 11/01/2004)
77 ORDER Status conf. adjourned to 11/10/04 @ 4:30. On ltr. dtd. 10/27/04 from Cynthia Godsoe.. Signed by Judge Charles P. Sifton on 11/1/04. (Jackson, Ramona) (Entered: 11/02/2004)
78 Letter from Sharon Katz to Judge Go Regarding request to adjourn discovery conference from 11/17/04 to the week of 1/3/05. (Lippman, Russell) (Entered: 11/10/2004)
ORDER re 78 Letter. The next conference is adjourned to Dec. 22, 2004 at 11:00 a.m. Signed by Judge Marilyn D. Go on 11/15/04. (Go, Marilyn) (Entered: 11/15/2004)
79 NOTICE of Appearance by Cynthia M. Godsoe on behalf of all plaintiffs (Godsoe, Cynthia) (Entered: 11/29/2004)
80 ORDER Status conf. adjourned to 12/6/04 @ 4:30. On ltr. dtd. 11/23/04 from Sarah B. Hechtman.. Signed by Judge Charles P. Sifton on 11/24/04. (Jackson, Ramona) (Entered: 11/30/2004)
81 ORDER request adjournment of status conf. On ltr. dtd. 11/9/04 from Carolyn Wolpert.. Signed by Judge Sandra L. Townes on 11/9/04. (Jackson, Ramona) (Entered: 12/03/2004)
82 ORDER adjournment of status conf. to 1/5/05 @ 4:30. On ltr. dtd. 12/2/04 from Carolyn Wolpert.. Signed by Judge Charles P. Sifton on 12/6/04. (Jackson, Ramona)

12/13/2004 12/14/2004
12/30/2004 01/03/2005 01/03/2005 01/03/2005 01/11/2005 01/12/2005 01/13/2005
01/13/2005 01/14/2005 01/20/2005 02/01/2005 02/03/2005 02/03/2005

(Entered: 12/07/2004)
83 Letter from Carolyn Wolpert to Magistrate Judge Go Regarding adjournment of December 22, 2004 conference. (Wolpert, Carolyn) (Entered: 12/13/2004)
ORDER granting 83 Letter request for adjournment of the conference on 12/22/04 to January 12, 2005 at 10:30 a.m. However, given the numerous adjournments and extensions previously granted, this Court expects discovery to proceed and the parties to complete efforts to resolve discovery disputes. Applications with respect to unresolved disputes must be submitted by 1/3/05 and any response by 1/7/05. No extensions will be granted. Signed by Judge Marilyn D. Go on 12/14/04. (Go, Marilyn) (Entered: 12/14/2004)
84 STATUS REPORT by J.W., LBI, EB, AJ, S.M.. (Stewart, Matthew) (Entered: 12/30/2004)
85 NOTICE of Appearance by Matthew S. Stewart on behalf of all plaintiffs (Stewart, Matthew) (Entered: 01/03/2005)
86 NOTICE of Appearance by Sharon Katz on behalf of all plaintiffs (Katz, Sharon) (Entered: 01/03/2005)
87 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding discovery. (Wolpert, Carolyn) (Entered: 01/03/2005)
88 Letter from Elisa Hyman, Esq. to Judge Go Regarding draft agreement between parties. (Attachments: # 1)(Hechtman, Sarah) (Entered: 01/11/2005)
89 ORDER Adjourned to Jan 24,3005 @ 4:30. On ltr. dtd. 1/4/04 from Cynthia Godsoc re: status conf.. Signed by Judge Charles P. Sifton on 1/10/05. (Jackson, Ramona) (Entered: 01/12/2005)
Minute Entry for status conference held before Marilyn D. Go on 1/12/2005. Appearances by counsel of record. Discussions re proposed agreement re communications between plaintiffs' counsel and employees of defendant department. The parties will attempt to finalize and implement terms of current proposed agreement promptly, subject to further assessment once put into practice. Plaintiffs should review discovery requests and advise defendants by 1/14/05 as to any requests that they would be willing to narrow to facilitate a response. By 1/19/05, defendants must state the extent that they will provide documents as to any request and as to requests for which defendants will not provide documents, state the specific basis for any objections. Any motion to compel must be filed by 2/1/05, a response by 2/8/05 and any reply by 2/11/05. Next conference scheduled for Feb. 16, 2005 at 11:00 a.m. (DeVeaux, Yvonne) (Entered: 01/13/2005)
90 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding the Minute Entry for the status conference held on January 12, 2005. (Wolpert, Carolyn) (Entered: 01/13/2005)
ORDER re 90 Letter. The deadline for defendants' submission is 1/20/05. Signed by Judge Marilyn D. Go on 1/14/05. (Go, Marilyn) (Entered: 01/14/2005)
91 Letter from Cynthia Godsoe, Esq. to Honorable Charles P. Sifton Regarding Agreement between the parties. (Attachments: # 1)(Hechtman, Sarah) (Entered: 01/20/2005)
92 MOTION to Compel Defendants to Produce Documents in Response to Plaintiffs' First Request for Production of Documents by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Stewart, Matthew) (Entered: 02/01/2005)
93 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding plaintiffs' motion to compel. (Attachments: # 1 # 2)(Wolpert, Carolyn) (Entered: 02/03/2005)
ORDER granting 93 Letter request extending time for opposition and reply to motion to compel. The Court finds an extension warranted so the parties can attempt to resolve the scope of the class, given the privacy rights of students implicated with the release of documents. However, no further extension will be granted based on this reason

02/15/2005 02/15/2005 02/15/2005 02/15/2005 02/15/2005 02/18/2005 02/23/2005 02/24/2005 02/28/2005
03/02/2005 03/02/2005 03/03/2005 03/09/2005 03/09/2005
03/09/2005

absent consent of the plaintiffs. The next conference is adjourned to Feb. 25, 2005 at 11:30 a.m. . Signed by Judge Marilyn D. Go on 2/3/05. (Go, Marilyn) (Entered: 02/03/2005)
94 NOTICE of Appearance by David J. Bloch on behalf of all plaintiffs (Bloch, David) (Entered: 02/15/2005)
95 MOTION to Amend/Correct 70 Memorandum & Opinion pursuant to Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure by New York City Board of Education, New York City Department of Education, Joel Klein. (Wolpert, Carolyn) (Entered: 02/15/2005)
96 MOTION to Amend/Correct 70 Memorandum & Opinion (Declaration of Carolyn Wolpert) by New York City Board of Education, New York City Department of Education, Joel Klein. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Wolpert, Carolyn) (Entered: 02/15/2005)
97 MOTION to Amend/Correct 70 Memorandum & Opinion (Memorandum of Law) by New York City Board of Education, New York City Department of Education, Joel Klein. (Wolpert, Carolyn) (Entered: 02/15/2005)
98 RESPONSE in Opposition re 92 MOTION to Compel Defendants to Produce Documents in Response to Plaintiffs' First Request for Production of Documents filed by New York City Board of Education, New York City Department of Education, Joel Klein. (Attachments: # 1)(Wolpert, Carolyn) (Entered: 02/15/2005)
99 REPLY to Response to Motion re 92 MOTION to Compel Defendants to Produce Documents in Response to Plaintiffs' First Request for Production of Documents filed by J.W., LBI, EB, AJ, N.T., S.M., B.N.. (Attachments: # 1 Exhibit A)(Stewart, Matthew) (Entered: 02/18/2005)
100 Letter from Carolyn Wolpert to Magistrate Judge Go Regarding plaintiffs' letter dated February 18, 2005. (Wolpert, Carolyn) (Entered: 02/23/2005)
101 Letter from Elisa Hyman to Magistrate Judge Go Regarding Defendants' Letter dated February 23, 2005. (Hyman, Elisa) (Entered: 02/24/2005)
Minute Entry for discovery conference held before Marilyn D. Go on 2/25/2005. Appearances by counsel of record. Parties should continue discussions and defendants must provide information in attempt to facilitate and narrow discovery requests. Next conference scheduled for March 4, 2005 at 1:00 p.m.(Tape #ESR 05/14 567 − 4953.) (DeVeaux, Yvonne) (Entered: 02/28/2005)
102 RESPONSE in Opposition re 95 MOTION to Amend/Correct 70 Memorandum & Opinion pursuant to Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure to Amend the Class filed by all plaintiffs. (Stewart, Matthew) (Entered: 03/02/2005)
103 RESPONSE in Opposition re 95 MOTION to Amend/Correct 70 Memorandum & Opinion pursuant to Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure (Declaration of Matthew Stewart) filed by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Stewart, Matthew) (Entered: 03/02/2005)
104 TRANSCRIPT of Proceedings held on Feb. 25,2005 before Judge Mag. Go.. Court Reporter: Rosalie Lombardi. (Jackson, Ramona) (Entered: 03/03/2005)
Minute Entry for status conference held before Marilyn D. Go on 3/4/2005. Appearances by counsel of record. Next conference scheduled for March 7, 2005 at 11:30 a.m.(Tape #ESR 05/18 0−1044.) (DeVeaux, Yvonne) (Entered: 03/09/2005)
Minute Entry for telephone status conference held before Marilyn D. Go on 3/7/2005. Appearances by counsel of record. Further discussions held one the record re production of documents. Defendants to provide implemented plans by 3/16/05 and statistical data regarding students in SOS schools and District 75 by 3/25/05. Next conference scheduled for March 29, 2005 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 03/09/2005)
105 MOTION to Amend/Correct 70 Memorandum & Opinion (Reply Memorandum of Law) by New York City Board of Education, New York City Department of Education, Joel Klein. (Wolpert, Carolyn) (Entered: 03/09/2005)

03/10/2005 03/11/2005
03/24/2005 03/24/2005 03/25/2005 03/28/2005 03/30/2005
03/31/2005
04/06/2005
04/18/2005 04/18/2005 04/18/2005
04/19/2005 04/19/2005 04/19/2005 05/02/2005 05/02/2005

106 Letter from Elisa Hyman to Magistrate Judge Go Regarding Minute Entry for 3/7/05 Conference. (Hyman, Elisa) (Entered: 03/10/2005)
ORDER re 106 Letter. The letter accurately sets forth other rulings made at the conference. The parties should note that minute entries generally are intended to be a summary of rulings and/or representations made. Should any dispute arise with respect to rulings are made, they should refer to the transcript. (ESR 5/19 5−1380). Signed by Judge Marilyn D. Go on 3/11/05. (Go, Marilyn) (Entered: 03/11/2005)
107 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding today's argument before Judge Sifton. (Wolpert, Carolyn) (Entered: 03/24/2005)
109 Minute Entry for proceedings held before Charles P. Sifton: Motion held on 3/24/2005. (Court Reporter Alan Sherman) (Guzzi, Roseann) (Entered: 03/28/2005)
108 Letter from Matthew Stewart to The Honorable Marilyn Dolan Go Regarding A Response to Defendants' 3/24/05 Letter. (Stewart, Matthew) (Entered: 03/25/2005)
110 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding plaintiffs' letter dated March 25, 2005. (Wolpert, Carolyn) (Entered: 03/28/2005)
Minute Entry for Discovery Hearing held before Marilyn D. Go on 3/29/2005. Appearances by counsel of record. Discovery must proceed pending filing of an amended complaint specifying subclasses. The parties should further attempt to resolve discovery disputes by prioritizing and structuring discovery requests. Defendants must advise plaintiffs by 3/31/05 regarding objections to the narrowed documents requests. Next conference scheduled for April 5, 2005 at 3:00 p.m. (Tape #ESR 05/34 0−2571.) (DeVeaux, Yvonne) (Entered: 03/30/2005)
111 MEMORANDUM AND OPINION Defts motion to AMEND Order dtd. 8/17/04 certifying class is DENIED without prejudice to its renewal. Pltff's are directed to submit a motion to certify subclass on or before 4/18/2005. Signed by Judge Charles P. Sifton on 3/30/05. (Jackson, Ramona)Copies mailed. (Entered: 03/31/2005)
Minute Entry for telephone status conference held before Marilyn D. Go on 4/5/2005. Appearances by Elisa Hyman, Matthew Stewart and Carolyn Wolpert. Defendants have agreed to produce the documents discussed at the last conference. Production must be made on a rolling basis as documents are located. Defendants must send a report by 5/5/05 as to any documents that they cannot produce by that date. Next conference scheduled for May 6, 2005 at 12:00 noon. (DeVeaux, Yvonne) (Entered: 04/06/2005)
112 MOTION to Certify Class / Subclasses by all plaintiffs. (Hyman, Elisa) (Entered: 04/18/2005)
113 MOTION to Certify Class / Subclasses (Memorandum of Law in Support) by all plaintiffs. (Hyman, Elisa) (Entered: 04/18/2005)
114 MOTION to Certify Class / Subclasses (Declaration of Elisa Hyman, Esq. in Support of Motion) by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Hyman, Elisa) (Entered: 04/18/2005)
115 Amended MOTION to Certify Class / Subclasses by all plaintiffs. (Hyman, Elisa) (Entered: 04/19/2005)
116 Amended MOTION to Certify Class / Subclasses by all plaintiffs. (Hyman, Elisa) (Entered: 04/19/2005)
Incorrect Case/Document/Entry Information: Please disregard document #116. This is an exact duplicate of document #115. It has been terminated as a pending motion. (Lee, Tiffeny) (Entered: 04/20/2005)
117 Notice of MOTION to Amend/Correct 70 Memorandum & Opinion (Renewed) by New York City Board of Education, New York City Department of Education, Joel Klein. (Wolpert, Carolyn) (Entered: 05/02/2005)
118 RESPONSE in Opposition re 115 Amended MOTION to Certify Class / Subclasses (Memorandum of Law in Opposition) filed by New York City Board of Education,

05/05/2005 05/09/2005
05/09/2005
05/20/2005 05/23/2005 05/31/2005 05/31/2005 06/01/2005 06/03/2005 06/03/2005 06/07/2005 06/10/2005 06/13/2005 06/24/2005 06/28/2005

New York City Department of Education, Joel Klein. (Attachments: # 1 Appendix 1)(Wolpert, Carolyn) (Entered: 05/02/2005)
119 Letter from Carolyn Wolpert to Magistrate Judge Go Regarding defendants' responses to plaintiffs' narrowed discovery requests. (Wolpert, Carolyn) (Entered: 05/05/2005)
Minute Entry for status confernce held before Marilyn D. Go on 5/6/2005. Appearances by Matthew Stewart, Carolyn Wolpert and Judy Nathan. Defendants must provide remaining response to request no. 7 by 5/13/05 and to requests no. 11 and 20 by 5/20/05. As to remaining requests that defendants have not completed their response, defendants must describe by 5/20/05 the agencies and other sources they have contacted in preparing a response and provide remaining responsive documents by 5/31/05. Next conference scheduled for June 3, 2005 at 11:30 a.m.(Tape #ESR 05/48 1075−2692.) (DeVeaux, Yvonne) (Entered: 05/09/2005)
120 REPLY to Response to Motion re 115 Amended MOTION to Certify Class / Subclasses, 117 Notice of MOTION to Amend/Correct 70 Memorandum & Opinion (Renewed) Plaintiffs' Reply Memorandum of Law in Support of their Motion to Certify Subclasses and in Opposition to Defendants' Motion to Amend the Class filed by all plaintiffs. (Hyman, Elisa) (Entered: 05/09/2005)
121 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding defendants' response to plaintiffs' document requests. (Wolpert, Carolyn) (Entered: 05/20/2005)
122 ORDER Oral argument for May 26,2005. On ltr. dtd. 5/16/05 from Carolyn Wolpert.. Ordered by Judge Charles P. Sifton on 5/16/05. (Jackson, Ramona) (Entered: 05/23/2005)
123 ORDER Motion to amend to June 7,2005 @ 4:30. On ltr. dtd. 5/26/05 from Cynthia Godsoe.. Ordered by Judge Charles P. Sifton on 5/25/05. (Jackson, Ramona) (Entered: 05/31/2005)
124 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding defendants' response to plaintiffs' narrowed document requests. (Wolpert, Carolyn) (Entered: 05/31/2005)
NOTICE: Due to a change in Judge Go's scheduled, the status conference originally scheduled for June 3, 2005 has been changed to June 6, 2005 at 2:30 p.m. The parties should confirm this new date and time with each other. (DeVeaux, Yvonne) (Entered: 06/01/2005)
125 Letter from Matthew Stewart of Davis Polk & Wardwell to Judge Go Regarding rescheduling of the status conference currently set for 6/6/05 at 2:30 p.m. to 6/10/05 at 4:00 p.m. (Bloch, David) (Entered: 06/03/2005)
ORDER granting 125 Letter request adjourning conference currently set for 6/6/05 at 2:30 p.m. to 6/10/05 at 4:00 p.m. Ordered by Judge Marilyn D. Go on 6/3/05. (Go, Marilyn) (Entered: 06/03/2005)
126 Minute Entry for proceedings held before Charles P. Sifton : Motions to certify actions heard. Decision RESERVE(Court Reporter Andrijah Dandridge.) (Jackson, Ramona) (Entered: 06/08/2005)
127 TRANSCRIPT of Proceedings held on June 7,2005 before Judge Sifton. Court Reporter: Rosalie Lombardi. (Jackson, Ramona) (Entered: 06/10/2005)
Minute Entry for status conference held before Marilyn D. Go on 6/10/2005. Appearances by Matthew Stewart, David Bloch, Carolyn Wolpert, Teresa Crotty. Next conference scheduled for August 3, 2005 at 11:30 a.m. (Tape #ESR 05/62 0−755.) (DeVeaux, Yvonne) (Entered: 06/13/2005)
128 Letter from Carolyn Wolpert to The Honorable Marilyn Dolan Go Regarding defendants' response to plaintiffs' narrowed document requests. (Wolpert, Carolyn) (Entered: 06/24/2005)
129 TRANSCRIPT of Proceedings held on March 4,2005 before Judge Mag. Go. Court Reporter: Elizabeth Barron. (Jackson, Ramona) (Entered: 06/28/2005)

06/29/2005 06/29/2005 06/29/2005 06/30/2005 08/08/2005 08/11/2005
08/15/2005 09/08/2005 09/09/2005 09/09/2005
09/12/2005 09/13/2005 09/19/2005 09/28/2005

130 TRANSCRIPT of Proceedings held on March 29,2005 before Judge Mag. Go. Court Reporter: Elizabeth Barrone. (Jackson, Ramona) (Entered: 06/29/2005)
131 TRANSCRIPT of Proceedings held on May 6,2005 before Judge Mag. Go. Court Reporter: Elizabeth Barrone. (Jackson, Ramona) (Entered: 06/29/2005)
132 TRANSCRIPT of Proceedings held on March 7,2005 before Judge Mag. Go. Court Reporter: Elizabeth Barrone. (Jackson, Ramona) (Entered: 06/29/2005)
133 MEMORANDUM AND OPINION Motion to amend class definition is granted in part, and the motion to certify subclasses is granted consistent with amended class definition. Ordered by Judge Charles P. Sifton on 6/29/05. (Sifton, Charles) (Entered: 06/30/2005)
134 Letter from Elisa Hyman to Magistrate Go Regarding Confirming Change in Discovery Conference Schedule. (Hyman, Elisa) (Entered: 08/08/2005)
Minute Entry for status conference held before Marilyn D. Go on 8/10/2005. Appearances by Elisa Hyman, Matthew Stewart, Carolyn Wolpert, Thaddeus Hackworth, Theresa Crotty. Defendants must supplement prior responses re expenditures for alternative education of suspected students and provide underlying data re MDRs by 9/9/05. Defendants must provide underlying data for spreadsheets and samples of database by 8/9/05. Prior to depositions re computer data, parties must try to exchange information regarding how data is stored. Parties must attempt to reach agreement re scope of information to be obtained from electronically stored documents. Any motion to compel regarding the deliberative process privilege must be filed by 8/15/05, opposing papers are due 9/9/05 and any reply by 9/14/05. Plaintiffs must examine prior requests and reformulate, as appropriate in light of Judge Sifton's recent decision. Defendants must provide their general objections regarding the scope of requests within two weeks after requests are made sent and all specific options within 30 days of requests. Next conference scheduled for October 18, 2005 at 2:00 p.m.(Tape #ESR 05/86 0−end (incomplete) (DeVeaux, Yvonne) (Entered: 08/11/2005)
135 Letter MOTION to Compel Production of Documents Withheld on Grounds of Privilege by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Stewart, Matthew) (Entered: 08/15/2005)
136 Letter from Carolyn Wolpert to Magistrate Judge Go Regarding extension of time for defendants to supplement prior responses to plaintiffs' narrowed document requests. (Wolpert, Carolyn) (Entered: 09/08/2005)
ENDORSED ORDER: 136 Letter request for extension to 9/30/05 to complete supplementation of responses granted. Ordered by Judge Marilyn D. Go on 9/9/05. (Go, Marilyn) (Entered: 09/09/2005)
137 RESPONSE in Opposition re 135 Letter MOTION to Compel Production of Documents Withheld on Grounds of Privilege filed by New York City Board of Education, New York City Department of Education, Joel Klein. (Attachments: # 1 Exhibit Declaration of Michele Cahill# 2 Exhibit Declaration of Linda Wernikoff# 3 Exhibit Declaration of Rose Albanese−DePinto# 4 Exhibit Declaration of Michael Best# 5 Exhibit Mazzella v. RCA Global Communications, Inc.# 6 Exhibit Turkmen v. Ashcroft# 7 Exhibit A.I.A. Holdings, S.A. v. Lehman Brothers, Inc.)(Wolpert, Carolyn) (Entered: 09/09/2005)
138 Letter from Matthew Stewart to Judge Merilyn Go Regarding Extension of Time to File Reply to Defendants' Opposition to Plaintiffs' Motion to Compel. (Stewart, Matthew) (Entered: 09/12/2005)
ORDER: 138 Letter request to extend time to 9/19/05 to file a reply to Defendants' Opposition to Plaintiffs' Motion to Compel is granted. Ordered by Judge Marilyn D. Go on 9/13/05. (Go, Marilyn) (Entered: 09/13/2005)
139 Letter from Matthew S. Stewart to Judge Go Regarding Production of Documents by Defendants. (Stewart, Matthew) (Entered: 09/19/2005)
NOTICE: The time for the conference scheduled for October 18, 2005 has been changed to 3:00 p.m. instead of 2:00 p.m. All counsel should confirm with each other that all necessary participants are aware of this time change. (DeVeaux, Yvonne)

10/04/2005 10/14/2005 10/14/2005 11/02/2005 11/03/2005 11/03/2005 11/15/2005 12/01/2005 12/02/2005
01/13/2006
02/22/2006
02/23/2006 05/15/2006

(Entered: 09/28/2005)
ORDER re 135 Letter MOTION to Compel Production of Documents Withheld on Grounds of Privilege. Defendants are directed to submit the documents at issue to this Court for in camera inspection. Ordered by Judge Marilyn D. Go on 10/4/05. (Go, Marilyn) (Entered: 10/04/2005)
140 Letter from Matthew Stewart to The Honorable Marilyn D. Go Regarding adjournment of the conference schedule October 18, 2005 at 3:00 p.m. to the week of November 14, 2005. (Stewart, Matthew) (Entered: 10/14/2005)
ORDER endorsed on 140 Letter dated Oct. 14, 2005. The next conference is adjourned to Nov. 18, 2005 at 12:00 p.m. Ordered by Judge Marilyn D. Go on 10/14/05. (Go, Marilyn) (Entered: 10/14/2005)
141 Letter from Lisa Grumet to Magistrate Judge Go Regarding request that conference date be changed from 11/18/05 to 11/17/05. (Grumet, Lisa) (Entered: 11/02/2005)
ORDER re 141 Letter. The conference is moved to Nov. 17, 2005 at 3:00 p.m. Ordered by Judge Marilyn D. Go on 11/3/05. (Go, Marilyn) (Entered: 11/03/2005)
Email Notification Test − DO NOT REPLY (Glenn, Marilyn) (Entered: 11/03/2005)
NOTICE: The conference is adjourned until December 1, 2005 at 3:00 p.m. The parties should confirm this new date and time with each other. (DeVeaux, Yvonne) (Entered: 11/15/2005)
142 ORDER granting 135 Motion to Compel. Ordered by JudgeMarilyn D. Go on 12/1/05. (Proujansky, Josh) (Entered: 12/01/2005)
Minute Entry for status conference held before Marilyn D. Go on 12/1/2005.Appearances by Elisa Hyman, Matthew Stewart, Cynthia Godsoe, Lisa Grumet, Theresa Crotty. Defendants must promptly respond to pending discovery requests on a rolling basis and complete production no later than 12/30/05. Defendants must produce the documents that are the subject to the motion to compel by 12/12/05, unless they give notice that they intend to object to the order granting the motion. Until further ruling by the Court, counsel for plaintiffs must maintain the confidentiality of documents and may not disclose them to any person except as may be necessary in connection with this litigation. Within one week after receipt of the documents, plaintiffs must respond to defendants' request for a protective order and defendants' reply must be filed two days later. Next conference scheduled for Jan. 11, 2006 at 11:30 a.m. (Tape #ESR 05/116 5−1747.) (DeVeaux, Yvonne) (Entered: 12/02/2005)
Minute Entry for status conference held before Marilyn D. Go on 1/11/2006. Appearances by Elisa Hyman, Sharon Katz, Lisa Grumet and Theresa Crotty. Defendants will be providing a letter by 1/17/06 regarding the completion of production previously ordered. The parties should will work a case management plan to present to the Court. A final discovery schedule will be set at the next conference scheduled for Feb. 2, 2006 at 10:00 a.m.NOTICE: Effective January 23, 2006,Judge Go's Chambers will be in Room 1214 S in the new wing of the Courthouse. Her courtroom will be 11C, the telephone number for Chambers will be 718−613−2550 and the fax number will be 718−613−2555. Unless otherwise advised, the parties should first report to Chambers for any scheduled conference. (DeVeaux, Yvonne) (Entered: 01/13/2006)
Minute Entry for status conference held before Marilyn D. Go on 2/22/2006. Appearances by counsel of record, Damali Taylor, Elizabeth Crotty, Thaddeus Hackworth. Case management plan discussed and final discovery schedule set. Next conference scheduled for July 11, 2006 at 2:00 p.m. The parties must be prepared to discuss settlement at the next conference and should call for an earlier date if they are ready to engage in discussions sooner. (DeVeaux, Yvonne) (Entered: 02/22/2006)
143 CASE MANAGEMENT ORDER (see document). Ordered by Judge Marilyn D. Go on 2/22/06. (Jackson, Ramona) (Entered: 02/23/2006)
144 MOTION for Extension of Time to Complete Discovery and Reschedule the Settlement Conference for an Earlier Date in June by all plaintiffs. (Stewart, Matthew) (Entered: 05/15/2006)

05/15/2006 06/19/2006 06/28/2006 06/28/2006 07/24/2006 08/03/2006
08/30/2006 08/30/2006 09/01/2006 09/01/2006 09/06/2006
09/08/2006 09/11/2006 10/06/2006
10/27/2006

ORDER granting 144 Motion for Extension of Time to Complete Discovery. A new schedule will be discussed following a settlement conference to be held on June 6, 2006 at 9:30 a.m. Ordered by JudgeMarilyn D. Go on 5/15/06. (Go, Marilyn) (Entered: 05/15/2006)
Minute Entry for settlement conference held before Marilyn D. Go on 6/19/2006. Settlement discussions held. Next conference scheduled for June 28, 2006 at 2:00 p.m. Please note the conference will be held at 2:00 p.m. instead of 10:30 a.m. (DeVeaux, Yvonne) (Entered: 06/19/2006)
145 Letter Confirming Change of Conference Time by EB. (Hyman, Elisa) (Entered: 06/28/2006)
Minute Entry for proceedings held before Marilyn D. Go : Settlement Conference held on 6/28/2006. Further discussions held. Next conference scheduled for July 25, 2006 at 3:30 p.m. (Go, Marilyn) (Entered: 06/28/2006)
146 Letter Confirming Adjournment of Conference by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 07/24/2006)
Minute Entry for settlement conference held before Marilyn D. Go on 8/2/2006. Settlement discussions held. Although discussions are continuing, discovery must proceed. If the parties are not able to resolve their disputes over pending requests, they should file discovery letters by 8/29/06. Next conference scheduled for August 29, 2006 at 3:00 p.m. A further conference to discuss settlement will be held on Sept. 5, 2006 at 4:30 p.m. (DeVeaux, Yvonne) (Entered: 08/03/2006)
147 Joint MOTION to Adjourn Conference and Treat September 5, 2006 Conference as a Discovery Conference by all defendants. (Foley, Eamonn) (Entered: 08/30/2006)
ORDER granting 147 Motion to Adjourn Discovery Conference to 9/5/06 at 4:30 p.m. Ordered by JudgeMarilyn D. Go on 8/30/06. (Go, Marilyn) (Entered: 08/30/2006)
148 Letter Regarding Outstanding Discovery Disputes by J.W., LBI, EB, AJ, S.M.. (Katz, Sharon) (Entered: 09/01/2006)
149 Letter in Advance of September 5, 2006, Discovery Conference by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 09/01/2006)
Minute Entry for discovery conference held before Marilyn D. Go on 9/5/2006. Appearances by counsel of record. The parties having been discussing a resolution of current discovery issues and must submit a proposed schedule for court approval by 9/8/06. The parties should provide the Court by 9/29/06 a statement or other submissions regarding relevant law affecting settlement issues.Next settlement conference scheduled for Oct. 5, 2006 at 2:00 p.m. (DeVeaux, Yvonne) Modified on 9/6/2006 (DeVeaux, Yvonne). (Entered: 09/06/2006)
150 Proposed Scheduling Order for Interim Discovery Schedule by EB. (Attachments: # 1)(Morehead, Shawn) (Entered: 09/08/2006)
ORDER: the 150 Proposed Interim Discovery Order setting deadlines for discovery responses is approved. Ordered by Judge Marilyn D. Go on 9/11/06. (Go, Marilyn) (Entered: 09/11/2006)
Minute Entry for settlement conference held before Marilyn D. Go on 10/5/2006. Appearances by Elisa Hyman, Shawn Moorehead, Eamonn Foley, Teresa Crotty, Judy Nathan, Janice Silverberg. Further settlement discussions held. The parties should be working on facilitating exchange of information re new suspension centers. Next conference scheduled for Oct. 26, 2006 at 2:00 p.m. (DeVeaux, Yvonne) (Entered: 10/06/2006)
Minute Entry for settlement conference held before Marilyn D. Go on 10/26/2006. Appearances by Shawn Moorehead, Jen Barnett, counsel of record for defendants. Settlement discussions held. Defendants must provide an outline of proposed settlement terms by 11/29/06 and meet with plaintiffs prior to 12/12/06. The parties should meet to exchange information re suspension centers before proceeding in formal discovery on this issue. Discovery on other issues may proceed notwithstanding

11/28/2006 11/28/2006 12/01/2006 12/01/2006 12/14/2006
12/15/2006 01/11/2007 01/11/2007 01/19/2007 01/19/2007 01/31/2007
02/20/2007 02/20/2007

settlement discussions. The deadline set in Item 4 of the proposed scheduling order (ct. doc. 150) approved by the Court is extended to 11/27/06. Next conference scheduled for Dec. 14, 2006 at 2:00 p.m. (DeVeaux, Yvonne) (Entered: 10/27/2006)
151 Letter Requesting Extension of Defendants' Time to Provide Outline of Proposed Settlement Terms to Plaintiffs by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 11/28/2006)
ORDER endorsed on 151 Letter filed by defendants. Defendants' time to provide an outline of proposed settlement terms is extended to 12/7/06. Ordered by Judge Marilyn D. Go on 11/28/06. (Go, Marilyn) (Entered: 11/28/2006)
152 Letter Requesting Extension of Deadline for Compliance with Paragraph 4 of Interim Discovery Order by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 12/01/2006)
ORDER endorsed on 152 Letter filed by defendants. The deadline for compliance with Paragraph 4 of Interim Discovery Order is extended to 12/8/06. Ordered by Judge Marilyn D. Go on 12/1/06. (Go, Marilyn) (Entered: 12/01/2006)
Minute Entry: Status Conference held on 12/14/2006 before MJ Marilyn D. Go. Appearances by counsel of record. Settlement discussions are progressing. Defendants must respond to plaintiffs' outstanding document requests on a rolling basis, with objections and production of all documents completed by 12/29/06, except that production in response to requests for weekly data that needs to be obtained from computers may be completed by 1/26/07. Defendants' privilege log must be produced by 1/4/07. Any motion to compel must be filed by 1/12/07 and opposing papers must be filed by 1/17/07. Next conference scheduled for Jan. 19, 2007 at 2:00 p.m. (Capobianco, Jean) Modified on 12/15/2006 (Capobianco, Jean). Corrected minute entry. (Entered: 12/15/2006)
NOTICE re Minute Entry for Status Conference on 12/14/06. The minute entry was modified to state that Defendants' privilege log must be produced by 1/4/07. (Go, Marilyn) (Entered: 12/15/2006)
153 First MOTION to Adjourn Conference by all plaintiffs. (Morehead, Shawn) (Entered: 01/11/2007)
ORDER granting 153 Motion to Adjourn Conference. The conference will be held on Jan. 30, 2007 at 3:00 p.m. Ordered by Judge Marilyn D. Go on 1/11/07. (Go, Marilyn) (Entered: 01/11/2007)
154 Second MOTION for Extension of Time to File motion to compel by all plaintiffs. (Morehead, Shawn) (Entered: 01/19/2007)
ORDER granting 154 Motion for Extension of Time to File. A new schedule for any motion to compel will be set at the next conference on 1/30/07. Ordered by Judge Marilyn D. Go on 1/19/07. (Go, Marilyn) (Entered: 01/19/2007)
Minute Entry for status conference held before Marilyn D. Go on 1/30/2007 Appearances by counsel of record. Settlement discussions held. The parties will continue meeting regularly to discuss other settlement issues. The parties must promptly confer on the terms of site visits by plaintiffs' expert, who must be identified. Defendants must provide a privilege log of documents withheld by 2/6/07. Similar documents to which privilege is asserted need not be separately listed so long as sufficient information is given to identify the basis for the privilege, the number of documents and the reason the documents are of the same nature. Any motion to compel must be filed by 2/20/07, opposition papers by 3/16/07 and a reply by 3/23/07. Next conference scheduled for March 29, 2007 at 2:30 p.m. (DeVeaux, Yvonne) (Entered: 01/31/2007)
155 Letter on behalf of all parties to request modification of the briefing schedule on plaintiffs' motion to compel by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 02/20/2007)
ORDER endorsed on 155 Letter by counsel for defendants. The application to extend the time for filing any motion to compel to 3/5/07 is granted. Ordered by Judge Marilyn D. Go on 2/20/07. (Go, Marilyn) (Entered: 02/20/2007)

03/05/2007 03/16/2007
03/16/2007
03/16/2007
03/23/2007 03/27/2007 03/29/2007 03/29/2007 03/30/2007
03/31/2007 04/02/2007 04/02/2007 04/02/2007 04/05/2007

156 Notice of MOTION to Compel Production of Documents by all plaintiffs. (Attachments: # 1 Memorandum of Law# 2 Declaration in Support# 3 Exhibit A to Declaration# 4 Exhibit B to Declaration# 5 Exhibit C to Declaration# 6 Exhibit D to Declaration) (Morehead, Shawn) (Entered: 03/05/2007)
157 RESPONSE to Motion re 156 Notice of MOTION to Compel Production of Documents Declaration of Shane Santo Mulhern with Exhibits A and B in Opposition to Plaintiffs' Motion to Compel filed by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 03/16/2007)
158 RESPONSE to Motion re 156 Notice of MOTION to Compel Production of Documents Declaration of Theresa Crotty in Opposition to Plaintiffs' Motion to Compel Production of Documents filed by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 03/16/2007)
159 RESPONSE to Motion re 156 Notice of MOTION to Compel Production of Documents Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion to Compel Production of Documents filed by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 03/16/2007)
160 REPLY to Response to Motion re 156 Notice of MOTION to Compel Production of Documents filed by all plaintiffs. (Morehead, Shawn) (Entered: 03/23/2007)
161 Letter MOTION for Discovery pursuant to Fed. R. Civ. P. 34 by all plaintiffs. (Attachments: # 1 Exhibit A.1# 2 Exhibit A.2# 3 Exhibit B) (Morehead, Shawn) (Entered: 03/27/2007)
162 NOTICE of Appearance by David Aaron Stier on behalf of all plaintiffs (aty to be noticed) (Stier, David) (Entered: 03/29/2007)
163 Letter In Response to Plaintiffs' March 27, 2007 Letter Concerning Site Inspections by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 03/29/2007)
Minute Entry for Discovery Hearing held before Marilyn D. Go on 3/29/2007. Appearances by Shawn Moorehead, David Stier, Eamonn Foley, Janice Birnbaum, Jane Goldberg. Oral argument heard on motion to compel. Defendants must provide copies of sample surveys for in camera inspection by 3/30/07. They must also insure that the documents withheld on privilege grounds contained in the set of survey materials held by OYDSS do not contain documents other than those in the original set held by OLS by first focusing at the categories of documents for which there are discrepancies in number of pages withheld in each set of documents. Terms of site inspection by plaintiff's expert discussed on the record. Submissions on regarding the requirements for notice that must be given must be filed by 3/2/07. Next conference scheduled for April 5, 2007 at 9:45 a.m. (Tape #ESR 07/03 Backup #6235−end and 07/04 Backup #0−3755.) (DeVeaux, Yvonne) (Entered: 03/30/2007)
164 First MOTION to Substitute Attorney Elisa Hyman with Shawn Morehead by all plaintiffs. (Hyman, Elisa) (Entered: 03/31/2007)
ORDER granting 164 Motion to Substitute Attorney. Attorney Elisa F. Hyman terminated. Ordered by Judge Marilyn D. Go on 4/2/07. (Go, Marilyn) (Entered: 04/02/2007)
165 Letter In Support of Plaintiffs' Proposal for Site Inspections by J.W., LBI, EB, AJ, S.M. (Morehead, Shawn) (Entered: 04/02/2007)
166 Letter in Further Opposition to Plaintiffs' Request for Suspension Site Inspections and Interviews by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 04/02/2007)
Minute Entry for status conference held before Marilyn D. Go on 4/5/2007.Appearances by counsel of record. For reasons stated on the record, the Court grants, in connection with plaintiffs motion to inspect the suspension sites, for plaintiffs' expert to make observations in the classroom, speak to students and to

04/11/2007 04/11/2007
05/02/2007 05/17/2007 05/18/2007 05/18/2007
05/21/2007 05/29/2007 05/31/2007 07/20/2007 07/24/2007

review records of students with IEPs and section 504 Plans, to the extent and subject to the notice discussed. (Tape #FTR: 10:05 − 11:52.) (DeVeaux, Yvonne) (Entered: 04/05/2007)
167 Letter Concerning Site Inspections by J.W., LBI, EB, AJ, S.M. (Attachments: # 1 Exhibit A, FERPA Notice) (Morehead, Shawn) (Entered: 04/11/2007)
ORDER endorsed on 167 Letter filed by plaintiffs. The terms and conditions of the site inspections set forth in the letter are "so ordered." Supplementing the provisions therein, counsel for the plaintiffs and their expert shall also maintain the confidentiality of all "education records," as defined in 20 U.S.C. sec. 1232g(a)(4)(A), obtained and use such records solely for purposes of this litigation. Should any party file any such records or use information contained therein in a filing in this action, all personally identifiable student information and all other information which, in combination, may facilitate identification of a student, such as a student's condition, past disciplinary history, dates of attendance in certain classes, grade and sex, must be redacted or the document filed under seal. The next conference in this case will be held on May 18, 2007 at 10:30 a.m. Ordered by Judge Marilyn D. Go on 4/11/07. (Go, Marilyn) (Entered: 04/11/2007)
168 TRANSCRIPT of Civil Cause for Conference held on 4/5/07 before Judge Marilyn D. Go. Court Reporter: Ruth Ann Hager, TypeWrite Word Processing Service. (Black, Amanda) (Entered: 05/02/2007)
Motions terminated: 161 Letter MOTION for Discovery as per Minute entry dated 4/5/2007. (Abdallah, Fida) (Entered: 05/17/2007)
169 Letter of Clarification Re: May 18, 2007 Court Conference by J.W., LBI, EB, AJ, S.M. (Katz, Sharon) (Entered: 05/18/2007)
Minute Entry for status conference held before Marilyn D. Go on 5/18/2007.Appearances by Shawn Morehead, Sharon Katz, David Stier, Eamonn Foley, Debbie King, Richard Ashe, Jane Goldberg. The parties agree that plaintiffs counsel and their expert will have access to the planning process for restructuring of suspension sites to be implemented next school year. Inspection of new sites will begin Oct. 2007. Until entry of a formal confidentiality order, the parties must maintain the confidentiality of all information obtained from site inspections and the planning discussions and may not use or disclose such information except in connection with this litigation or, in the case of defendants, in connection with the operations of the defendant Department. Defendants waive any objection to use by plaintiffs of their expert in this action based on her participation in the planning discussions. Next conference scheduled for July 23, 2007 at 2:30 p.m. (Tape #FTR 10:54 − 11:16 and 11:18−11:20; ESR 07/05 Backup 2329−3891 and 3891−4054.) (DeVeaux, Yvonne) (Entered: 05/18/2007)
170 Letter Concerning Sets of OLS Surveys Maintained by OLS and OYD by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 05/21/2007)
171 NOTICE of Appearance by Michael Stuart Scheinkman on behalf of all plaintiffs (aty to be noticed) (Scheinkman, Michael) (Entered: 05/29/2007)
172 Letter Setting Forth Parties' Agreement Outlined During May 18, 2007, Confernence by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 05/31/2007)
173 Letter in anticipation of July 23, 2007 conference by J.W., LBI, EB, AJ, S.M. (Morehead, Shawn) (Entered: 07/20/2007)
Minute Entry for settlement conference held before Marilyn D. Go on 7/23/2007. Appearances by counsel of record. Settlement discussions held. The parties must promptly submit a proposed protective order. The discovery issues raised by plaintiffs in counsel's letter dated 7/20/07 will be discussed at a telephone conference on July 30, 2007 at 2:00 p.m. The next settlement conference will be held on August 20, 2007 at 3:30 p.m. (Tape #FTR 5:18−5:39 and 07/B118 4909−6995.) (DeVeaux, Yvonne) (Entered: 07/24/2007)

07/30/2007
07/31/2007 08/02/2007
08/06/2007 08/14/2007 08/16/2007 08/31/2007
09/25/2007 09/26/2007 09/27/2007 10/10/2007 11/09/2007 11/09/2007 11/29/2007

Minute Entry for telephone discovery conference held before Marilyn D. Go on 7/30/2007. Appearances by counsel of record. Defendants must produce hearing office files by 8/10/07 and CSE files by 8/20/07. Counsel for defendants must be prepared to discuss more specifically the timing of production of records currently or recently held by suspension site and home schools, as well as locations that might possess the pertinent records. Next conference scheduled for Aug. 1, 2007 at 1:00 p.m. (by tel) (Tape #ESR 07/14 0−2929.) (DeVeaux, Yvonne) (Entered: 07/30/2007)
174 First MOTION for Protective Order by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 07/31/2007)
Minute Entry for discovery conference held before Marilyn D. Go on 8/2/2007. Appearances by counsel of record. Counsel for defendants reported on the progress in producing student filed. The files from the suspension sites must be produced by 8/20/07. Next conference scheduled for August 31, 2007 at 10:00 a.m. (to discuss settlement and document production) (Tape #ESR 96/4332−5832.) (DeVeaux, Yvonne) (Entered: 08/02/2007)
175 CORRECTED ORDER granting 174 Motion for Protective Order.Ordered by Judge Marilyn D. Go on 8/6/2007. Previous order deleted. Incorrect docket number. (DeVeaux, Yvonne) (Entered: 08/06/2007)
Motions terminated: 156 Notice of MOTION to Compel Production of Documents. See Minute Entry for Discovery Hearing dated 3/30/2007. (Abdallah, Fida) Modified on 8/20/2007: This Motion is no longer terminated. (Abdallah, Fida) (Entered: 08/14/2007)
176 Letter Seeking Clarification of the Court's Electronic Docket Entry Dated 8/14/2007 by J.W., LBI, EB, AJ, S.M. (Katz, Sharon) (Entered: 08/16/2007)
Minute Entry for settlement conference held before Marilyn D. Go on 8/31/2007. Appearances by counsel of record. Defendants must complete production of the requested student files and e−mails by 9/26/07. The e−mails shall be produced on a rolling basis and may be produced without reference to the specific discovery request(s) to which they are responsive, provided that defendants promptly make such designations upon request and confirm the completeness of the production upon conclusion. Production shall be made without waiver of any applicable privilege, in accordance with Fed. R. Civ. P. 26(b)(5)(B), but any subsequent claim of privilege must be made within 15 days after any production. Next conference scheduled for October 10, 2007 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 08/31/2007)
177 Letter MOTION for Extension of Time to Complete Discovery on Consent by New York City Board of Education, New York City Department of Education, Joel Klein. (Foley, Eamonn) (Entered: 09/25/2007)
ORDER granting 177 Motion for Extension of Time to Complete Discovery. Defendants' time to complete production of the requested student files and e−mails is extended to 10/10/07. Ordered by Judge Marilyn D. Go on 9/26/07. (Go, Marilyn) (Entered: 09/26/2007)
178 ORDER denying 156 Motion to Compel. Ordered by Judge Marilyn D. Go on 9/27/07. (Go, Marilyn) (Entered: 09/27/2007)
Minute Entry for settlement conference held before Marilyn D. Go on 10/10/2007.Appearances by counsel of record. Settlement discussions held. Defendants' time to complete production of the requested student files and e−mails is extended to 10/24/07. Next conference scheduled for Nov. 13, 2007 at 4:00 p.m. (by tel) (DeVeaux, Yvonne) (Entered: 10/10/2007)
179 First MOTION to Adjourn Conference on Tuesday, November 13, 2007 by all plaintiffs. (Morehead, Shawn) (Entered: 11/09/2007)
ORDER granting 179 Motion to Adjourn Conference. The conference is adjourned to Nov. 29, 2007 at 9:30 a.m. Ordered by Judge Marilyn D. Go on 11/9/07. (Go, Marilyn) (Entered: 11/09/2007)
Minute Entry for settlement conference held before Magistrate Judge Marilyn D. Go on 11/29/2007. Appearances by Shawn Morehead, Dan Barnett, Sharon Katz, Eamonn

12/18/2007 12/21/2007
01/23/2008 01/23/2008 01/24/2008 02/01/2008 02/08/2008 03/07/2008 03/07/2008 03/07/2008 03/25/2008
04/04/2008
05/09/2008

Foley, Deborah King, Judy Nathan. The parties advised they will engage in further substantive settlement discussions next week and complete inspections of remaining designated sites prior to the next conference scheduled for Dec. 17, 2007 at 3:00 p.m. (by tel). (Park, Jean Hee) (Entered: 11/30/2007)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Telephone Settlement Conference held on 12/17/2007. Appearances by counsel of record. Next conference scheduled for Dec. 20, 2007 at 1:00 p.m. (DeVeaux, Yvonne) (Entered: 12/18/2007)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 12/20/2007. Appearances by Shawn Morehead and Eamonn Foley. Settlement discussions held. Discovery is stayed until the next conference to enable the parties to engage in further discussions. Next conference scheduled for Jan. 24, 2008 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 12/21/2007)
180 Letter Requesting Adjournment of Confernence on Consent by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 01/23/2008)
SCHEDULING ORDER endorsed on 180 Letter filed by defendants. The settlement conference is adjourned to Feb. 7, 2008 at 11:00 a.m. Ordered by Magistrate Judge Marilyn D. Go on 1/23/08. (Go, Marilyn) (Entered: 01/23/2008)
181 NOTICE of Appearance by Alexis Gena Stone, 096 on behalf of J.W., LBI, EB, AJ, S.M. (aty to be noticed) (Stone, Alexis) (Entered: 01/24/2008)
182 NOTICE of Appearance by Abigail M. Kagle on behalf of J.W., LBI, EB, AJ, N.T., S.M., B.N. (aty to be noticed) (Kagle, Abigail) (Entered: 02/01/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 2/7/2008. Appearances by counsel of record and officials of the DOE. Settlement discussions held. Next conference scheduled for March 10, 2008 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 02/08/2008)
183 Letter Jointly Requesting Adjournment of Conference by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 03/07/2008)
ORDER: the 183 Letter application for an adjournment of the settlement conference to March 20, 2008 at 10:00 a.m. is granted. Ordered by Magistrate Judge Marilyn D. Go on 3/7/08. (Go, Marilyn) (Entered: 03/07/2008)
ORDER: The settlement conference on March 20, 2008 will be held at 2:00 p.m. Ordered by Magistrate Judge Marilyn D. Go on 3/7/08. (Go, Marilyn) (Entered: 03/07/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 3/20/2008. Appearances by counsel of record. Further settlement discussions held. In advance of the next conference, defendants must provide proposal re transfer & discharge students and informal exclusion subclass; respond to terms discussed re MDR; and report on interim measures re SOS. Next conference scheduled for April 3, 2008 at 2:00 p.m. (DeVeaux, Yvonne) (Entered: 03/25/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Discovery Hearing and Settlement Conference held on 4/3/2008. Appearances by Shawn Moorehead, Sharon Katz, Jennifer Barnett, Eamonn Foley, Janice Birnbaum, Debbie King. Further settlement discussions held. Discovery regarding SOS sites may proceed, including site inspections. Defendants' responses to discovery requests shall be due the later of 45 days after service or May 30, 2008. Next conference scheduled for May 8, 2008 at 11:30 a.m. (DeVeaux, Yvonne) (Entered: 04/04/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 5/8/2008. Appearances by Sharon Katz, Jennifer Barnett, Alexis Stone, Eamonn Foley, Judy Nathan, Debbie King, Tracey Cooney, Shavon Brooks. Settlement discussions held. Next conference scheduled for June 19, 2008 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 05/09/2008)

05/29/2008 05/29/2008 06/23/2008 07/24/2008
08/01/2008 08/21/2008 09/11/2008
09/25/2008
10/08/2008 10/14/2008 10/15/2008 10/15/2008 10/24/2008

184 Letter Requesting Extension of Defendants' Time to Respond to Plaintiffs' Document Request Regarding One Year Sites by New York City Board of Education, New York City Department of Education, Joel Klein (Foley, Eamonn) (Entered: 05/29/2008)
ORDER granting defendants' letter request. Defendants' time to serve objections to plaintiffs' document requests is extended until 6/6/08 and to produce documents until 6/16/08. Ordered by Magistrate Judge Marilyn D. Go on 05/29/08. (Proujansky, Josh) (Entered: 05/29/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 6/19/2008. Appearances by Sharon Katz, Jennifer Barnett, Alexis Stone, Eamonn Foley, Judy Nathan. Further settlement discussions held. Next conference scheduled for July 24, 2008 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 06/23/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 7/24/2008. Appearances by Sharon Katz, Shawn Moorehead, Alexis Stone, Miranda Johnson, Eamonn Foley, Judy Nathan, Debbie King. Settlement discussions held. Parties are to meet further but confer on possible deposition dates in late August. Next conference scheduled for Aug. 21, 2008 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 07/24/2008)
185 Letter to the Clerk of the Court by J.W., LBI, EB, AJ, S.M. (Kagle, Abigail) (Entered: 08/01/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 8/21/2008. Appearances by Shawn Moorehead, Alexis Stone, Miranda Johnson, Eamonn Foley, Janice Birnbaum. Parties will work on drafting an MOU with respect to SOS sites by 9/5/08. Next conference scheduled for Sept. 11, 2008 at 11:00 a.m. (DeVeaux, Yvonne) (Entered: 08/21/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 9/11/2008. Appearances by Sharon Katz, Shawn Moorehead, Alexis Stone, Miranda Johnson, Eamonn Foley, Debbie King, Tracey Cooney, Chavon Brooks. Counsel reported that they had reached a agreement on the terms of a forbearance agreement with respect SOS schools to be embodied in a memorandum of understanding which must be submitted to the court for review on 9/24/08. Next conference scheduled for Sept. 25, 2008 at 2:30 p.m. A further settlement conference will be held regarding other issues on Oct. 15, 2008 at 11:30 a.m. Discovery Hear (DeVeaux, Yvonne) (Entered: 09/11/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 9/25/2008. Appearances by Shawn Morehead, Sharon Katz, David Stier, Eamonn Foley, Judy Nathan, Chevon Brooks. Counsel signed a memorandum of understanding to forego litigation with respect to Long Term Suspension Sites for the 2008−2009 school year and put on the record their agreement to discuss and enter into an agreement regarding the appropriate protocol for the inspections contemplated in the agreement and for notices to be sent to students. (Tape #FTR: 2:59 − 3:02; ESR: B08/26 311−446.) (DeVeaux, Yvonne) (Entered: 09/25/2008)
186 MEMORANDUM of Understanding between EB, LB, 1, HG, KSG, AJ, IP, SM, JW, DR, on behalf of themselves and all other similarly situated and New York City Department of Education, New York City Board of Education, and Joel Klien. Ordered by Senior Judge Charles P. Sifton on 9/30/2008. (Abdallah, Fida) (Entered: 10/08/2008)
187 MOTION to Adjourn Conference by J.W., LBI, EB, AJ, N.T., S.M., B.N.. (Stone, Alexis) (Entered: 10/14/2008)
188 Joint MOTION to Adjourn Conference and Confirmation of Date by J.W., LBI, EB, AJ, N.T., S.M., B.N.. (Stier, David) (Entered: 10/15/2008)
ORDER granting 187 and granting 188 Letter Motion to Adjourn Conference to October 23, 2008 at 3:00 p.m. Ordered by Magistrate Judge Marilyn D. Go on 10/15/08. (DeVeaux, Yvonne) (Entered: 10/15/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 10/23/2008. Appearances by Shawn Morehead, Sharon Katz,

10/24/2008 11/13/2008
11/13/2008 12/11/2008
01/12/2009 01/12/2009 01/21/2009 01/21/2009 02/04/2009
02/10/2009 02/12/2009 02/16/2009 03/11/2009 03/12/2009
04/22/2009

Alexis Stone, Eamonn Foley, Judy Nathan. Next conference scheduled for Nov. 13, 2008 at 11:30 a.m. (DeVeaux, Yvonne) (Entered: 10/24/2008)
189 STIPULATION And Agreement Site Inspection Procedures by J.W., LBI, EB, AJ, S.M. (Attachments: # 1 Exhibit, # 2 Exhibit) (Stier, David) (Entered: 10/24/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 11/13/2008. Appearances by Shawn Morehead, Sharon Katz, Rebecca Shore, Eamonn Foley, Judy Nathan, Jeff Dantowitz. Further settlement discussions held. Next conference scheduled for Dec. 10, 2008 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 11/13/2008)
ORDER: The 189 Stipulation And Agreement regarding site inspection procedures to be conducted in conjunction with a memorandum of understanding filed herein is "so ordered."f Ordered by Magistrate Judge Marilyn D. Go on 11/13/08. (Go, Marilyn) (Entered: 11/13/2008)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 12/10/2008. Appearances by Shawn Moorehead, Sharon Katz, Rebecca Shore, Eamonn Foley, Judy Nathan, Janice Birnbaum, Chavon Brooks. Next conference scheduled for Jan. 13, 2009 at 11:00 a.m. (DeVeaux, Yvonne) (Entered: 12/11/2008)
190 Joint MOTION to Adjourn Conference by New York City Board of Education, New York City Department of Education, Joel Klein. (Birnbaum, Janice) (Entered: 01/12/2009)
ORDER granting 190 Motion to Adjourn Conference to 1/22/09 at 3:30 p.m. Ordered by Magistrate Judge Marilyn D. Go on 1/12/09. (Go, Marilyn) (Entered: 01/12/2009)
191 Joint MOTION to Adjourn Conference by New York City Board of Education, New York City Department of Education, Joel Klein. (Birnbaum, Janice) (Entered: 01/21/2009)
ORDER granting 191 Motion to Adjourn Conference to Feb 3, 2009 at 2:30 p.m. Ordered by Magistrate Judge Marilyn D. Go on 1/21/2009. (Go, Marilyn) (Entered: 01/21/2009)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 2/3/2009. Appearances by Shawn Morehead, Rebecca Shore, Matthew Lenaghan, Janice Birnbaum, Chevon Brooks. Settlement discussions held. Next conference scheduled for March 10, 2009 at 2:30 p.m. (DeVeaux, Yvonne) (Entered: 02/04/2009)
192 MOTION to Substitute Attorney Rebecca Shore for Shawn Morehead by J.W., LBI, EB, AJ, S.M.. (Morehead, Shawn) (Entered: 02/10/2009)
193 NOTICE of Appearance by Chevon Andre Brooks on behalf of all defendants (aty to be noticed) (Brooks, Chevon) (Entered: 02/12/2009)
ORDER granting 192 Motion to Substitute Attorney. Added attorney Rebecca Caren Shore for J.W., LBI, EB, AJ and S.M. Attorney Alexis Gena Stone, Shawn V. Morehead and Michael Stuart Scheinkman terminated. Ordered by Magistrate Judge Marilyn D. Go on 2/16/2009. (Go, Marilyn) (Entered: 02/16/2009)
194 NOTICE of Appearance by Michael Stuart Scheinkman on behalf of all plaintiffs (notification declined or already on case) (Scheinkman, Michael) (Entered: 03/11/2009)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 3/10/2009. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Janice Birnbaum, Judy Nathan, Deborah King, Chevon Brooks. Next settlement conference scheduled for April 23, 2009 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 03/12/2009)
195 MOTION to Adjourn Conference by New York City Board of Education, New York City Department of Education, Joel Klein. (Brooks, Chevon) (Entered: 04/22/2009)

04/22/2009 05/13/2009 06/02/2009 06/02/2009 06/19/2009
06/23/2009 07/24/2009 09/10/2009 09/22/2009
10/26/2009 11/12/2009
11/24/2009

ORDER granting 195 Motion to Adjourn Conference to May 13, 2009 at 11:00 a.m. Future requests for an adjournment must be made on at least 48 hours' notice. Ordered by Magistrate Judge Marilyn D. Go on 4/22/2009. (Go, Marilyn) (Entered: 04/22/2009)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Settlement Conference held on 5/13/2009. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, David Stier, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debbie King for defendants. Settlement discussions are progressing. Next conference scheduled for June 4, 2009 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 05/13/2009)
196 First MOTION to Adjourn Conference of June 4, 2009 by New York City Board of Education, New York City Department of Education, Joel Klein. (Birnbaum, Janice) (Entered: 06/02/2009)
ORDER granting 196 Motion to Adjourn Conference. The settlement conference is adjourned to June 18, 2009 at 3:30 p.m. Ordered by Magistrate Judge Marilyn D. Go on 6/2/2009. (DeVeaux, Yvonne) (Entered: 06/02/2009)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go.Settlement Conference held on 6/18/2009. Appearances by Rebecca Shore, Sharon Katz, David Stier, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Settlement discussions are progressing. The parties will be working on a stipulation to extend the term of the MOU previously entered and for site inspections. Next settlement conference scheduled for July 23, 2009 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 06/19/2009)
197 NOTICE of Change of Firm Name by Michael Stuart Scheinkman (Scheinkman, Michael) (Entered: 06/23/2009)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go.Settlement Conference held on 7/23/2009 Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Next settlement conference scheduled for Sept. 10, 2009 at 3:30 p.m. (DeVeaux, Yvonne) (Entered: 07/24/2009)
SCHEDULING ORDER: the settlement conference scheduled for 9/10/09 is adjourned to 9/21/09 at 10:00 a.m. Ordered by Magistrate Judge Marilyn D. Go on 9/10/2009. (Proujansky, Josh) (Entered: 09/10/2009)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. GoSettlement Conference held on 9/21/2009. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Deborah King for defendants. Counsel for the parties advise that settlement discussions are progressing and are directed to begin drafting an agreement incorporating all negotiated terms into one document. The parties are close to agreement on the terms on a new Memorandum of Understanding concerning Long Term Suspension Sites and discovery herein and agreed to extend the prior MOU, which will be expiring soon, to Oct. 21, 2009. Next settlement conference scheduled for Nov. 10, 2009 at 10:00 a.m. (DeVeaux, Yvonne) (Entered: 09/22/2009)
198 Joint MOTION to Continue the memorandum of understanding by Joel Klein, New York City Board of Education, New York City Department of Education. (Birnbaum, Janice) (Entered: 10/26/2009)
Minute Order for proceedings held before Magistrate Judge Marilyn D. Go. Settlement conference and Motion Hearing held on 11/10/2009 granting 198 Motion to Continue. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan, David Stier for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Discussions held regarding extension of the memorandum of understanding ("MOU") 186 , as well as settlement of the claims. With the consent of the parties, the motion for an extension of the MOU 198 is granted to November 30, 2009. Next settlement conference scheduled for Jan. 5, 2010 at 2:00 p.m. (DeVeaux, Yvonne) (Entered: 11/12/2009)
Judge Eric N. Vitaliano added. Senior−Judge Charles P. Sifton no longer assigned to case. (Davis, Kimberly) (Entered: 11/24/2009)

12/09/2009 12/09/2009 01/06/2010
01/08/2010 01/15/2010 02/22/2010 03/12/2010
04/29/2010
05/19/2010 06/17/2010 07/14/2010
08/17/2010

199 MOTION for Extension of Time to File MOU Extension by Joel Klein, New York City Board of Education, New York City Department of Education. (Birnbaum, Janice) (Entered: 12/09/2009)
ORDER granting 199 Motion for Extension of Time to File. The MOU is extended to 12/23/09. Ordered by Magistrate Judge Marilyn D. Go on 12/9/2009. (Go, Marilyn) (Entered: 12/09/2009)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. GoSettlement Conference held on 1/5/2010. Appearances by Rebecca Shore, Michael Scheinkman for plaintiffs; Janice Birnbaum, Judy Nathan, Sarah Sandelius for defendants. E Counsel submitted an executed Memorandum of Understanding for court approval. Defendants shall promptly forward revised sections of a proposed stipulation as they are completed. Next settlement conference scheduled for Feb. 23, 2010 at 11:00 a.m. (DeVeaux, Yvonne) (Entered: 01/06/2010)
SCHEDULING ORDER: Due to a change in Judge Go's schedule, the time for the conference scheduled for 2/23/10 has been changed from 11:00 a.m. to 11:30 a.m. The parties should confirm the change with each other. Ordered by Magistrate Judge Marilyn D. Go on 1/8/2010. (DeVeaux, Yvonne) (Entered: 01/08/2010)
200 MEMORANDUM OF UNDERSTANDING. Ordered by Judge Eric N. Vitaliano on 1/6/2010. (Attachments: # 1 Exhibit A) (Brucella, Michelle) (Entered: 01/15/2010)
SCHEDULING ORDER: at the request of the parties, the next conference is adjourned to 3/11/10 at 1:30 p.m. Ordered by Magistrate Judge Marilyn D. Go on 2/22/2010. (Proujansky, Josh) (Entered: 02/22/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go.Settlement Conference held on 3/11/2010. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debbie King for defendants. Prior to the next conference scheduled for April 28, 2010 at 10:00 a.m., the parties shall forward drafts of new sections promptly upon completion and defendants shall send their revisions/response to the main draft to plaintiffs by next week. (DeVeaux, Yvonne) (Entered: 03/12/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go. Settlement Conference held on 4/29/2010. Appearances by Rebecca Shore, Sharon Katz, Matthew Lenaghan, David Stier for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. The parties shall be meeting to try to resolve issues in the proposed stipulation. Defendants should provide further responses to draft in advance of that meeting. Next conference scheduled for May 18, 2010 at 10:00 a.m. (Wallace, Saundra) (Entered: 04/29/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go. Settlement Conference held on 5/19/2010. Appearances by Rebecca Shore, Sharon Katz, Matthew Lenaghan, David Stier for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Next settlement conference scheduled for June 17, 2010 at 9:30 a.m. (Wallace, Saundra) (Entered: 05/19/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go. Settlement Conference held on 6/17/2010. Appearances by Rebecca Shore, Sharon Katz, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Settlement conference continued to July 13, 2010 at 10:00 a.m. (Wallace, Saundra) (Entered: 06/17/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go. Discovery Hearing held on 7/13/2010, Settlement Conference held on 7/13/2010. Appearances by Rebecca Shore, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. By 8/19/20, defendants must serve the draft of the entire settlement agreement, incorporating all provisions, even provisions that are still being discussed. Next conference scheduled for Sept. 28, 2010 at 10:00 a.m. (Wallace, Saundra) (Entered: 07/14/2010)
201 Letter Application to extend time to serve entire draft settlement proposal by Joel Klein, New York City Board of Education, New York City Department of Education (Birnbaum, Janice) (Entered: 08/17/2010)

08/18/2010 08/18/2010
09/28/2010 10/07/2010 10/13/2010 10/13/2010 10/14/2010 11/03/2010 12/01/2010

202 Letter in Response to Defendants' Letter to Extend Time to Serve Entire Draft Settlement Proposal by EB (Scheinkman, Michael) (Entered: 08/18/2010)
ORDER re 201 Letter filed by Joel Klein, New York City Department of Education, New York City Board of Education. The Court reluctantly grants defendants' request for an extension until Sept. 16, 2010 to provide plaintiffs with a draft of the complete settlement agreement. However, the Court does not understand defendants' claimed inability to determine whether the defendants will be including provisions that are different from "the matters previously agreed to." Lengthy negotiations that have taken place over the past few years and, based on this Court's understanding, drafts of provisions regarding various components of the settlement have been exchanged. It is understandable that some of the provisions may need to be modified to conform with recent changes in the names, structure or procedures of the D.O.E. On the other hand, some changes may be more substantive, such as elimination of certain provisions reflected in the prior drafts because of defendants' view that such terms are no longer necessary, as discussed at the last settlement conference. This Court considers such changes to be changes in the defendants' position, whatever the defendants' reason may be. While the Court will not condition the extension of time granted upon defendants' agreement not to modify any term or language contained in prior drafts, it makes no sense to permit defendants to delay disclosure of the provisions they have or are in the course of drafting substantive changes to the proposed settlement agreement. Defendants must promptly disclose any changes contemplated, even if they have not finalized language on such changes. Since counsel advises that the extension sought is also for the purpose of enabling D.O.E. personnel to provide input on whether settlement terms can be implemented, defendants should also advise plaintiffs promptly after receipt of information or feedback from staff of any issues or problems they believe may arise over implementation and workability of any settlement provision. Ordered by Magistrate Judge Marilyn D. Go on 8/18/2010. (Go, Marilyn) (Entered: 08/18/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 9/28/2010. Appearances by Rebecca Shore, Michael Scheinkman, David Stier, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debbie King for defendants. Discussions regarding the MOU and draft of settlement agreement continued to Oct. 7, 2010 at 3:30 p.m. (Abdallah, Fida) (Entered: 09/28/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 10/7/2010. Appearances by Rebecca Shore, Michael Scheinkman, Matthew Lenaghan, David Stier for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held and continued to Oct. 14, 2010 at 10:00 a.m. Prior to the conference, plaintiffs shall provide the Court with a letter setting forth the statutes and regulations upon which they rely in seeking certain provisions in the draft settlement agreement and defendants shall provide copies of the suspension plan form and IEP form. (Abdallah, Fida) (Entered: 10/08/2010)
203 First MOTION to Adjourn Conference scheduled for October 14, 2010, by Joel Klein, New York City Board of Education, New York City Department of Education. (Birnbaum, Janice) (Entered: 10/13/2010)
ORDER granting 203 Motion to Adjourn Conference scheduled for 10/14/10. The parties must promptly confer and call chambers to discuss a new date for the conference. Ordered by Magistrate Judge Marilyn D. Go on 10/13/2010. (Go, Marilyn) (Entered: 10/13/2010)
204 Letter Confirming Adjournment of Conference by EB (Shore, Rebecca) (Entered: 10/14/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 11/3/2010. Appearances by Rebecca Shore, Michael Scheinkman, Matthew Lenaghan, Sharon Katz for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held. Defendants shall provide draft of revised proposed terms re IEP by 11/22/10. Next conference scheduled for Dec. 10, 2010 at 11:00 a.m. (Abdallah, Fida) (Entered: 11/03/2010)
205 Letter and Memorandum of Understanding by AJ, B.N., EB, J.W., LBI, N.T., S.M. (Attachments: # 1 Proposed Order Memorandum of Understanding) (Scheinkman,

12/10/2010 12/10/2010
02/09/2011
03/08/2011 04/06/2011 04/06/2011 04/13/2011 05/13/2011 05/18/2011 06/02/2011 07/12/2011
09/19/2011

Michael) (Entered: 12/01/2010)
206 MEMORANDUM OF UNDERSTANDING. Ordered by Judge Eric N. Vitaliano on 12/7/2010. (Brucella, Michelle) (Entered: 12/10/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 12/10/2010. Appearances by Rebecca Shore, Michael Scheinkman, Matthew Lenaghan, Sharon Katz for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Settlement discussions held. Defendants shall promptly provide information discussed and send remaining comments re draft agreement. Next conference scheduled for Feb. 9, 2011 at 10:00 a.m. (Abdallah, Fida) (Entered: 12/10/2010)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 2/9/2011. Appearances by Rebecca Shore, Michael Scheinkman, Matthew Lenaghan, for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held and continued to March 8, 2011 at 12:00 noon. Prior to the conference, the parties should confer on the remaining significant issues. (Abdallah, Fida) (Entered: 02/10/2011)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 3/8/2011. Appearances by Rebecca Shore, Matthew Lenaghan, Sharon Katz for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held and continued to April 12, 2011 at 10:00 a.m. (Abdallah, Fida) (Entered: 03/09/2011)
207 MOTION to Adjourn Conference from April 12, 2011, to April 13, 2011, on consent by Joel Klein, New York City Board of Education, New York City Department of Education. (Birnbaum, Janice) (Entered: 04/06/2011)
ORDER granting 207 Motion to Adjourn Conference: Conference is adjourned to April 13, 2011, at 11:00 a.m. Ordered by Magistrate Judge Marilyn D. Go on 4/6/2011. (Abdallah, Fida) (Entered: 04/06/2011)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 4/13/2011. Appearances by Rebecca Shore, Michael Scheinkman, Matthew Lenaghan, Sharon Katz for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Further settlement discussions held. Next conference scheduled for May 19, 2011 at 2:30 p.m. (Abdallah, Fida) (Entered: 04/14/2011)
208 Letter confirming adjournment of conference to noon on June 2, 2011 by Joel Klein, New York City Board of Education, New York City Department of Education (Birnbaum, Janice) (Entered: 05/13/2011)
Set/Reset Hearings: The conference scheduled for 5/19/11 is rescheduled to June 2, 2011, at 12:00 p.m. (Abdallah, Fida) (Entered: 05/18/2011)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 6/2/2011. Appearances by Rebecca Shore, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan (by tel). Settlement conference continued to July 12, 2011 at 3:00 p.m. The parties shall meet and exchange proposed provisions or revisions prior to the next conference. (Abdallah, Fida) (Entered: 06/03/2011)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 7/12/2011. Appearances by Rebecca Shore, Sharon Katz for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Defendants must provide a draft of the MDR provisions by 7/22/11 and a draft of the complete agreement by 9/9/11. Next conference scheduled for Sept. 19, 2011 at 2:00 p.m. (Abdallah, Fida) (Entered: 07/13/2011)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 9/19/2011. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. The parties are exchanging comments on a complete draft settlement as well as an MOU. Next conference scheduled for Oct. 5, 2011 at 10:30 a.m. (Abdallah, Fida) (Entered: 09/21/2011)

10/04/2011 10/05/2011 10/07/2011 11/17/2011 01/09/2012 01/27/2012
03/06/2012 04/04/2012 05/03/2012 06/14/2012 07/24/2012 08/22/2012 10/02/2012

209 Letter and Memorandum of Understanding by AJ, EB, IP, J.W., LBI, S.M. (Attachments: # 1 Memorandum of Understanding) (Scheinkman, Michael) (Entered: 10/04/2011)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 10/5/2011. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held and continued to Nov. 17, 2011 at 1:00 p.m. (Abdallah, Fida) (Entered: 10/07/2011)
210 MEMORANDUM OF UNDERSTANDING. Ordered by Judge Eric N. Vitaliano on 10/6/2011. (Brucella, Michelle) (Entered: 10/07/2011)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 11/17/2011. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Next conference scheduled for January 11, 2012 at 2:00 p.m. (Abdallah, Fida) (Entered: 11/23/2011)
211 Letter confirming adjournment of Court conference by Joel Klein, New York City Board of Education, New York City Department of Education (Birnbaum, Janice) (Entered: 01/09/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 1/27/2012. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, for defendants. Settlement discussions held and continued to March 6, 2012 at 2:30 p.m. Defendants must provide their proposal re MDRs by 2/17/12. (Abdallah, Fida) (Entered: 01/31/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 3/6/2012. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, Matthew Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held and continued to 4/4/2012 at 10:00 a.m. (Abdallah, Fida) (Entered: 03/06/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 4/4/2012. Appearances by R. Shore, M. Scheinkman for plaintiffs; J. Birnbaum, J. Nathan for defendants. Settlement conference continued to 5/3/2012 at 10:00 a.m. (Abdallah, Fida) (Entered: 04/05/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 5/3/2012. Appearances by R. Shore, M. Lenaghan for plaintiffs; J. Birnbaum for defendants. Settlement discussions held and continued to 6/14/2012 at 3:00 p.m. (Abdallah, Fida) (Entered: 05/03/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 6/14/2012. Appearances by R. Shore, S. Katz, M. Scheinkman for plaintiff; J. Birnbaum and J. Nathan for defendants. Parties reported status of settlement discussions. The next conference scheduled for 7/24/12, at 10:30 a.m. (Abdallah, Fida) (Entered: 06/15/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 7/24/2012. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, M. Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held. Next conference scheduled for 8/22/2012 at 10:30 a.m. (Abdallah, Fida) (Entered: 07/25/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 8/22/2012. Appearances by R. Shore for plaintiffs; J. Birnbaum, J. Nathan for defendants. Settlement conference continued to 10/4/2012 at 2:00 p.m. Defendants shall promptly provide the additional data. (Abdallah, Fida) (Entered: 08/23/2012)
212 Letter and Memorandum of Understanding by AJ, B.N., EB, J.W., LBI, N.T., S.M. (Attachments: # 1 Memorandum of Understanding) (Scheinkman, Michael) (Entered: 10/02/2012)

10/03/2012 10/04/2012
10/09/2012 10/25/2012 11/06/2012 11/29/2012 01/08/2013
02/06/2013
03/19/2013 03/19/2013 04/18/2013
05/10/2013 05/10/2013 05/23/2013 06/12/2013

SCHEDULING ORDER: The settlement conference scheduled for 10/4/12 will be held at 1:00 p.m. Ordered by Magistrate Judge Marilyn D. Go on 10/3/2012. (Abdallah, Fida) (Entered: 10/03/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 10/4/2012. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Settlement discussions held and continued to 11/1/2012 at 1:00 p.m. (by tel) (Abdallah, Fida) (Entered: 10/10/2012)
213 ORDER re 212 Letter filed by LBI, EB, J.W., B.N., N.T., AJ, S.M. So ordered. Ordered by Judge Eric N. Vitaliano on 10/3/2012. (Siegfried, Evan) (Entered: 10/09/2012)
SCHEDULING ORDER: at counsel's request, the conference scheduled for 11/1/12 is adjourned to 11/7/12 at 3:00 p.m. Ordered by Magistrate Judge Marilyn D. Go on 10/25/2012. (Proujansky, Josh) (Entered: 10/25/2012)
SCHEDULING ORDER: At the request of both parties, the conference scheduled for 11/7/12 is adjourned to 11/29/12, at 3:00 p.m. Ordered by Magistrate Judge Marilyn D. Go on 11/6/2012. (Abdallah, Fida) (Entered: 11/06/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 11/29/2012. Appearances by R. Shore, M. Lenaghan for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Settlement discussions held and continued to 1/8/2013 at 1:00 p.m. (Abdallah, Fida) (Entered: 12/03/2012)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 1/8/2013. Appearances by Rebecca Shore, Michael Scheinkman, M. Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held and continued to 2/6/2013 at 12:00 p.m. (Abdallah, Fida) (Entered: 01/10/2013)
Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go: Settlement Conference held on 2/6/2013. Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, M. Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Settlement discussions held and continued to March 20, 2013 at 2:00 p.m. (Abdallah, Fida) (Entered: 02/07/2013)
214 Letter MOTION to Adjourn Conference to April 18, 2013 at 2:30 pm by EB. (Shore, Rebecca) (Entered: 03/19/2013)
ORDER granting 214 Motion to Adjourn Conference: The conference is adjourned to April 18, 2013, at 2:30 p.m. Ordered by Magistrate Judge Marilyn D. Go on 3/19/2013. (Abdallah, Fida) (Entered: 03/19/2013)
Minute Entry for Settlement Conference held on 4/18/2013 before Magistrate Judge Marilyn D. Go: Appearances by Rebecca Shore, Sharon Katz for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Counsel reported on the status of settlement discussions. Next conference scheduled for 05/13/2013 at 12:00 NOON. (Hugh, Lewis) (Entered: 04/23/2013)
215 First MOTION to Adjourn Conference of May 13, 2013 by Joel Klein, New York City Board of Education, New York City Department of Education. (Birnbaum, Janice) (Entered: 05/10/2013)
ORDER granting 215 Motion to Adjourn Conference: Next conference now adjourned to 9:30 a.m. at 05/23/2013. Ordered by Magistrate Judge Marilyn D. Go on 5/10/2013. (Hugh, Lewis) (Entered: 05/10/2013)
Minute Entry for Status Conference held on 5/23/2013 before Magistrate Judge Marilyn D. Go: Appearances by Rebecca Shore, Michael Scheinkman, M. Lenaghan for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Settlement continued to 6/12/2013 at 4:00 p.m. (Hugh, Lewis) (Entered: 05/24/2013)
Minute Entry for Settlement Conference held on 6/12/2013 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Scheinkman for plaintiffs; J. Birnbaum, J. Nathan for defendants. Settlement discussions held and continued to 6/28/2013 at 10:00 a.m. (by tel.) (Hugh, Lewis) (Entered: 06/13/2013)

07/01/2013 07/03/2013 07/25/2013
08/16/2013 09/17/2013 09/18/2013 10/11/2013 10/31/2013 11/19/2013 11/25/2013 12/20/2013 01/22/2014 01/31/2014

SCHEDULING ORDER: Telephone Conference set for 7/3/2013 at 01:30 PM in Courtroom 11C South before Magistrate Judge Marilyn D. Go. Ordered by Magistrate Judge Marilyn D. Go on 7/1/2013. (Hugh, Lewis) (Entered: 07/01/2013)
Minute Entry for Settlement Conference held on 7/3/2013 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Scheinkman, M. B. Dufresne for plaintiffs; J. Birnbaum, J. Nathan for defendants. Settlement discussions held and continued to 7/25/2013 at 2:00 p.m. (by tel.) (Hugh, Lewis) (Entered: 07/10/2013)
Minute Entry for Settlement Conference held on 7/25/2013 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, S. Katz, M. Scheinkman, M. Lenaghan for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Settlement discussions held. By 8/2/13, defendants must serve their proposed revised sections on the MDR and enforcement and the Parties must exchange lists identifying all remaining areas of substantive dispute. By 8/15/13, the parties shall exchange revised drafts encompassing technical, conforming changes. The parties shall confer twice prior to the next conference on 8/16/2013 at 4:00 p.m. (Hugh, Lewis) (Entered: 07/26/2013)
Minute Entry for Settlement Conference held on 8/16/2013 before Magistrate Judge Marilyn D. Go: Appearances by Rebecca Shore, Sharon Katz, Michael Scheinkman, for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement discussions held and continued to 9/17/2013 at 10:00 a.m. (Hugh, Lewis) (Entered: 08/19/2013)
Minute Entry for Settlement Conference held on 9/17/2013 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, S. Katz, M. Lenaghan, B. Dufresne for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Settlement discussions held and continued to 10/15/2013 at 11:30 a.m. (Hugh, Lewis) (Entered: 09/18/2013)
216 Letter and Memorandum of Understanding by EB (Attachments: # 1 Proposed Order) (Shore, Rebecca) (Entered: 09/18/2013)
SCHEDULING ORDER: The conference on 10/15/2013 is adjourned to 10/29/2013 at 3:00 p.m. on parties' oral request. Ordered by Magistrate Judge Marilyn D. Go on 10/11/2013. (Hugh, Lewis) (Entered: 10/11/2013)
Minute Entry for Settlement Conference held on 10/31/2013 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, S. Katz, M. Lenaghan, M. Dufresne for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Settlement conference continued to Nov. 21, 2013 at 3:00 p.m. (Hugh, Lewis) (Entered: 10/31/2013)
SCHEDULING ORDER: Due to a change in Judge Go's schedule, the conference scheduled for 11/21/2013 is adjourned to 11/25/2013 at 11:00 AM on consent of all parties before Magistrate Judge Marilyn D. Go. Ordered by Magistrate Judge Marilyn D. Go on 11/19/2013. (Hugh, Lewis) (Entered: 11/19/2013)
Minute Entry for Settlement Conference held on 11/25/2013 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Scheinkman, M. Dufresne, R. Martin for plaintiffs; J. Birnbaum, J. Nathan for defendants. Counsel reported on status of settlement discussions. Next conference scheduled for 12/20/2013 at 11:00 a.m. (by tel.) (Hugh, Lewis) (Entered: 11/26/2013)
Minute Entry for Settlement Conference held on 12/20/2013 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Scheinkman for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Counsel reported on status of settlement discussions. Next conference to be held on 1/20/2014 at 9:30 a.m. (by tel) (Hugh, Lewis) (Entered: 12/23/2013)
SCHEDULING ORDER: After all parties have conferred, a telephone conference is set for 1/31/2014 at 04:00 PM before Magistrate Judge Marilyn D. Go. Ordered by Magistrate Judge Marilyn D. Go on 1/22/2014. (Hugh, Lewis) (Entered: 01/22/2014)
Minute Entry for Settlement Conference held on 1/31/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Scheinkman, R. Martin, M. Dufresne for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. The parties reported on progress in settlement discussions. Next conference scheduled for 2/20/2014 at 10:00 a.m. (Hugh, Lewis) (Entered: 02/03/2014)

02/20/2014 03/13/2014 03/27/2014 04/04/2014 04/22/2014 05/08/2014 05/28/2014 06/12/2014 06/18/2014 06/24/2014 08/06/2014 08/21/2014 09/23/2014
10/10/2014

Minute Entry for Status Conference held on 2/20/2014 before Magistrate Judge Marilyn D. Go: Appearances by Rebecca Shore, B. Dufresne for plaintiffs; Janice Birnbaum, Judy Nathan, Debra King for defendants. Settlement conference continued to 3/13/2014 at 10:00 a.m. (in person) (Hugh, Lewis) (Entered: 02/21/2014)
Minute Entry for Settlement Conference held on 3/13/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Scheinkman, M. Dufresne, R. Martin for plaintiffs; J. Birnbaum, J. Nathan for defendants. Settlement discussions held and continued to 3/27/2014 at 9:30 a.m. (by tel) (Hugh, Lewis) (Entered: 03/14/2014)
Minute Entry for Settlement Conference held on 3/27/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore for plaintiffs; J. Birnbaum, J. Nathan for defendants. Settlement discussions held and continued to 4/4/2014 at 4:00 p.m. (by tel.) (Hugh, Lewis) (Entered: 03/28/2014)
Minute Entry for Settlement Conference held on 4/4/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, S. Katz, M. Dufresne, R. Martin for plaintiffs; J. Birnbaum, J. Nathan for defendants. Settlement discussions held and continued to 4/22/2014 at 4:00 p.m. (Hugh, Lewis) (Entered: 04/07/2014)
Minute Entry for Settlement Conference held on 4/22/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Settlement discussions held and continued to 5/8/2014 at 10:00 a.m. (Hugh, Lewis) (Entered: 04/23/2014)
Minute Entry for Settlement Conference held on 5/8/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, S. Katz, R. Martin for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Settlement discussions held and continued to 5/27/2014 at 3:00 p.m. (Hugh, Lewis) (Entered: 05/09/2014)
Minute Entry for Settlement Conference held on 5/27/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, S. Katz, M. Dufresne for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Settlement discussions held and continued to 6/18/2014 at 12:00 p.m. (Moo−Young, Jillian) (Entered: 05/28/2014)
ORDER: The conference on 06/18/2014 is canceled. Parties are directed to confer and call with new proposed dates by 06/13/2014. Ordered by Magistrate Judge Marilyn D. Go on 6/12/2014. (Hugh, Lewis) (Entered: 06/12/2014)
SCHEDULING ORDER: An in person conference is set for 6/24/2014 at 10:00 AM before Magistrate Judge Marilyn D. Go. Ordered by Magistrate Judge Marilyn D. Go on 6/18/2014. (Hugh, Lewis) (Entered: 06/18/2014)
Minute Entry for Settlement Conference held on 6/24/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Dufresne for plaintiffs; J. Birnbaum, J. Nathan, D. King for defendants. Counsel reported on the status of settlement discussions. Next conference scheduled for 8/6/2014 at 10:30 a.m. (by tel.) (Hugh, Lewis) (Entered: 06/25/2014)
SCHEDULING ORDER: The telephone conference on 08/06/2014 is rescheduled to 08/21/2014 at 10:30 a.m. with consent from all parties. Ordered by Magistrate Judge Marilyn D. Go on 8/6/2014. (Hugh, Lewis) (Entered: 08/06/2014)
Minute Entry for Status Conference held on 8/21/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, S. Katz for plaintiffs; J. Birnbaum, J. Nathan for defendants. Counsel reported on status of negotiations. Next settlement conference scheduled for 9/23/2014 at 10:30 a.m. (by tel.) (Hugh, Lewis) (Entered: 08/25/2014)
Minute Entry for Settlement Conference held on 9/23/2014 before Magistrate Judge Marilyn D. Go: Appearances by Rebecca Shore, Sharon Katz, M. Dufresne for plaintiffs; Janice Birnbaum, Judy Nathan for defendants. Counsel reported that they are working on two remaining provisions of draft settlement agreement. Next conference scheduled for 10/10/2014 at 1:00 p.m. (by tel.) (Hugh, Lewis) (Entered: 09/24/2014)
Minute Entry for Settlement Conference held on 10/10/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, B. Dufresne for plaintiffs; J. Birnbaum, J.

11/06/2014 11/19/2014
11/25/2014 01/15/2015
03/18/2015
04/16/2015 04/28/2015 04/28/2015 05/13/2015 05/13/2015 05/13/2015 05/18/2015 05/19/2015

Nathan for defendants. Counsel reported they are close to completing the final draft of the settlement agreement. Next conference scheduled for 11/6/2014 at 1:30 p.m. (by tel) (which will be adjourned if the completed draft is sent to the Court before this date). (Hugh, Lewis) (Entered: 10/14/2014)
SCHEDULING ORDER: at the parties' request, the telephone conference scheduled for 11/6/14 is adjourned to 11/19/14 at 4:00 p.m. Ordered by Magistrate Judge Marilyn D. Go on 11/6/2014. (Proujansky, Josh) (Entered: 11/06/2014)
Minute Entry for Settlement Conference held on 11/19/2014 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Sheinkman for plaintiffs; J. Birnbaum, J. Nathan for defendants. Counsel reported they are very close to reaching agreement on settlement documents and will be submitting the documents for client approval promptly thereafter. Next conference scheduled for 1/15/2015 at 2:00 p.m. (by tel.) (Hugh, Lewis) (Entered: 11/20/2014)
217 NOTICE of Appearance by Bernard Dufresne on behalf of All Plaintiffs (aty to be noticed) (Dufresne, Bernard) (Entered: 11/25/2014)
Minute Entry for Settlement Conference held on 1/15/2015 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, B. Dufresne for plaintiffs; J. Birnbaum, J. Nathan for defendants. Counsel reported that the settlement agreement has been drafted and they are in the process of obtaining approval. In the interim, counsel will begin drafting preliminary approval documents. Next conference scheduled for 3/18/2015 at 10:00 a.m. (by tel.) (Hugh, Lewis) (Entered: 01/20/2015)
Minute Entry for Status Conference held on 3/18/2015 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, M. Scheinkman, M. Dufresne for plaintiffs; J. Birnbaum, J. Nathan for defendants. Counsel reported that approval for the settlement agreement has been given and they are drafting notice and other settlement documents. Next conference scheduled for 4/16/2015 at 1:30 p.m. (by tel) (Hugh, Lewis) (Entered: 03/19/2015)
Minute Entry for Status Conference held on 4/16/2015 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, B. Dufresne for plaintiffs; J. Birnbaum, J. Nahtan for defendants. Next conference scheduled for 4/28/2015 at 4:30 p.m. (by tel.) (Hugh, Lewis) (Entered: 04/17/2015)
Preliminary Approval Hearing set for 5/19/2015 at 11:00 AM in Courtroom 4C South before Judge Eric N. Vitaliano. (Murphy, David). (Entered: 04/28/2015)
Minute Entry for Status Conference held on 4/28/2015 before Magistrate Judge Marilyn D. Go: Appearances by R. Shore, B. Dufresne for plaintiffs; J. Birnbaum, J. Nathan for defendants. Parties advise that a preliminary approval motion will be filed next week. (Hugh, Lewis) (Entered: 04/29/2015)
218 MOTION for Settlement / Plaintiffs' Motion for Preliminary Approval of Settlement and Notice by AJ, B.N., EB, J.W., LBI, N.T., S.M.. (Katz, Sharon) (Entered: 05/13/2015)
219 MEMORANDUM in Support re 218 MOTION for Settlement / Plaintiffs' Motion for Preliminary Approval of Settlement and Notice filed by AJ, B.N., EB, J.W., LBI, N.T., S.M.. (Katz, Sharon) (Entered: 05/13/2015)
220 STIPULATION re 218 MOTION for Settlement / Plaintiffs' Motion for Preliminary Approval of Settlement and Notice / Stipulation of Agreement of Settlement by AJ, B.N., EB, J.W., LBI, N.T., S.M. (Katz, Sharon) (Entered: 05/13/2015)
221 Letter by Joel Klein, New York City Board of Education, New York City Department of Education (Birnbaum, Janice) (Entered: 05/18/2015)
222 ORDER granting 218 Motion for Preliminary Approval of Settlement and Notice of Class Action Settlement. The Court grants preliminary approval of the settlement memorialized in the Stipulation, concluding that the notice to the class and the proposed notice forms are appropriate, meet the requirements of Rule 23 and due process, and constitute the best notice practicable under the circumstances. The Court also finds that the Stipulation is the result of extensive, arms length negotiations, and, accordingly, the Court determines that there is probable cause to submit the proposed

05/19/2015 05/19/2015
07/17/2015 07/17/2015 07/20/2015 07/20/2015 07/20/2015
07/23/2015 07/24/2015
07/24/2015
08/29/2018 08/31/2018 09/25/2018 09/28/2018

settlement to class members and thereafter hold a final hearing as to its fairness. The Settlement Fairness Hearing is scheduled to be held before the Court on July 23, 2015 at 9:30 a.m. The Court will consider comments and/or objections to the Settlement and persons wishing to be heard orally with regard to approval of the Settlement so long as those comments and/or objections, along with any intention to appear at the hearing, are submitted in writing to the Clerk of Court and to counsel on or before July 16, 2015. Ordered by Judge Eric N. Vitaliano on 5/19/2015. (Murphy, David) (Entered: 05/19/2015)
Set Hearings: Settlement Fairness Hearing set for 7/23/2015 09:30 AM in Courtroom 4C South before Judge Eric N. Vitaliano. (Murphy, David) (Entered: 05/19/2015)
Minute Entry for proceedings held before Judge Eric N. Vitaliano:Preliminary Approval Hearing held on 5/19/2015. Appearances by Rebecca Shore, David Stier, Bernard Dufresne, Sharon Katz, and Michael Scheinkman for plaintiffs; Janice Birnbaum and Judy Nathan for defendants. (Murphy, David) (Entered: 5/19/2015) (Entered: 05/19/2015)
223 DECLARATION re 222 Order on Motion for Settlement,,,, by Joel Klein, New York City Board of Education, New York City Department of Education (Birnbaum, Janice) (Entered: 07/17/2015)
224 DECLARATION re 222 Order on Motion for Settlement,,,, of Janice Birnbaum by Joel Klein, New York City Board of Education, New York City Department of Education (Birnbaum, Janice) (Entered: 07/17/2015)
225 MOTION for Settlement / Plaintiffs' Motion for Final Approval of Settlement by AJ, EB, J.W., LBI, S.M.. (Attachments: # 1 Proposed Judgment) (Scheinkman, Michael) (Entered: 07/20/2015)
226 MEMORANDUM in Support re 225 MOTION for Settlement / Plaintiffs' Motion for Final Approval of Settlement filed by AJ, EB, J.W., LBI, S.M.. (Scheinkman, Michael) (Entered: 07/20/2015)
227 AFFIDAVIT/DECLARATION in Support re 225 MOTION for Settlement / Plaintiffs' Motion for Final Approval of Settlement / Declaration of Rebecca Shore in Support of Plaintiffs' Motion for Final Approval of Settlement filed by AJ, EB, J.W., LBI, S.M.. (Scheinkman, Michael) (Entered: 07/20/2015)
Minute Entry for proceedings held before Judge Eric N. Vitaliano:Settlement Fairness Hearing Conference held on 7/23/2015. (Court Reporter Victoria Torres−Butler.) (Villanueva, William) (Entered: 09/11/2015)
228 MEMORANDUM AND ORDER APPROVING SETTLEMENT AND ENTERING FINAL JUDGMENT. ORDER grants 225 Motion for Settlement. **** Forwarded to Janet Hamilton for Judgment. Ordered by Judge Eric N. Vitaliano on 7/23/2015. (Riquelme, Claudia) (Entered: 07/24/2015)
229 JUDGMENT in favor of AJ, EB, J.W., LBI, S.M. and against New York City Board of Education, New York City Department of Education, Joel Klein See attached M&O 228 for further details. Ordered by Janet Hamilton, deputy clerk, on behalf of Douglas C. Clerk of Court on 7/24/2015. (Riquelme, Claudia) (Entered: 07/24/2015)
230 MOTION to Amend/Correct/Supplement 220 Stipulation and Agreement of Settlement by AJ, B.N., EB, J.W., LBI, N.T., S.M.. (Scheinkman, Michael) (Entered: 08/29/2018)
231 STIPULATION AND PROPOSED ORDER, regarding Stipulation and Agreement of Settlement. Ordered by Judge Eric N. Vitaliano on 8/31/2018. (Piper, Francine) (Entered: 08/31/2018)
232 NOTICE of Appearance by Andrew James Rauchberg on behalf of Joel Klein, New York City Board of Education, New York City Department of Education (aty to be noticed) (Rauchberg, Andrew) (Entered: 09/25/2018)
233 STIPULATION re 231 Order on Motion to Amend/Correct/Supplement extending the Termination Date to October 15, 2018 by AJ, B.N., EB, J.W., LBI, N.T., S.M. (Scheinkman, Michael) (Entered: 09/28/2018)

10/15/2018 10/18/2018

234 STIPULATION re 233 Stipulation and Proposed Order. by AJ, B.N., EB, J.W., LBI, N.T., S.M. (Scheinkman, Michael) (Entered: 10/15/2018)
235 ORDER, the parties have agreed to modify the Stipulation submitted onSeptember 28 as set forth herein. The parties agree to an extension of the Termination Date with respect to paragraph 18 of the Stipulation and the obligations relating to that paragraph (e.g., reporting obligations and jurisdiction paragraphs) by 8 days. For these obligations, the new Termination Date is October 23,2018. The Written Notice provided by Plaintiffs on September 14,2018 will be deemed provided ten business days before the Termination Date. Nothing herein will be deemed to affect the timeliness or untimeliness of Plaintiffs' September 14,2018 notice or the timeliness or untimeliness of any potential motion to enforce or extend, and nothing herein will be deemed to constitute an admission by the Defendants that Plaintiffs' September 14, 2018 notice or any subsequent motion will become timely in light of the extension agreed upon herein. Further, nothing herein will be deemed to constitute a waiver of any arguments concerning the timeliness or untimeliness of Plaintiffs' notice or any subsequent motion, or a waiver of any arguments concerning Plaintiffs' compliance or non−compliance with paragraphs 74, 76, and/or 77 of the Stipulation. Nothing herein will be deemed to impact Plaintiffs' rights to make a motion pursuant to paragraph 81 of the Stipulation (concerning counsel fees). Ordered by Judge Eric N. Vitaliano on 10/16/2018. C/M (Galeano, Sonia) (Entered: 10/18/2018)

 
 • • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 1 of 28 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
N.T.; S.M., by and through his fatherK.M.; l}.N., ,by

e ·>:i,, ~.iJ,:f1::?.1f t'1
. 1

SIFTON, J.
GO. M.J.

and through his mother R.N.; and J.W. by and ,

through his mother Y.C., on behalfofthemsel all others similarly situated,

.;5118

Civ. No.:

Plaintiffs,

-against-
I NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; and JOEL KLEIN, in his official capacity as Chancellor of the New York City School
District, Defendants.

CLASS ACTION COMPLAINT FOR INJUNCTIVE, DECLARATORY
AND OTHER RELIEF

PRELIMINARY STATEMENT 1. In the Individuals With Disabilities Education Act ("the IDEA"), Congress
has required states and school districts to "identify, locate, and evaluate" all children with disabilities (the "child-find requirement"), and provide these children with special education services. Children with emotional or behavior problems are among those who may qualify for special education under the IDEA. In practice, however, the special needs of these children are often not identified. Instead, children who have disabilities are subjected to school discipline procedures designed for non-disabled children; and are excluded, removed, suspended or expelled (or sent to alternative, disciplinary classes or schools) without a determination of their special needs, or of the extent to which their misbehavior may have resulted from a disability, and are denied protections oflaw.

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 2 of 28 PageID #: 2

2. This case seeks w enforce the child-find requirement with respect to such

students, the federal, stare and local laws that protect them from illegal exclusions, as

well as certain related procedural protections, which provide, inter uliu, that where a

ochool district knows or rea.~onably should know thnt a child may have a disability, the

child may not be excluded until il proper review of his or her needs is made. Plalntiffs

I

are children with histories of behavior problems and academic failure that have been

excluded from school or mherwise disciplined based on their behavior. Plaintiffs'

complain~ is that the Defendants have no system for ensuring that adequate measures

have been taken in each case to implement the "child-find" duty, and afford the child his

or her procedural rights and to ensure that superintendents and principals comply with the

1uw 3. Plaintiffs seek an order requiring the establishment of such a system, and
requiring defendants to afford them the rights to which they are entitled. Similar claims are asserted under Seer ion 504 of the Rehabilitation Act and State and Local laws.

,!URlSDICTION 4. This Court has jurisdiction under 28 U.s:c. § 1331, in that claims are asserted
under the laws of the United States; under 28 U.S.C. § 1343(a), in that claimR are asserted under laws providing for the protectiOn of civil rights; and under 42 U.S.C. § 1983; and the IDEA, 20 U.S.C. § 1400 et seq., as amended by Pub. L. No. 105-17 at§ 615(I)(3)(A) ( 1997), in that this action presents cbims under the IDEA. This Court has jurisdiction over Plaintiffs' pendent state law claims pursLlant to 28 U,S.C. § 1367. Plaintiffs also 'eek declaratory relief pur.\LH\nt to 28 U.S. C. § 220 I and 2202.

2

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 3 of 28 PageID #: 3 5. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this district. 6. If successful, the plaintiffs are entitled to costs and attorneys fees under 42 U.S.C. § 1988 and 20 U.S.C. § 1400 et seq. 7. Plaintiffs have no adequate remedy at law. Unless the defendants and their agents, representatives and employees are preliminarily and permanently restrained, plaintiffs will continue to suffer immediate and irreparable harm from the conduct of which they complain. PARTIES 8. Plaintiff NT is an 18-year-old girl who lives in New York City and has attended the New York City public schools. 9. PlaintiffSM is 16-year-old boy who resides in New York and has attended New York City public schools. He currently attends a residential school in New York State, pursuant to an IEP developed by a New York City school district. He brings this action by his father, KM. I0. PlaintiffBN is a 13-year-old boy who lives in New York City and attends a New York City public school. He brings this action by his mother, RN. 11. Plaintiff JW is an !!-year-old boy who lives in New York City and attends a New York City public school. He brings this action by his mother, YC. 12. Defendant The NEW YORK CITY BOARD OF EDUCATION ("the Board of Education" or "the Board") was or continues to be the Local Educational Agency under IDEA charged with ensuring that children are provided with a free, appropriate public education in New York City under federal and state law. It is also the official
3

. .

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 4 of 28 PageID #: 4

body charged with the responsibility for developing policies with respect to the

administration and operation of the public schools in the. City ofNew York. N.Y. Educ. Law §§ 2590, 2590-g (McKinney 1980). The Board is the recipient offederal financial

assistance under the IDEA.

13. Defendant The NEW CITY DEPARTMENT OF EDUCATION

("Department") is the newly formed government office or LEA charged with ensuring

that children are provided with a free, appropriate public education in New York City. It is also the official body charged with the responsibility for developing policies with

respect to the administration and operation of the public schools in the. City ofNew York. N.Y. Educ. Law§§ 2590, 2590-g (McKinney 1980). It is the recipient of federal financial assistance under the IDEA.

14. Defendant JOEL KLEIN is the Chancellor of the New York City School

District ("the Chancellor") and as such is entrusted with the specific powers and duties set forth in N.Y. Educ. Law § 2590-h (McKinney 1930), including the power and duty to control and operate all special education programs and services conducted in New York City Schools and programs.

CLASS ACTION ALLEGATIONS

15. Plaintiffs' claims for relief are brought on their own behalf and on behalf of

all those similarly situated pursuant to Rules 23(a) and 23(b), Fed.R.Civ.P. Defendants

have acted and refused to act on grounds generally applicable to the named and class plaintiffs, making appropriate declaratory and injunctive relief as to the class as a whole.

16. The class represented by the named plaintiffs is composed of all students with

disabilities, not properly identified as such, who have been or will be excluded or

4

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 5 of 28 PageID #: 5 otherwise disciplined based on their behavior and not afforded the procedural protections contained in the IDEA, Section 504 or state and local law. 17. On information and belief, the class consists of several thousand individuals. Hence, joinder of all members is impracticable. 18. There are questions oflaw and fact in common between the named plaintiffs and the members of the class they seek to represent, e.g., whether the defendants have violated the law by failing to take steps to identifY class members with a disability and whether defendants have failed to comply with Federal and State law in excluding them from school. 19. The claims of the named plaintiffs are similar to those of the class they seek to represent, in that they, like the other members of the class, maintain that defendants failed to establish adequate procedures for determining whether they have a disability and failed to afford them certain procedural rights until that determination could be made. Accordingly, the claims of the named plaintiffs are typical. 20. The named plaintiffs will adequately represent and protect the interests of the class. Counsel for the named plaintiffs are experienced in federal class action litigation and will vigorously pursue this action in the interest of the class. FACTUAL ALLEGATIONS Overview ofthe Special Education System 21. In enacting the IDEA, Congress specifically addressed in its findings the need to correct the historical exclusion of children with disabilities from public education: "Before...the enactment of the Education for All Disabled Children Act of 1975...more than one half of the children with disabilities in the United States did not
5

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 6 of 28 PageID #: 6 receive appropriate educational services that would enable such children to have full equality of opportunity." 20 U.S.C. § 1400(2)(B). Congress also found that "1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers." 20 U.S.C. § 1400(2)(C). 22. Congress recognized that without federal pressure school districts frequently did not serve children properly, but instead excluded them from school, warehoused them in [segregated] special education classes, or left them in regular classes with no services to ensure that they could learn. Honig v. Doe, 484 U.S. 305,308 (1988). 23. Congress further emphasized the importance of preventing suspensions and expulsions of children with disabilities as a disciplinary measure. PL 105-17 states in part: " [R]esearch, demonstration, and practice over the past 20 years in special education and related disciplines have demonstrated that an effective educational system now and in the future must...create school-based disciplinary strategies that will be used to reduce or eliminate the need to use suspension and expulsion as disciplinary options for children with disabilities." 20 U.S.C. § 145l(a)(6)(H). 24. Under the IDEA and relevant implementation regulations, 34 C.F.R. part 300, each state, and each local educational agency (such as a school district) within a state, is required to identity, locate and evaluate every child with disabilities. 25. "Disabilities," as defined by the IDEA, include various mental, emotional, and physical impairments. An example ofsuch a disability is "emotional disturbance," the components of which include "an inability to build or maintain satisfactory interpersonal relationships with peers and teachers" or "inappropriate types of behavior or feelings
6

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 7 of 28 PageID #: 7 under normal circumstances" (together with other factors spelled out in the regulations).
34 C.P.R. § 300.7(a)(9). 26. The IDEA further requires that states and local education agencies ensure that
each child with disabilities is provided a free appropriate public education ("FAPE"). A free appropriate public education consists of special education and related services designed to meet the child's unique needs, and provided in conformity with certain procedural safeguards specified by the Act.
27. These procedural safeguards include, inter alia, the right of the student's parents to participate in the development of an individualized education program, and to obtain an administrative hearing (and, if needed, an administrative appeal and judicial review) on any complaint concerning the student's education.
28. The IDEA's procedural safeguards also include certain rules relative to discipline. For example, if a child with disabilities misbehaves in school, school officials may propose a change in the child's program or placement. Ordinarily, parental consent is required before the change can be carried out; however, if weapons or drugs are involved, or if the child poses a risk of injury to self or others, the child may be transferred to an "appropriate alternative interim educational setting" - over parental objection if necessary-for up to 45 days.
29. Children with disabilities can also be excluded from school for more than ten days under some circumstances. However, any exclusion from school must be preceded by a determination, made by a multidisciplinary team, of whether the child's misbehavior was related to his or her disability. If a relationship is found, exclusion cannot occur, although changes may be made in the child's program or placement. If the team finds
7

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 8 of 28 PageID #: 8 that the behavior was not related to the disability, the parents can obtain administrative and, if necessary, judicial review of that determination, and the expulsion cannot be carried out until that review is completed. 30. Also, in order to ensure that districts do not avoid the "child-find" requirement, the IDEA imposes certain requirements with respect to children who show signs of disability, but who have not been evaluated or classified. Specifically, where the district knows or has reason to know that the child may have a disability, the child has the right to remain in school until a determination ofhis or her needs is made, and any administrative or judicial appeals are completed. 31. While this requirement is not new, it has been reinforced by the most recent amendments to the IDEA, which identify a number of specific circumstances under which a district will be deemed to know that the child may have a disability. These include instances in which the child's behavior or academic performance demonstrates the need for special education services; the parent has expressed a concern in writing that the child needs special education, or requested an evaluation ofthe child; or a teacher or other staffmember has at some point expressed concern about the child's behavior or performance. 32. School districts are responsible for implementation of the child-find requirement and these procedural safeguards. 33. The obligation of the school districts to identify and provide appropriate educational services to children with disabilities, and to refrain from excluding or otherwise punishing students for whom there are indications ofpossible disability, also
8

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 9 of 28 PageID #: 9 arises from Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and regulations thereunder, 34 C.F.R. Part 104. 34. The 14th Amendment to the U.S. Constitution protects children from removals from school without due process oflaw and removal of children protected by the IDEA must be done in accordance with Constitutional due process. 35. New York Education Law, regulations and policies also contain provisions, designed to implement the IDEA and Section 504, and many of those provisions provide additional protections for children not mandated by federal law. 36. New York Education Law also mandates that children be provided procedural protections before they are removed, suspended, excluded, transferred, discharged or otherwise disciplined from school and alternative education after they are removed. 37. New York Education Law, regulations and policies also contain mandates for educational standards for children and services for at-risk children who do not have disabilities and behavioral problems entitling them to services under the IDEA or Section 504. 38. The Defendants also have policies and procedures governing removals, some of which contain provisions designed to implement federal and state law. Facts Concerning the Named Plaintiffs 39. NT was born on October 24, 1983 and she is 18 years old. She has a diagnosis ofbi-polar disorder. NT has not been enrolled in school since approximately December 2001. She also missed several months of school during the 2000-2001 school year. 40. NT attended catholic school in elementary and junior high school. She moved to the public school system when she graduated from 8th grade.
9

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 10 of 28 PageID #: 10 41. Upon information and belief, NT started high school at Park East High School in the fall of 1997. She attended Park East until some time in the fall of 1999, at which point she transferred to Legacy High School ("Legacy"). 42. NT's sister, MT also attended Legacy during the 1999-2000 school year. NT had behavioral problems at Legacy and MT and NT argued with each other. The academics of both girls were suffering. The school requested that either NT or her sister
leave. 43. NT was discharged from Legacy at some point prior to the end of the 1999-
2000 school year. Defendants did not enroll her in another school for the remainder of that school year or offer her the opportunity to attend summer school.
44. NT did not get enrolled in school again until October 2001, when the family finally secured a seat for her in Lower Manhattan Outreach ("LMO").
45. NT had behavioral and emotional difficulties at LMO, including but not limited to fights and outbursts in class. She lacked concentration, and expressed some paranoid feelings. On one occasion, the school called the family to come pick up NT because she was hiding under a sink after a fight with some girls.
46. In or about March or April of2001, NT's guidance counselor at LMO told her mother that she had to leave the school, as he felt she needed a smaller school setting that had more support and psychological services. She was not permitted to finish out the school year at LMO.
47. NT' s family did not find another school for NT until they located Borough Academy ("BA") and enrolled her in October 2001. By this time, NT had missed another five months of school, and had not been offered the opportunity to attend summer school.
10

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 11 of 28 PageID #: 11 48. Her behavior started to escalate once she went to BA. She started crying, had angry outbursts, cursed at and argued with teachers and ran out of class. She was having a very difficult time concentrating and she eventually stopped going to school regularly. She also had other behavioral problems. Her academics were suffering. 49. At some point in the winter of2001-2002, the BA school staff suggested that her mother take NT somewhere for a psychiatric evaluation. In mid-January 2002, her mother took her to be evaluated. The following day she was admitted to St. Luke's hospital. At St. Luke's NT was diagnosed with bi-polar disorder and put on medication. 50. NT's grandmother called the school to inform them that NT was in the hospital and that she had a bi-polar diagnosis. She was told by school officials that if NT missed the registration period, she would have to wait out the semester until the following August 2002 registration period to go back to school. She was also told that NT's mother had to agree to discharge NT otherwise the school would have to mark her
as a "truant." 51. NT left the hospital on January 31, 2002. To date, she has not been re-
admitted into school. 52. On September 9, 2002, NT and her mother met with the school administrators
at BA. They told the administrators NT was on medication and was able to return to school, based on her doctor's opinion. At that meeting, however, NT and her mother were told that due to NT's behavior, she probably needed a day treatment program. They were told NT was not allowed to return to school because ofher behavior and that the school did not have the resources to address her needs. The Assistant Principal also said many other things that were very hurtful to NT, causing her emotional distress.
11

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 12 of 28 PageID #: 12 53. NT's mother informed the Assistant Principal that she was taking medication on her own and that she had a note from her doctor indicating that she could return to school, but that had no effect on the AP and she refused to enroll NT. 54. At no time did any of the Defendants or their employees or agents refer NT for an evaluation or provide her with the services and protections due to her under federal and state law. 55. NT was not evaluated for a suspected disability, was not provided FAPE and was discriminated against based on her disability. She was illegally excluded from school in violation ofthe U.S. Constitution, and federal, state and local laws and policies based on her behavior. 56. NT's mother was never provided notice of her rights under federal and state law or information about administrative remedies. 57. At no time did any school offer specific supports, modifications, or services to address NT's needs. 58. NT was not provided with instruction during any of the time that she was excluded from school. 59. No one ever informed NT's mother of her child's right to receive educational services and instruction toward the Regent's diploma. In fact, principals and guidance staffmisinformed her about what the school system's obligations were with regard to her children. 60. Upon information and belief, NT needs approximately 14 credits to graduate. She also needs to pass her Regents' exams.
12

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 13 of 28 PageID #: 13 61. Counsel wrote a Jetter to the Chancellor's attorney on September 11,2002, informing him of the situation and requesting immediate placement as well as other remedies. To date, defendants still have not offered a school for NT. 62. Plaintiff SM is a 16-year-old student who resides in the district and has just completed what should have been his lOth grade year. Until September 2002, he had earned only 2 high school credits and had been truant for much ofhis high school career. 63. SM is a child who had above-average potential, but who's learning needs, concentration and attention problems were left unaddressed for so long that he fell several years behind and become discouraged and disengaged from academic pursuit. 64. SM was evaluated for special education services in 1993. At that time, the BOB's evaluators assessed SM's verbal IQ in the Very Superior range and found he had a learning disability. 65. The Board provided SM special education services between 1993 and 1995, during which time his behavior and performance continued to deteriorate. By 1995, SM's writing and decoding had began to be serious barriers for him; his IEP notes that he does not spell sight words, does not use appropriate writing mechanics, and does not use legible and appropriate letter form and size. 66. At the request of the school principal, in July of 1995, SM's father obtained an outside evaluation that diagnosed SM as having Attention Deficit Disorder. The evaluation noted a range ofbehavior issues and poor performance. 67. Subsequently, SM was provided a prescription for Ritalin. Through use of a "Section 504" form, SM was supposed to be administered this medication in school.
13

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 14 of 28 PageID #: 14 68. In 1996, the Board conducted a triennial evaluation. Despite the fact that SM's school performance and behavior were declining and his evaluations continued to reflect a learning disability and ADHD, the CSE decertified SM, and discontinued the provision of all services. 69. During the 1998-99 school year, SM's school performance and behavior worsened. At the beginning of the 1998-1999 school year, SM's father again requested that SM be provided special education services; again, despite the recognition that he was taking Ritalin, had terrible behavior and was performing well below grade level, he was denied services. The defendants did not refer SM to a Section 504 team or provide any other accommodations at this time. 70. The following school year, SM's behavior began to escalate and his academic performance remained low. All teacher comments on his report cards reflect that he was having problems in school. 71. During the 1999-2000 school year, SM also received no less than 17 behavioral referrals and was suspended from school on a few occasions. Teacher comments on June 26, 2000 reflect that he was having serious difficulties: almost every teacher said he was out of control. SM also received medication in school during that year. 72. It was in high school that SM's problems with truancy started. He started the 2000-2001 school year at Bayside High School. His attendance record reflects extremely poor attendance. In November 2001, he was assaulted twice in school. 73. SM's father requested a safety transfer, but he was out of school for several weeks before a new school was provided. SM was assaulted again at the new school.
14

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 15 of 28 PageID #: 15 74. On or about January 30, 2001, SM's father filed an impartial hearing alleging violations of the child find provisions of the IDEA and Section 504, as well as denial of FAPE under these acts. The District resolved the hearing before it was completed, by conducting an IEP meeting and recommending a residential school for SM. 75. During the hearing, however, the District testified that the CSE does not engage in child find activities under Section 504 and is not aware of any policies or procedures concerning "child find" under Section 504. 76. SN is currently a student with an IEP and is in a residential school, trying to make up for the years of neglect and damage done by defendants. 77. BN is an 8th grade student at IS 126. BN was evaluated in elementary school for special education services but was found to be ineligible. No referral for Section 504 or other supports was made following the determination of ineligibility. 78. During the 2001-2002 school year, BN was attending a school-based mental health program run by LIJ at his school. He had been referred to this program through his school. When this program ended in the Spring, his mother enrolled him in an outside counseling program. 79. The guidance counselor at BN's school once told BN's mother that she believes he has Oppositional Defiance Disorder. 80. During the week of April 15, 2002, there was an incident in school where, allegedly, BN got angry and pulled things off a bulletin board. He continued to attend school for the rest of the week. On Friday, Aprill9, 2002, his mother received a letter asking her to attend a guidance counsel hearing at the district with the Director of Pupil Personnel. This hearing was scheduled for Monday, April 22, 2002.
15

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 16 of 28 PageID #: 16 81. The parent attended the hearing with BN, and the 7th grade dean from his school. At this hearing, the Director of Pupil Personnel told BN's mother that she recommends that his mother obtain a psychiatric evaluation for BN. BN's mother agreed and began taking steps to make an appointment for such an evaluation. The Director said that BN should have an "in house" suspension and that the suspension could not be at BN's current school, pending results ofthe outside psychiatric. 82. BN was allowed to take a test at his school on the following day, Tuesday, April 23, 2002. 83. The following day, his mother went to the school to inquire of the Dean where BN should go to school. The Dean told her that BN was no longer enrolled at the school and that she would have to go to the district to find out what to do next. At that point, BN's mother sought the advice of AFC. 84. The Dean informed counsel that he suspected that BN may have been sent to Project Return at PS 76. Project Return was not discussed with BN's mother at the April 22, 2002 meeting, and she never gave her consent to transfer BN to another school. Moreover, BN's mother did not get any information about other possible placements for BN, or any written information about BN's suspension, if indeed he was being suspended, including what he was being suspended for or the length of the suspension. 85. On Friday, April26, AFC faxed and mailed a letter to the Director pointing out the various violations in this situation, and also asserted the child's IDEA rights because school clearly thought that he may be a student with a disability.
16

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 17 of 28 PageID #: 17 86. On Monday, April29, 2002 BN's mother went to school with a letter from AFC. The school staff got the Director on the phone, and his mother prevailed on them to re-enroll BN at IS 126. 87. BN attended school that day but brought home a letter from the school that asked his mother to come to a meeting the next day at I :00 at the District office with the Director. His mother could not make such a hastily scheduled meeting but called the Director several times and left messages with her secretary requesting it be rescheduled. She never received a response to her request. 88. On Wednesday, May 1, BN brought home another letter saying that since Ms. Nix had not come to the district office meeting, BN would again be transferred to Project Return. The school shared the content ofletters with BN, greatly upsetting him, telling him that he is no longer enrolled at the school and is not wanted. 89. BN's mother filed a request for an impartial hearing on May 10, 2002, requesting that BN be reenrolled at IS 126. On May 13, 2002, the school finally readmitted BN. 90. Overall, BN missed approximately three weeks of school without any instruction due to defendants' illegal actions. 91. JW is an 11 year-old boy with ADHD. He has had a Section 504 plan to receive medication in school for a number ofyears. 92. In or about the beginning of February 2002, JW was removed from his regular class due to behavior and placed into a dean's intervention room at the school. In the room, he sat alone or with one or more students, and got his homework and classwork assignments brought to him. He received no direct instruction.
17

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 18 of 28 PageID #: 18 93. JW remained in this intervention room for approximately one month. During this time, his parents never received notice ofthe suspension or removal, of a hearing or of a conference or manifestation determination. 94. During that time, the Deputy Superintendent had told his parents that he would not take JW out of the in-house suspension unless they filled out the paperwork requesting a Section 504 paraprofessional. JW' s parents did fill the papers out, but the Deputy Superintendent did not provide the para. Eventually, the school provided a para informally on its own. This para was not provided pursuant to a Section 504 plan, or as a result of any team meetings. Moreover, evaluations were not conducted. 95. After AFC contacted the principal, the school took him out of suspension. However, he could not return to his regular class (level 2) because his mother had a corporal punishment complaint against the teacher and he had gotten into a fight with other students in the class. He could not go into the level I class because he had previously had too many fights with the children in that class. As a result, he was put back into the level 3 class, even though he had previously been moved from that class because he was too high functioning. 96. On or about March 14, 2002, AFC filed an impartial hearing, which was subsequently re-fi!ed on March 25, because the Board did not receive the original request. After a hearing on April15, 2002, the hearing officer rendered a decision on the record in favor of the parent and ordered the district to transfer JW to another school with an appropriate class, as the school testified that there were no appropriate classes for him in their school.
18

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 19 of 28 PageID #: 19
97. Despite the order, the Defendants did not transfer JW until September 2002, after AFC and the central Defendants office oflegal services contacted the district numerous times during the summer.
98. Before the illegal exclusion or suspension, JW's academic performance was above average; by the time her returned to class, he was at-risk ofbeing held over. Additionally, JW had been marked absent for every day he had spent out of class in the Dean's intervention room. Eventually, AFC was able to remove these absences from his record. Further Allegations
99. The Defendants' website contains documents called "school profiles" for the school years 2000-2001, 1999-2000 and 1998-1999. Those documents reflect that for high school programs alone, approximately 55,000 students were "discharged" per year from the high schools. Upon information and belief, there were at least that many, if not more, students discharged during the 2001-2002 school year and students who have already been discharged during this September. Upon information and belief, some of these students are class members.
100. Upon information and belief, there are approximately 50,000 recorded suspensions per year in New York City. Upon information and belief, some of these students are class members.
I01. Upon information and belief, there are thousands of students in the Defendants' alternative programs and sites, who are not being tracked for discharge, suspension, expulsion and exclusion, including but not limited to offisite educational services, literacy programs and programs for parenting teens. Upon information and
19

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 20 of 28 PageID #: 20 belief, there are class members who are in those programs who have been excluded from regular schools because of their behavior and class members who have been excluded from those programs in violation oflaw. 102. The Defendants' websites reflect that a few thousand students were on the registers of high school outreach/alternative education centers. Upon information and belief, some of these students are class members. I03. Upon information and belief, thousands more students were suspended who are not reflected on the registers of high school outreach centers, and some of these students are class members. 104. Upon information and belief there are many class members who are "unofficially" excluded and who do not turn up in any reported statistics. 105. Based on documents received from the Defendants, there are at least 2,551 children receiving medication via Section 504 in the Community School Districts. This does not reflect all of the children who are receiving medication for a disability. Upon information and belief, some of the students who receive medication are class members. 106. Many of the children whom the District has subject to discharge, removal, informal exclusion, suspension and expulsion are children who have had long histories of behavior problems. I07. The behavior of many of these students demonstrates a possible need for special education, accommodations or other services, in that, inter alia, their behavior is consistent with the legal definition of disabilities, such as emotional disturbance or other health impaired, as set forth in the IDEA and state law.
20

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 21 of 28 PageID #: 21
108. In still other cases, on information and belief, the student's record demonstrates some other basis on which the District would be deemed to have knowledge that a disability might be present, such as an expression of concern by a teacher or parent, history of hospitalizations, use of medication, or former receipt of special education services.
109. The Defendants have not developed a system to ensure that Superintendents and Principals are held accountable for complying with federal, state and local laws and polices that protect the rights of class members.
11 0. The Defendants have never put any organized system in place to ensure that, before a child is excluded from school, discharged, suspended or expelled due to behavior that he or she is reviewed to determine whether there are indications of a disability and that the student's parent is provided information about rights and possible services.
111. The Defendants do not have adequate Section 504 policies and procedures that comport with relevant federal or state law or adequate systems of notifYing parents of rights under Section 504.
112. Class members are being irreparably harmed, in that their disabilities are going undetected and unaddressed; in that they are being punished for behavior that may relate to their disabilities; and in that they are not receiving appropriate educational services.
113. Defendants' failure to establish adequate procedures for identifying children with disabilities prior to exclusion, and for affording those children their rights under federal, state and local law, is a systematic legal violation. As such, it cannot be
21

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 22 of 28 PageID #: 22
effectively remedied through administrative hearings, which focus on one child a time and cannot result in systematic or classwide relief. Moreover, on questions oflaw, hearing officers do not have unique or specialized expertise. Accordingly, exhaustion of administrative remedies is not required in this case.
114. Defendants' practices of excluding children with disabilities from school without identifying them, affording them protections and educational services to which they are entitled under federal and state law is a systematic legal violation. As such, it cannot be effectively remedied through administrative hearings, particularly since class members have not have received adequate notice of their rights to protections and administrative remedies.
115. Defendants widespread practice of excluding class members from school without appropriate educational services cannot be remedied through administrative hearings.
116. Exhaustion is also not required because, in cases where a child is excluded, suspended, removed or expelled from class or school, the special education administrative process typically does not operate quickly enough- especially if either party chooses to take an appeal from the initial decision- to reach a conclusion before the expulsion or transfer actually takes place. Particularly in New York City and State, where administrative decisions are rarely, if ever, rendered in 45 days and the State Review Office often takes several months and even more than one year to respond to complaints.
22

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 23 of 28 PageID #: 23
117. Nor is exhaustion required for the state law claims; class members allege illegal policy and systemic violations and the remedies sought here would not be available through another state administrative process. CAUSES OF ACTION
118. Defendants have failed to adopt adequate policies and procedures to ensure that class members are "found" and afforded the services and procedural protections under the IDEA, 20 U.S.C.A. § 1400, et. seq.
119. Defendants have violated the IDEA by failing to identify, evaluate and offer services to class members within a reasonable time after becoming aware of behaviors and academic failure which indicated a disability, and which demonstrated the need for special education services, and by refusing to afford them the procedural projections to which they are entitled under the IDEA, 20 U.S.C.A. § 1400, et. seq.
120. Defendants have failed to adopt adequate policies and procedures to ensure that the class members are "found" and not subject to discrimination under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.
121. Defendants have violated class members' rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
122. Defendants have discriminated against class members in violation of the equal protection and due process provisions ofthe U.S. and New York Constitutions. U.S. Const., Amend. 14; N.Y. Const. Art. I § 11.
123. Defendants have violated class members' rights by failing to identify, evaluate and offer services within a reasonable time after becoming aware ofbehaviors
23

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 24 of 28 PageID #: 24
and academic failure which indicated a disability, and by refusing to comply with the requirements of Section 504.
124. Defendants have failed to adopt adequate policies and procedures to ensure that the plaintiff class members are afforded the due process procedures and accommodations required by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. and New York State Education law.
125. Defendants have denied class members access to school without due process oflaw, in violation of the Fourteenth Amendment to the United States Constitution, New York State Law and Chancellor's regulations.
126. Defendants have violated class members rights by excluding them from school in violation ofNew York State Education Law and Chancellor's regulations
127. Defendants have adopted, promulgated and implemented policies affecting class members that violate the Due Process Clause of the 14th Amendment, the IDEA and State law.
128. Defendants have violated the IDEA and State Law by failing to ensure that class members were provided FAPE and legally appropriate alternative education during periods of exclusion.
129. Defendants have violated New York State Education law and the due process clause ofthe New York State Constitution by adopting policies and practices that permit the permanent expulsion of class members.
130. Defendants have violated Section 504, the IDEA and State Law by illegally excluding, suspending, disciplining, expelling and discharging students with
24

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 25 of 28 PageID #: 25
disabilities from class and school based on their behavior, without identifying them as disabled and affording them the procedural protections due under law. RELIEF
131. WHEREFORE, plaintiffs request that this Court: a. Assume jurisdiction of this case; b. Issue a declaratory judgment that Defendants have violated plaintiffs' rights as set forth above; c. Issue an injunction restraining the Defendants from failing to comply with federal and state law and Chancellor's Regulations; d. Enter a preliminary injunction requiring that the District immediately enroll NT in an appropriate small program, pending a full determination of her eligibility for special education or Section 504 eligibility, and any administrative or judicial proceedings that may follow such determination; e. Award to NT and the other named plaintiffs compensatory educational services and compensatory damages; f. With respect to class members, establish and maintain policies and procedures designed to ensure that they are identified and provided with all mandated services and procedural protection and are not excluded from school. g. With respect to class members not already excluded, discharged, suspended or expelled, enter a permanent injunction requiring Defendants to establish and maintain, on an ongoing basis, a system sufficient to ensure that:
25

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 26 of 28 PageID #: 26 1. The "child-find" requirement and all other relevant laws requiring due process prior to exclusion, removal, discharge, suspension or expulsion from school are fully implemented; ii. For children whom the district knows, or should know, to have a disability, the child is not excluded, removed, suspended, discharged or expelled from any class or school based on behavior before an adequate determination is made as to whether a disability is present (and until any administrative appeals and judicial review are completed); is transferred to an alternative school or class or otherwise disciplined only in a manner consistent with applicable law; and is afforded all other procedural and substantive rights with respect to special education. h. With respect to class members already excluded, discharged, suspended or expelled, over the past three school years, enter a permanent injunction requiring the Defendants to ensure that: i. With the consent of the parent, the child-find requirements are fully implemented; u. For those children who are determined to have disabilities, the child is afforded all other procedural and substantive rights with respect to special education, Section 504, due process and educational services set forth in applicable law.
26

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 27 of 28 PageID #: 27

i.

With respect to class members already excluded, discharged, suspended or

expelled without due process as required by the U.S. Constitution and/or in violation of

state or local law, i. Locate and offer immediate reinstatement to the former program or locate another appropriate program; n. Provide compensatory educational services.
j. With respect to all class members, enter a permanent injunction requiring

Defendants to

1. Refrain from denying class members legally adequate educational services without due process oflaw;
ii. Develop a system to hold Superintendents and Principals

accountable for complying with relevant federal, state and local

laws and polices designed to protect the rights of class members

from illegal exclusion and denial of educational services, which shall include, but not be limited to, (1) training of personnel sufficient to ensure that they know and understand the applicable

laws and (2) paying for an independent monitor to oversee,

develop and implement the system and track removals and

identification of children. iii. Disseminate notices to parents of all students expelled, discharged,
suspended or otherwise excluded informing them of this action and

providing them with plaintiff counsel's contact information.

27

• • Case 1:02-cv-05118-ENV-MDG Document 1 Filed 09/20/02 Page 28 of 28 PageID #: 28

k. Award to Plaintiffs their costs and attorneys fees; and

I.

Grant such other and further relief as may be appropriate.

Dated:

September 20, 2002 New York, New York

an Randee J. Wal Attorneys for PI Advocates for Chi! ren ofNew York 151 W. 30th Street, 5th Floor New York, New York 10001 (212) 947-9779

28

 
 Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 1 of 56 PageID #: 163

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

NT;

EB by and through his mother and next friend, VP;

LB1 by and through his mother and next friend, BB; Civ. No.: CV 02 5118 (CJS)

HG by and through his mother and next friend, LO; KSG by and through his mother and next friend, VG; AJ by and through his guardian and next friend, IF;

THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE, DECLARATORY AND OTHER RELIEF

IP by and through his mother and next friend, DP;

SM by and through his father and next friend, KM;

JW by and through his mother and next friend, YC;

DR by and through his mother and next friend, NR;

on behalf of themselves and all others similarly situated,

Plaintiffs,

- against -

NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; and JOEL KLEIN, in his official capacity as Chancellor of the New York City School District,
Defendants.

I. PRELIMINARY STATEMENT 1. This is a civil rights class action brought pursuant to 42 U.S.C. § 1983, the
14th Amendment to the U.S. Constitution, the Individuals With Disabilities Education Act

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 2 of 56 PageID #: 164
(“the IDEA”), 20 U.S.C. § 1400, et. seq., Section 504 of the Rehabilitation Act of 1973 (“Section 504”) 29 U.S.C. § 794 and the Americans with Disabilities Act of 1990, 42 ("ADA") U.S.C. § 12132, et seq. by children with disabilities who seek declaratory and injunctive relief based on their illegal exclusion from the public schools and denial of the educational services to which they are entitled under law.
2. Exclusion as used in this Complaint is defined as any practice that results in the exclusion of a disabled child from school without due process of law and may be labeled by Defendants and their agents as exclusions, discharges, suspensions, expulsions or transfers.
3. Plaintiffs allege that the Defendants and their agents and employees instituted a policy, practice and custom pursuant to which plaintiffs, all of whom are children with disabilities under the age of 21, are illegally excluded from school and denied educational services to which they are entitled under federal and state law. Plaintiffs have missed days, weeks and months of educational services due to the Defendants’ conduct.
4. Although the circumstances underlying the plaintiffs’ exclusions and their disabilities are not identical, all plaintiffs’ share three key facts which are at the heart of this case: (a) they were excluded from school or their educational program on at least one occasion; (b) this exclusion was not conducted legally and with sufficient procedural protections due under federal and state law and (c) they were denied educational services after the exclusion(s) to which they were entitled under federal and state law. II. JURISDICTION
5. This Court has jurisdiction under 28 U.S.C. § 1331, in that claims are asserted under the laws of the United States; under 28 U.S.C. § 1343(a), in that claims are asserted
2

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 3 of 56 PageID #: 165
under laws providing for the protection of civil rights; under 42 U.S.C. § 1983, in that Defendants violated Plaintiffs’ rights under color of state law; under the IDEA, 20 U.S.C. § 1400 et seq., as amended by Pub. L. No. 105-17 at § 615(I)(3)(A) (1997), in that this action presents claims under the IDEA; under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in that this action presents claims under Section 504; and under the Americans with Disabilities Act of 1990, 42 U.S.C. §12132, et seq., in that this action presents claims under the ADA. This Court has jurisdiction over Plaintiffs’ pendent state law claims pursuant to 28 U.S.C. § 1367. Plaintiffs also seek declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
6. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
7. If successful, the Plaintiffs are entitled to costs and attorneys fees under 42 U.S.C. § 1988 and 20 U.S.C. § 1400, et seq. III. PARTIES
Plaintiffs 8. Plaintiff NT is an 18-year-old girl with disabilities who lives in New York City and has attended the New York City public schools. 9. Plaintiff EB is a 6-year-old boy with a disability who resides in New York City and attends a New York City public school. He brings this action through his mother and next friend, VB. 10. Plaintiff LB1 is a 17-year-old student with a disability. LB1 lives in New York City and attends New York City school. He brings this action through his mother and next friend, BB.
3

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 4 of 56 PageID #: 166
11. Plaintiff HG is a 17-year-old student with a disability who lives in New York City. He brings this action through his mother and next friend, LO.
12. Plaintiff KSG is a 14-year-old student with traumatic brain injury (TBI) and Attention Deficit Disorder ("ADHD"). He resides in New York City and attends New York City schools. KSG brings this action through his mother and next friend, VG.
13. Plaintiff AJ is a 10-year-old boy with a disability who resides in New York City and attends a New York City public school. He brings this action by his legal guardian and next friend, IF.
14. Plaintiff SM is 16-year-old boy with a disability who resides in New York and has attended New York City public schools. He currently attends a residential school in New York State, pursuant to an Individualized Education Program ("IEP") developed by a New York City school district. He brings this action by his father and next friend, KM.
15. Plaintiff IP is a 16-year-old student with a disability who resides in New York City and attends a New York City public school. He brings this action through his mother and next friend, DP
16. Plaintiff JW is an 11-year-old boy with ADHD who lives in New York City and attends a New York City public school. He brings this action by his mother and next friend, YC.
17. Plaintiff DR is a 1st grade student with a significant disability and behavioral issues. He lives in New York City and attends New York City school. He brings this action through his mother and next friend, NR.
Defendants 18. Defendant The NEW YORK CITY BOARD OF EDUCATION (“the Board of Education” or “the Board” or the “BOE”) was the Local Educational Agency (“LEA”)
4

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 5 of 56 PageID #: 167
under the IDEA charged with ensuring that children are provided with a free, appropriate public education in New York City under federal and state law. It was the official body charged with the responsibility for developing policies with respect to the administration and operation of the public schools in the City of New York. N.Y. Educ. Law §§ 2590, 2590-g (McKinney 1980). The Board was, and its successor is, the recipient of federal financial assistance under the IDEA.
19. Defendant The NEW YORK CITY DEPARTMENT OF EDUCATION (“Department” or the “DOE”) is the newly formed government office or LEA charged with ensuring that children are provided with a free, appropriate public education in New York City. It is also the official body charged with the responsibility for developing policies with respect to the administration and operation of the public schools in the City of New York. N.Y. Educ. Law §§ 2590, 2590-g (McKinney 1980). The DOE is the recipient of federal financial assistance under the IDEA.
20. Defendant JOEL KLEIN is the Chancellor of the New York City School District (“the Chancellor”) and as such is entrusted with the specific powers and duties set forth in N.Y. Educ. Law § 2590-h (McKinney 1930), including the power and duty to control and operate all special education programs and services conducted in New York City Schools and programs. He is sued here in his representative, and not his individual, capacity. IV. CLASS ACTION ALLEGATIONS
21. Plaintiffs’ claims for relief are brought on their own behalf and on behalf of all those similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b). Defendants have acted and refused to act on grounds generally applicable to the named
5

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 6 of 56 PageID #: 168
and class plaintiffs, making appropriate declaratory and injunctive relief as to the class as a whole.
22. The class represented by the named plaintiffs is comprised of all students with disabilities aged 3-21, who have been, are being and will be excluded from school in violation of federal and state law and denied educational services to which they are entitled under law after the exclusion.
23. The class is so numerous that joinder of all members is impracticable. Upon information and belief, there are thousands of children with disabilities who are members of the class.
24. In addition, upon information and belief, joinder is impracticable because all of the members of the class are disabled children, and many members of the class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
25. There are questions of law and fact in common among the named plaintiffs and the members of the class they seek to represent and those questions predominate over all other questions affecting individual class members. All of the plaintiffs have the same federal and state statutory rights to receive regular and special education services and procedural protections. All of the plaintiffs and their parents have procedural and substantive rights under the federal law. Additionally, all plaintiffs have the same federal constitutionally protected right not to be arbitrarily denied their rights to educational services and the same rights to due process under federal and state law.
26. The claims of the named plaintiffs are similar to those of the class they seek to represent, in that they, as with the other members of the class, arise from the same
6

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 7 of 56 PageID #: 169
conduct – the illegal exclusion from school and denial of class members’ rights to educational services—that gives rise to the class members’ claims
27. The named plaintiffs will adequately represent and protect the interests of the class. They have no interests in conflict with the other members of the class; plaintiffs and class members seek to ensure that they will not be subject to illegal exclusions and denial of educational services to which they are entitled. Therefore, the relief sought by named plaintiffs will benefit all members of the class.
28. By illegally excluding class members from school and denying them educational services and due process to which they are entitled, Defendants have acted on grounds generally applicable to members of the class. As a result, declaratory and injunctive relief with respect to the entire class is appropriate.
29. A class action is the appropriate method for a fair and efficient adjudication of this controversy.
30. Counsel for the named plaintiffs are experienced in federal class action litigation and will vigorously pursue this action in the interest of the class. V. FURTHER ALLEGATIONS
A. THE RIGHT TO EDUCATIONAL SERVICES IN NEW YORK STATE 31. New York State Education Law provides that any person over five and under 21 years of age, who lives in New York City and has not received a regular high school diploma, is entitled to attend a public school. N.Y. Educ. Law § 3202(1). 32. New York State Education Law also mandates full-time instruction for students until the age of 16, and allows certain jurisdictions to extend the age of required school attendance. N.Y. Educ. Law § 3202. New York City has opted to extend the
7

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 8 of 56 PageID #: 170
compulsory school age to 17; New York City Chancellor’s Regulation A-101 provides that all students who turn 17 after July 1st are required to attend school for the following school year under the compulsory education law.
33. The New York State Commissioner’s Regulations define “full-time instruction” to mean at least 5 ½ hours of instruction per day. 8 N.Y.C.R.R. § 175.5.
34. Academic standards for high school graduation were substantially revised by relatively new State and City policies and, upon information and belief, are now significantly more stringent than in previous years. Students are now required to earn a Regents’ diploma by earning a certain number of high school units or credits and passing exit exams.
35. The New York State Commissioner’s Regulations require that each school district offer all students grades 9 through 12 the opportunity to meet the requirements to take courses to prepare for a Regents diploma. 8 N.Y.C.R.R. § 100.2(e).
36. New York State law spells out a number of services to be provided to students if they are struggling academically, truant, or having behavior problems.
37. Students in grades 7 through 12 are supposed to receive Guidance Services, which should entail an annual review of their educational progress and career plans by school counselors (individually or in small groups), instruction about careers, and counseling. Guidance services can also be used to assist students who exhibit any attendance, academic, behavioral or adjustment problems and to encourage parental involvement. 8 N.Y.C.R.R. § 100.2(j).
38. Students who are truant or struggling academically are also eligible to receive Educationally Related Support Services (“ERSS”). Children with disabilities are
8

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 9 of 56 PageID #: 171
specifically eligible for ERSS services, which may include counseling, speech and language improvement services, small group instruction, modified curricula, individualized tutoring and other such strategies that have demonstrated success. N.Y. Educ. Law § 3602(32); 8 N.Y.C.R.R. § 100.2(v).
39. All high school students are entitled to receive Academic Intervention Services (“AIS”). AIS are intended to assist students who are at risk of not achieving the State learning standards in English language arts, mathematics, social studies and/or science, or who are at risk of not gaining the knowledge and skills needed to meet or exceed designated performance levels on State assessments. 8 N.Y.C.R.R. § 101.1(g).
40. In New York State, students are entitled to alternative instruction during periods of suspension. New York Education Law Section 3214(5).
41. Under the NYC Chancellor’s Regulations, all students who are suspended are entitled to homework, class work and the right to take standardized exams and make-up tests.
B. PROTECTIONS FROM EXCLUSION, EXPULSION AND DISCHARGE UNDER THE U.S. CONSTITUTION, STATE & LOCAL LAW
U.S. Constitution 42. The Due Process Clause of the 14th Amendment to the Constitution of the
United States prohibits public schools from excluding students from school without due process.
9

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 10 of 56 PageID #: 172
State Law on Suspension, Transfer and Dropping from Enrollment 43. Section 3412 of the New York Education Law sets forth specific due process
protections that must be provided to students and parents before students are removed from a classroom or suspended from school.
44. Section 3214 provides for different levels of due process for children who are removed from class, suspended for five days or less or suspended for more than five days. On its face Section 3214 does not expressly permit expulsions (or permanent exclusions) from school.
45. Among other things, children who are suspended for five days or more, are entitled to written notice, an opportunity for a hearing, the right to cross-examine witnesses, the right to receive a list of free or low cost legal service providers and the right to an appeal.
46. Section 3214 directs Defendants to develop a Code of Conduct that, among other things, sets out the conduct for which students can be subject to disciplinary proceedings. Defendants have adopted Citywide Standards of Disciplinary and Intervention Measures (the Discipline Code) and New York City Chancellor’s Regulation A-443, which contain the procedures and standards for student suspensions and expulsions. Some of these provisions were enacted to comply with the terms of a settlement of another federal case named BOE v. Board of Education, 80 Civ. 2829 (S.D.N.Y. 1982), which was brought on behalf of a class of non-disabled high school students who were being suspended and expelled without due process and denied educational services.
10

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 11 of 56 PageID #: 173
47. In New York State, a student cannot be suspended from school unless he is disruptive or violent as defined by Section 3214 of the New York Education Law.
48. Truancy, poor grades, age or low academic performance are not grounds for expulsion, removal or suspension under the New York State Education Law or the Chancellor’s policies except for very limited circumstances set forth in New York Education Law § 3202.
49. Section 3202(1)(a) provides that schools are permitted to drop from enrollment a student over compulsory school age (between the ages of 18-21) if the student has been absent for 20 consecutive school days. However, before a student can be dropped from a register, certain procedures must be followed, such as notice of the right to stay in school until the age of 21 and opportunity for a conference. N.Y. Educ. Law § 3202.
50. New York State Education Law section 3214 also protects students without disabilities from being involuntarily transferred. Before a principal may initiate an involuntary school transfer, a parent must be provided written notice and an opportunity for a hearing. N.Y. Educ. Law § 3214(5). A transfer cannot be effectuated until the hearing decision is rendered. This law does not include children with disabilities, presumably because they have protections from involuntary transfer under the pendency provisions of the IDEA.
51. The New York State Law and regulations governing special education also prohibit students with disabilities from being involuntarily transferred without notice, an opportunity for due process proceedings (a hearing, appeal and court) and the right to remain in the child’s current school until the resolution of the proceedings.
11

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 12 of 56 PageID #: 174
52. The New York State Department of Education has also adopted a policy that prohibits the involuntary transfer of students with disabilities who are suspended.
C. FEDERAL DISABILITIES LAWS IDEA
53. In addition to entitlements and process due under the New York State Laws and regulations, children with disabilities and their parents have significant entitlements and protections under the IDEA.
54. In enacting the IDEA, Congress specifically addressed in its findings the need to correct the historical exclusion of children with disabilities from public education: “Before…the enactment of the Education for All Disabled Children Act of 1975…more than one half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity.” 20 U.S.C. § 1400(2)(B). Congress also found that “1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers.” 20 U.S.C. § 1400(2)(C).
55. Congress recognized that without federal pressure school districts frequently did not serve disabled children properly, but instead excluded them from school, warehoused them in self-contained special education classes, or left them in regular classes with no services to ensure that they could learn. Honig v. Doe, 484 U.S. 305, 308 (1988).
12

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 13 of 56 PageID #: 175
56. “Disabilities,” as defined by the IDEA, include various cognitive, emotional, behavioral and physical impairments, such as learning disabilities and emotional disturbances. See 34 C.F.R. § 300.7(a)(9).
57. The IDEA requires that states and local education agencies ensure that each child with a disability is provided FAPE. FAPE consists of special education and related services designed to meet the child’s unique needs, and provided in conformity with certain procedural safeguards specified by the Act.
58. The IDEA contains extensive procedural and substantive requirements for parents and students with disabilities. Parents are supposed to receive notices of all of the IDEA’s procedural due process requirements.
59. A school district cannot stop providing educational services to a child or change a child’s placement without notice and an opportunity to object to the cessation of services by utilizing a system of administrative due process, which can include a hearing or mediation.
60. In the event a parent seeks due process, their child has a right to stay put or remain in the current educational placement.
61. In enacting the re-authorized IDEA in 1997, Congress also emphasized the importance of preventing suspensions and expulsions of children with disabilities as a disciplinary measure: “[R]esearch, demonstration, and practice over the past 20 years in special education and related disciplines have demonstrated that an effective educational system now and in the future must…create school-based disciplinary strategies that will be used to reduce or eliminate the need to use suspension and expulsion as disciplinary options for children with disabilities.” 20 U.S.C. § 1451(a)(6)(H).
13

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 14 of 56 PageID #: 176
62. Even children who are suspended or expelled cannot be denied FAPE for more than ten days in any school year.
63. Students with disabilities have the right to be identified and evaluated if the school personnel know or should reasonably suspect that the child has a disability, based on their behavior and/or performance, or expression of concern of a parent or school staff member. Section 504 & the ADA
64. Section 504 of the Rehabilitation Act of 1973 (Section 504) protects students with disabilities from discrimination by school districts that receive federal funds.
65. Students with disabilities and their parents are entitled to notice of their rights under Section 504 as well as a notice before a district stops services or changes a child’s placement or school.
66. Section 504 protects a child from being disciplined for behavior that is a manifestation of a disability and protects students with disabilities from discrimination even if a school district has not identified the student as disabled.
67. Students with disabilities are entitled to FAPE under Section 504. 68. The AD also protects children with disabilities from discrimination based on their disabilities. D. NEW YORK STATE SPECIAL EDUCATION LAW 69. New York State Education Law Section 4400 et. seq., and the regulations promulgated thereunder at 8 NYCRR 200 and 200.1 also govern delivery of special education services in New York State. 70. The law and regulations implement provisions of the IDEA and, in certain areas, provide expanded protections for disabled students.
14

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 15 of 56 PageID #: 177
VI. THE VIOLATIONS ALLEGED HEREIN ARE SYSTEMIC 71. Congress enacted the IDEA to ensure that students with disabilities have
meaningful access to public education. States who participate in the IDEA receive substantial federal funds in exchange for their agreement to provide a free appropriate public education to all disabled children in the state, and to comply with the IDEA's procedural and substantive mandates.
72. Although the plaintiffs have different disabilities and the circumstances underlying their exclusion are not identical, they are all being subject to the same illegal practices , to wit they are being excluded from school without due process and deprived of their legally mandated educational services for days, weeks and months and, upon information and belief, years at a time.
73. Defendants, their agents and employees should not benefit from the different labels they place on the exclusion of children, which has resulted in widespread violation of the law. Regardless of whether a child’s exclusion is labeled a suspension, expulsion, discharge or transfer or a parent is merely asked to keep a child at home, the plaintiffs are suffering from the same type of exclusion and denial of educational services.
74. The exclusion without due process amount to suspensions, expulsions and transfers without any process or in the absence of legally sufficient process and may include but is not limited to failure to provide notice of due process and other federal substantive rights under the IDEA and Section 504, failure to provide accurate notice, failure to afford an opportunity for a hearing, untimely process or excluding students for reasons that are not legally authorized or of which they had no prior notice.
15

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 16 of 56 PageID #: 178
75. The denial of educational services comes in the form of complete denial -children are completely out of school -- or they are kept in “alternative” centers that do not provide special education services or minimally adequate regular instruction.
76. Upon information and belief, most, if not all, of these centers and schools do not meet the minimum requirements for educational services under law and do not provide special education services. Children are often denied instruction, do not get relevant class work, are not afforded the ability to learn the regular curriculum or earn credits toward their high school diplomas. After spending weeks or months in these centers, the students fall completely behind in their schoolwork and behavior worsens. For children who were already at-risk of educational failure, these settings are often the next step toward dropping out of school.
77. Upon information and belief, the Defendants have failed to adopt appropriate policies and procedures to ensure that the individual schools and district or regional administrators are not excluding the plaintiffs from school and denying them legally mandated educational services.
78. Upon information and belief, Defendants have failed to ensure that school administrators and teachers are properly trained in the relevant laws and due process requirements that protect children from illegal exclusions and denials of educational services.
79. Upon information and belief, Defendants have failed to supervise teachers, administrators and other school system staff to ensure that they are not excluding plaintiffs from school and denying them educational services in violation of law.
16

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 17 of 56 PageID #: 179
80. Upon information and belief, Defendants have failed to ensure that children are provided legally adequate instruction and special education services after they are suspended from school.
81. Upon information and belief, Defendants have also failed to institute a system for tracking these students and the underlying processes, making it easy for schools and districts to violate children’s rights.
82. Upon information and belief, Defendants have not developed a system to ensure that school administrators and teachers are held accountable for complying with federal, state and local laws and polices that protect the rights of class members from being excluded from school and denied substantive and procedural protections of the law.
83. Upon information and belief, Defendants have adopted a policy and practice of transferring children with disabilities from one school to another, without affording them the opportunity for notice, a hearing and an opportunity to stay in a particular school until the resolution of the administrative proceedings.
84. Since the many of the plaintiffs’ exclusions are not being formally called “suspensions or expulsions” which would normally be tracked, it is difficult to identify the exact number of children who are being subject to the Defendants’ illegal conduct.
85. Upon information and belief, each year there are approximately 165,000 children with identified disabilities receiving special education services in New York City and thus, there are thousands of children who have standing to challenge the conduct complained of herein as they are all at risk of illegal exclusion and denial of educational services.
17

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 18 of 56 PageID #: 180
86. The statistics reported by the DOE to the New York State Education Department for under their IDEA reporting obligations (the PD-5 Reports) show that thousands of disabled children are not finishing school. They are being classified either as “drop-outs” or “discharges”/ "moved – known to be continuing” in the DOE reports to the New York State Education Department.
87. In the 2000-2001 school year, for example, the DOE reported 15,174 children ages 14-21 were exiting the special education system. This report alleges that 3,714 students were “discharged”/ "moved- known to be continuing,” 5,365 students dropped out and 988 “reached maximum age.” Only 67 disabled students earned a Regents’ diploma, 1,496 earned local diplomas and 150 earned high school equivalency diplomas.
88. For the 2001-2002 school year, 14,135 children exited the system – upon information and belief, approximately 10,000 of those children either “dropped out” or were discharged. Upon information and belief, class members are being counted as “drop outs or discharges” when they were, in fact, illegally excluded from school.
89. The DOE published statistics called “Student Mobility Reports,” for the years 2000-2001, 1999-2000 and 1998-1999. Those documents reflect that for high school programs alone, during each year, approximately 55,000 students were “discharged” per year from the high schools. Upon information and belief, some of these students were disabled and were improperly discharged.
90. Upon information and belief, these discharge figures underestimate the number of children who were discharged, as they do not represent a complete breakdown of the type of students discharged from schools. Moreover, some students, like HG, NT and EB are informally discharged without being marked as discharged by their schools.
18

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 19 of 56 PageID #: 181
91. Upon information and belief, others are being labeled as formal suspensions, but are still removed in violation of law and denied educational services to which they are entitled.
92. In addition to the class members and additional children alleged herein, many other parents have contacted plaintiffs’ counsel concerning their children’s illegal exclusion and denial of educational services.
93. Defendants’ actions, lack of action and the conduct of their agents amounts to systemic legal violations.
94. Defendants have been on notice of many of these many violations for several years. They have chosen to turn a blind eye to the practices of district administrators and principals and have neglected their duty to ensure that the appropriate administrators are aware of their legal obligations to class members.
95. Counsel for plaintiffs released a report in November 2002 indicating that thousands of children were being discharged from New York City public schools and raised questions concerning the discharge of students with disabilities. Defendants’ or their counsel never responded to this report.
96. Counsel for plaintiffs have brought the problems of individual children to the attention of Defendants’ counsel. In most cases, counsel has not intervened in a timely fashion to prevent irreparable harm. VII. THE EXPERIENCE AND FACTS CONCERNING THE NAMED
PLAINTIFFS 97. NT, has been diagnosed with bipolar disorder, and she has experienced
behavioral and academic difficulties for years. In October 2001, after being illegally
19

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 20 of 56 PageID #: 182
discharged from Lower Manhattan Outreach, and missing at least four months of school, NT was finally enrolled in Borough Academy ("BA"). Upon information and belief, NT did not receive any special education services while at BA.
98. In January 2002, NT was hospitalized for her bi-polar disorder. Upon her discharge from the hospital, NT's grandmother attempted to reenroll NT in BA. However, NT's grandmother was informed that NT was not permitted to reenroll and that she would need to wait till the Fall to re-register. At no time did the school inform NT or her guardian of her rights regarding appropriate educational placements. In fact, NT's mother was encouraged to sign her out of school. No services were offered to NT and she missed the entire Spring semester of school.
99. In September 2002, NT and her mother were told by BA that due to NT’s behavior she was not allowed to return to school because BA did not have the resources to address her needs. At no time during or prior to the 2001-2002 school year did any of the Defendants or their employees or agents refer NT for an evaluation under the IDEA or Section 504 or provide her with the services and protections due to her under federal and state law.
100. On September 11, 2002, Counsel wrote a letter to the Chancellor’s attorney informing him of the situation and requesting immediate placement. Two weeks later, NT was still out of school, and she filed this action. After filing this action, NT was evaluated by the Committee on Special Education (“CSE”) and reinstated to a fifth school. NT started having difficulties there due to her medication and had to be readmitted into the hospital in November 2002.
20

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 21 of 56 PageID #: 183
101. On January 9, 2003, AFC informed the Defendant’s counsel that NT had requested home instruction upon leaving the hospital on November 11, 2002, but had not received instructional services. Even after Defendants were notified through their counsel, NT did not get home instruction for several weeks.
102. In violation of law, NT did not receive adequate due process prior to her exclusions from school: she was excluded for a reason not authorized by law, NT and her parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion, were not offered the opportunity for a hearing and not afforded the other substantive and procedural protections to which they were entitled under federal and state law. After the schools excluded her illegally on a number of occasions, she was denied educational services for months in violation of federal and state law. EB
103. In the Spring of 2001, EB, a 6-year-old boy, is classified as emotionally disturbed. In September 2002, EB was suspended from school. His mother was never provided notice or informed of her rights regarding the suspension. While suspended, EB did not receive any instructional services at all. When EB returned to school, he was placed inappropriately in a self-contained class.
104. In violation of law, EB did not receive adequate due process prior to his exclusion from school: EB and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion, were not offered the opportunity for a suspension hearing. After the school excluded him, he was denied educational services for one month in violation of federal and state law.
21

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 22 of 56 PageID #: 184
LB1 105. LB1, a17-year-old student, has an IEP that classifies him as Learning
Disabled and recommends General Education with support services. In September 2002, LB1 was discharged from high school and has been out of school since that time. Upon being discharged, school officials told LB1 that he could no longer attend his high school because he was too old and did not have enough credits. LB1's mother was never informed of his rights regarding his discharge from school. LB1 has missed 8 months of his school services this year. In April 2003, AFC filed an Impartial Hearing under the IDEA and Section 504 (“Impartial Hearing”) on behalf of LB and his parent. An Impartial Hearing is a mechanism by which parents and children with disabilities may try to raise their complaints about service provision under the IDEA and Section 504.
106. In violation of law, LB1 did not receive adequate due process prior to his exclusion from school: LB1 was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for several months in violation of federal and state law. HG
107. HG, 17-year-old student, is classified as learning disabled. In the Spring of 2002, HG was told he had to transfer from John Jay High School to another school. HG's parents were never informed of his rights regarding the transfer. In the Fall of 2002, HG's mother, LO, attempted to enroll him in the Accorn School. Upon his arrival at Accorn, he was told he was not permitted to enroll. As a result, he was out of school for
22

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 23 of 56 PageID #: 185
over 8 months. In March 2003, AFC filed an Impartial Hearing on behalf of HG and his mother. Although the Impartial Hearing Officer (“IHO”) issued a decision in HG's favor, HG is still out of school and the IHO’s order requiring that HG be placed on home instruction for the remainder of the school year has not been enforced.
108. In violation of law, HG did not receive adequate due process prior to his exclusion from school: HG was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for several months in violation of federal and state law. KSG
109. KSG, a14-year-old boy, is learning disabled, has ADHD and has a TBI. Over the past year, KSG was repeatedly suspended, illegally transferred, and warehoused in inappropriate suspension centers without services. Upon information and belief, his parents were not notified by the Department of KSG's rights regarding transfers and suspensions. KSG has missed more than fifty days of appropriate instruction and in May 2003 was still in an alternative center that was not providing appropriate educational services. AFC filed an Impartial Hearing on behalf of KSG and his mother and are waiting for a decision. In the meantime, KSG is in a private school setting for the Summer.
110. In violation of law, KSG did not receive adequate due process prior to his exclusion from school: KSG and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusions, were not
23

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 24 of 56 PageID #: 186
provided sufficient process for the suspension and were not provided adequate notice or opportunity for a hearing prior to his transfer. After the school excluded him illegally on a number of occasions, he was denied educational services for more than two months in violation of federal and state law. AJ
111. AJ, 10-year-old boy, is Autistic. From September until November 2002, AJ sat in a room in P178, with only his paraprofessional because the school and Superintendent of District 23 refused to implement AJ’s IEP. He was excluded from all of his classes. AJ's guardians were never informed of his rights regarding this exclusion. In September 2002, AFC filed an Impartial Hearing on behalf of AJ and his guardian. Although the IHO ordered that AJ be restored to his class with his IEP services, the District and the school did not comply with that order. In October 2002, the IHO issued a second order directing AJ to be placed in his class. Finally, two days after the Second Amended Complaint was filed naming AJ as a Plaintiff, Defendants reinstated AJ. He had missed more than two months of instruction.
112. In violation of law, AJ did not receive adequate due process prior to his exclusion from school: AJ was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for several months in violation of federal and state law.
24

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 25 of 56 PageID #: 187
SM 113. SM, a 16-year-old student, has a learning disability. Although SM took
medication for his ADHD, he was decertified from special education in 1999 and offered no services after that time. SM had been subject to numerous suspensions and behavioral referrals throughout his school career. His father was never provided with adequate notice of his rights. In November 2001, SM was assaulted on two different occasions at school. SM’s father requested a safety transfer, but he was out of school for several weeks before a new school was provided. In January 2001, AFC filed an Impartial Hearing on behalf of SM and his father. As a result, SM is currently attending a residential school.
114. In violation of law, SM did not receive adequate due process prior to his exclusion from school: SM was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him, he was denied educational services in violation of federal and state law. IP
115. IP, 16-year-old student, received Special Education Teacher Support Services ("SETSS") for his learning disabilities. In March 2003, after being accused of a suspendable offense, IP was referred to two alternative placements, neither of which provided any instruction. As of April 2003, IP has not received a decision or disposition on his suspension. At some point, he or his mother was verbally informed that IP had been transferred to another school. In April 2003, AFC contacted the Defendants’
25

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 26 of 56 PageID #: 188
counsel concerning this child. IP was still being denied educational services until this complaint was filed.
116. In violation of law, IP did not receive adequate due process prior to his exclusion from school: IP and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not provided adequate and timely process. After the school excluded him illegally, he was denied educational services for several weeks in violation of federal and state law. JW
117. JW, 11-year-old boy, has ADHD and has a Section 504 plan to receive medication in school. In February 2002, JW was removed from his regular class due to behavior and placed into a dean’s intervention room at the school for approximately one month. He received no direct instruction there and was segregated from his peers. During this time, his parents never received notice of the suspension or removal, of a hearing or of a conference or manifestation determination review. After AFC contacted the principal, the school took JW out of suspension but he was not permitted to return to his regular class; instead, he was sent to a class of lower functioning students. In March 2002, AFC filed a request for an Impartial Hearing. Following the hearing, a decision was issued in favor of the parent and the district was ordered to transfer JW to another school with an appropriate class. Despite the order, the Defendants did not transfer JW until September 2002, after AFC and the Defendants’ office of legal services contacted the district numerous times during the summer.
118. In violation of law, JW did not receive adequate due process prior to his exclusion from school: JW and his parent/guardian were not provided notice of their
26

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 27 of 56 PageID #: 189
substantive and procedural rights under federal and state law prior to exclusion and were not provided a hearing prior to his exclusion. After the school excluded him illegally, he was denied educational services for more than one month in violation of federal and state law. DR
119. DR, 1st grade student, is disabled. He spent much of the 2002-2003 school year out of his class, in the in-house suspension room and time-out rooms. His mother never received any notice or information about DR's rights regarding these exclusions. In March 2003, the school called the hospital and DR was admitted for psychiatric observation. In April 2003, he was discharged from the hospital and eventually enrolled in a Day Treatment Program. He missed a few days of school, however, because of a lack of appropriate bussing.
120. In violation of law, DR did not receive adequate due process prior to his exclusion from school: DR and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to his exclusions and were not provided a hearing prior to his exclusions. After the school excluded him illegally on a number of occasions, he was denied educational services for weeks at a time in violation of federal and state law. VIII. FACTS CONCERNING ADDITIONAL MEMBERS OF THE CLASS
121. Many children with disabilities in New York City are being denied access to legally mandated education and denied due process before being excluded from school due to Defendants’ conduct. The students with disabilities who appear as named plaintiffs and those whose stories are set forth herein demonstrate that there are systemic
27

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 28 of 56 PageID #: 190
policies and practices in New York City that violate federal and state law and that are resulting in irreparable harm to vulnerable disabled children.
122. Some children are being excluded and labeled as “suspended,” others are labeled as “discharged” or “transferred,” and some are being labeled as merely having accepted a change in placement for their students. Some of these exclusions are done formally, while others are informal.
123. Regardless of the label placed on the specific action by the Defendants, all class members are being subject to the same type of conduct: illegal exclusion from school and denial of adequate due process and educational services to which they are entitled. Examples of potential class members follow. LB2
124. LB2 is a 9-year-old child with a disability. He has an IEP classifying him as “emotionally disturbed” which recommends a special class. He was suspended from IS 188 in District 21 for an incident that occurred on April 4, 2003. The district sent notice to the wrong address and, as a result, no hearing was made available for ten days, until April 14, 2003. LB2 was not permitted to attend school after the date of the incident and did not receive any educational services. On April 21, 2003, AFC contacted Defendants’ counsel concerning LB2’s situation and were informed that he could return to school on April 28, 2003, the first day after the spring vacation.
125. In violation of law, LB did not receive adequate due process prior to his exclusion from school: LB and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to his exclusion and were not provided a hearing prior to his exclusion. After the school excluded him
28

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 29 of 56 PageID #: 191
illegally, he was denied educational services for weeks in violation of federal and state law. AC
126. AC is a 16-year-old student with a disability. He has an IEP classifying him as learning disabled. In the Spring of 2001, AC was improperly discharged from John Adams High School. No arrangements were made to ensure that he was re-enrolled in another program and he missed more than two months of school. No IEP meeting was held, and no change of placement or other notices were provided to his mother. AC’s mother never received another assignment to a different school for AC. On October 16, 2002, AFC filed an impartial hearing for AC. The first date offered for the hearing was November 7, 2002. In the interim, AFC secured a seat for AC in an approved private school and the student is attending there now.
127. In violation of law, AC did not receive adequate due process prior to his exclusion from school: AC was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for several months in violation of federal and state law. JC
128. JC is a 15-year-old student with a disability who has been receiving special education services in self-contained special classes since kindergarten. JC was suspended from Christopher Columbus High School in the Bronx in October 2003, but he was not removed from school until January or February 2003. In between his suspension
29

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 30 of 56 PageID #: 192
and his removal he passed 5 out of 7 classes. In February 2003, he was given a one-year suspension for the October incident by the Bronx High School Superintendent and ordered to attend Wildcat Academy. However, Wildcat does not have special education services. On February 26, 2003 AFC informed Defendants’ counsel and filed an impartial hearing. After the hearing, the parent was offered a placement in the Lehman alternative suspension center. However, upon information and belief, there are no special education services there, children don’t receive work from their schools and there is no real instruction occurring. Through AFC’s assistance the child is now recommended for a private school, which the parent accepted in early April. The student missed at least 6 weeks of school. JC has started attending the private school. Upon information and belief, no bussing has been made available.
129. In violation of law, JC did not receive adequate due process prior to his exclusion from school: JC and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusions, was not provided sufficient process for the suspension and was not provided adequate notice or opportunity for a hearing prior to his transfer to a setting which was inappropriate. After the school excluded him illegally, he was denied educational services in violation of federal and state law. TD
130. TD is a 17-year-old student with a disability who received special education services for several years. For the 2000-2001, 2001-2002 and part of the 2003 school year he attended the Bronx Leadership Academy. He had an IEP calling for a special class. However, since the school did not have a special class, TD received no
30

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 31 of 56 PageID #: 193
services. He had behavioral issues and was kept out of class for weeks at a time, sitting in a dean’s office or separate room. TD was suspended in the fall of 2002 and he missed several weeks of school because the Bronx High School Superintendent did not have an alternative suspension program with special education services. His mother, AD, filed an impartial hearing in the fall. TD was initially placed in a private day school through a settlement with the District, but got expelled. Subsequently, the hearing was resolved for a recommendation for a residential placement and interim home instruction. TD missed another month of school after the settlement, because the order memorializing the settlement was not enforced.
131. In violation of law, TD did not receive adequate due process prior to his exclusions from school: TC was excluded for reasons not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing and not provided legally sufficient notice prior to his last suspension. After the school excluded him illegally on a number of occasions, he was denied educational services for several weeks in violation of federal and state law. MG
132. MG is a 13-year-old student with a disability, who started his third year in 5th grade in a school in District 1 in September 2002. In November 2002, he was suspended from PS 34 for an indefinite period of time. He and his mother, LG, did not receive appropriate due process prior to his removal and he did not receive appropriate educational services during the period of removal. After the suspension, MG was placed in the alternative suspension center where he did not receive appropriate educational
31

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 32 of 56 PageID #: 194
services for more than five months. On March 25, 2003, he was suspended from the alternative center and missed one week of school.
133. In violation of law, MG did not receive adequate due process prior to his exclusions from school: EB and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to the exclusions and were not offered the opportunity for hearings. After the school excluded him illegally on a number of occasions, he was denied educational services for more than five months in violation of federal and state law. SG
134. SG is a 16-year-old student with a disability. He has severe ADHD and may have TBI. SG's mother and teacher made multiple requests for evaluations for special education. Upon information and belief, SG was not evaluated until October 2002. On or about May 2002, SG was suspended from Brandeis High School and received a one-year suspension. He was assigned to Lower Manhattan Outreach, an alternative suspension center. In April 2002, he was suspended without due process from Lower Manhattan Outreach and assigned to West Manhattan Outreach, where he attended for the remainder of the school year. SG spent the first two months of the 2002-2003 school year out of school, without any services. In the Fall of 2002, neither suspension site nor Brandeis High School would allow him to reenroll. On October 15, 2002, SG’s mother filed for an expedited Impartial Hearing and requested expedited evaluations. Evaluations were not started until October 24, 2002, after the timelines for the expedited evaluations had already run. On or about October 30, 2002, the Department offered SG the opportunity to enroll in a new high school.
32

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 33 of 56 PageID #: 195
135. In violation of law, SG did not receive adequate due process prior to his exclusion from school: SG and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusions and were not provided adequate and timely process. After Defendants excluded him illegally, he was denied educational services for several months in violation of federal and state law.
RJ 136. RJ is a 15-year-old 9th grader with ADHD who was attending a high
school in Queens. He was suspended a number of times for his refusal to remove a headband, which he used to hide an inoperable lesion of blood vessels on his temple. Those suspensions were not conducted with appropriate due process. After yet another incident prompted by his headgear on March 6, 2003, he was told not to come back to school. However, his mother, ROJ, did not get a written notice until March 14, 2003. Pursuant to this notice, RJ was assigned to Queens Outreach, which does not provide adequate instruction or special education services. Upon information and belief, his mother, ROJ, believed RJ had been decertified from special education in 1999, because he was not getting services. She had requested counseling all of last year and nothing was offered. When AFC contacted the District concerning the suspension, on April 10, 2003, his advocate was informed that the student still had an IEP. After missing school for almost one month, RJ was granted a transfer to an alternate high school. A request has been made for a Section 504 accommodation plan that would allow RJ to use a clothing article in the school to cover the lesion.
137. In violation of law, RJ did not receive adequate due process prior to his exclusions from school: RJ was excluded for reasons not authorized by law, he and his
33

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 34 of 56 PageID #: 196
parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not afforded legally sufficient due process. After the school excluded him illegally, he was denied educational services for approximately one month in violation of federal and state law. JL
138. JL is a kindergarten student with a disability who goes to school in District 6. In November 2003, he was removed from his school and involuntarily transferred without due process. On his parent’s behalf, AFC filed for an impartial hearing on December 2, 2002 and notified the Defendants’ counsel. On or about December 16, 2003 JL was permitted to go back to his school. He missed approximately 25 days of school.
139. In violation of law, JL did not receive adequate due process prior to his exclusions from school: JL was excluded for reasons not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not afforded a hearing. After he was excluded, he was denied educational services for almost one month in violation of federal and state law. SL
140. SL is an 8-year-old student with a disability who was suspended from PS 273 on December 13, 2002. The written policy in District 19 is that students with disabilities do not receive alternative education services during their period of suspension if their parents exercise their right to adjourn a suspension hearing to seek legal counsel. On February 10, 2003, AFC wrote a letter to the suspension hearing officer in District 9 requesting that SL be reinstated to his school. On or before February 7, 2003, AFC
34

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 35 of 56 PageID #: 197
notified Defendants’ counsel that SL was not being enrolled in school. Soon thereafter, SL was permitted to reenroll in school.
141. In violation of law, SL did not receive adequate due process prior to his exclusions from school: SL and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not afforded legally sufficient process. After he was excluded, he was denied educational services for more than one month in violation of federal and state law. JM1
142. JM1 is an 8-year-old child with a severe speech delay and emotional problems. JM1 had been attending Northside day treatment school in District 4 until October 2003, when his mother was told he had to leave school. After being forced to leave, JM1 did not receive any educational services until mid-November, when home instruction was put in place. However, the home instruction was not adequate and he was not receiving his speech services for five months. AFC informed Defendants’ counsel about JM1 on February 26, 2003 and filed an impartial hearing on March 8, 2003. The hearing date was not set until more than one month later, on April 8, 2003. JM1 was eventually given an interim placement at a school, but was not reinstated in a day treatment program. JM1 was out of school for five months.
143. In violation of law, JM1 did not receive adequate due process prior to his exclusion from school: JM1 was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a
35

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 36 of 56 PageID #: 198
hearing. After the school excluded him illegally, he was denied educational services for several months in violation of federal and state law. JM2
144. JM2 is a 12-year-old student with a learning disability who has an IEP that classifies him as learning disabled and notes that he has behavioral issues. During the 2001-2002 and 2002-2003 school years, JM2 was suspended and removed from school without being provided any educational services for days at a time. Despite the fact that JM2’s mother informed the district that he should be reinstated, he was transferred to a different site. When AFC, on behalf of his parent, objected to a transfer as being a violation of his rights, the District determined that it would, instead, consider an extended suspension and perhaps place JM2 in a one-year expulsion center called a Second Opportunity School (SOS). Upon information and belief, there are no special education services at SOS that would meet his needs. On October 15, 2002, AFC filed a request for an expedited Impartial Hearing, requesting, among other things, that JM2 be reinstated in school. The hearing was not scheduled until November 6, 2002. JM2 was not reinstated during this time. On or about October 28, 2002, JM2’s mother placed him temporarily at IS 61, since he was still out of school. On or about October 30, 2002, AFC received a decision letter dated October 11, 2002, from the suspension hearing, which upheld the suspension and placed JM2 on an extended suspension for one year with placement at a SOS. The District held a meeting to determine whether JM2’s behavior was a manifestation of his disability on October 28th, without written notice to JM2’s mother or AFC. On or about October 31, 2002, JM2’s mother was informed through the
36

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 37 of 56 PageID #: 199
Defendants’ counsel that the disposition placing him in a SOS school was not accurate. JM2 was offered the opportunity to go to another school.
145. In violation of law, JM2 did not receive adequate due process prior to his exclusion from school: JM2 and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusions, were not provided sufficient process for the suspension and were not provided adequate notice or opportunity for a hearing prior to his transfer. After the school excluded him illegally on a number of occasions, he was denied educational services for more than one month in violation of federal and state law. LM
146. LM is a 15-year-old student with a disability who is supposed to receive special education services. LM had done so well in his junior high school segregated special education program that he was placed back in regular classes in a regular high school. He had very poor behavior in the fall of 2002 and eventually went on medication in January 2003. In February 2002, LM was removed from his high school without due process and sent to an alternative site that did not have special education services. The site was for suspended students, even though LM was not suspended. On behalf of his mother, MM, on February 5, 2003, AFC wrote to Defendants and asked for him to be reinstated. On or about March 8, 2003, Defendants allowed LM to return to the high school building, but LM was only allowed to take English and Math and was barred from lunch and other academic subjects. On March 14, 2003, AFC informed Defendants’ counsel of the fact that LM was out of school. On March 17, 2003, AFC informed Defendants’ counsel about LM as well as the general lack of instruction and special
37

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 38 of 56 PageID #: 200
education services at the Bronx Lehman suspension center. A request for an expedited Impartial Hearing was filed on March 14, 2003. The hearing was scheduled for March 27, 2003 and as of the hearing date, LM was still out of most of his classes and had missed more than one month of school. The order of the hearing officer was sent to LM’s mother through her counsel, AFC on April 24, 2003. On or about April 22, LM was arrested and placed in secure detention, where he is not receiving special education services and accommodations to which he is entitled.
147. In violation of law, LM did not receive adequate due process prior to his exclusion from school: LM and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to his exclusions, were not provided sufficient process for a suspension and were not provided adequate notice or opportunity for a hearing prior to an exclusion. After the school excluded him illegally on a number of occasions, he was denied educational services for more than one month in violation of federal and state law. RM
148. RM is an 18-year-old student with a disability who has received special education services since second grade. RM has an average to high average IQ, yet his reading and math levels are at approximately 4th and 5th grade levels. RM has earned at least 20 high school credits. In Spring 2002, the CSE recommended that RM return to a special class in a regular high school. On September 6, 2002, when RM and his mother went to the new school to enroll, he was told that he was not enrolled there and was instructed to contact the CSE. RM’s records reflect that he was discharged on September 6, 2002. RM and his mother were not able to obtain a new school placement and he sat
38

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 39 of 56 PageID #: 201
out of school for two months. On November 7, 2003, AFC filed for an expedited Impartial Hearing to get RM reenrolled, among other things. Eventually, on January 21, 2003, the hearing was resolved through a partial settlement.
149. In violation of law, RM did not receive adequate due process prior to his exclusion from school: RM was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for several months in violation of federal and state law. BN
150. BN is a student at IS 126. During the 2001-2002 school year, BN was attending a school-based mental health program run by LIJ at his school. When this program ended in the Spring, his mother enrolled him in an outside counseling program. During the week of April 15, 2002, there was an incident in school where, allegedly, BN got angry and pulled things off a bulletin board. On Friday, April 19, 2002, his mother received a letter asking her to attend a guidance meeting at the district with the Director of Pupil Personnel on Monday, April 22, 2002. At this hearing, the Director of Pupil Personnel told BN’s mother that she recommended that his mother obtain a psychiatric evaluation for BN. BN’s mother agreed and began taking steps to make an appointment for such an evaluation. The Director said that BN should have an "in-house" suspension and that the suspension could not be at BN’s current school, pending results of the outside psychiatric evaluation. On April 24, 2002 a dean at the school told his mother that BN was no longer enrolled at his school and she should contact the district to find
39

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 40 of 56 PageID #: 202
out what to do next. Apparently he had been moved to an alternative site called Project Return. On Friday, April 26, AFC faxed and mailed a letter to the District pointing out the various violations in this situation, and also asserted the child’s IDEA rights. On Monday, April 29, 2002, BN’s mother went to school with a letter from AFC and BN was re-enrolled at IS 126. On Wednesday, May 1, 2002, BN brought home another letter saying that BN would again be transferred to Project Return. The school shared the content of the letter with BN telling him that he is no longer enrolled at the school and is not wanted, greatly upsetting him. BN’s mother filed a request for an Impartial Hearing on May 10, 2002, requesting that BN be reenrolled. On May 13, 2002, the school finally readmitted BN. Overall, BN missed approximately three weeks of school without any instruction due to defendants’ illegal actions.
151. In violation of law, BN did not receive adequate due process prior to his exclusion from school: BN was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for several weeks in violation of federal and state law. JS
152. JS is a 20-year –old-student with a disability who was discharged from JFK High School in September 2001. He only needed two Regents’ exams to graduate. He missed one and one half years of school and he had never been evaluated or classified as disabled by Defendants. On July 24, 2002, AFC filed an impartial hearing. On August 23, 2002, AFC wrote to Defendant’s counsel on JS’s behalf. Even after contacting
40

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 41 of 56 PageID #: 203
Defendant’s council, JS still was not re-enrolled in school. On August 27, 2002, AFC wrote to counsel again, but no resolution was forthcoming. The hearing was originally scheduled for August 21, 2002, with adjourned dates of October 7, 2002 and October 9, 2002. The IHO rendered his decision on November 21, 2003, holding in favor of JS under Section 504. AFC received the decision on November 26, 2002. On January 22, 2003, the District created an IEP and classified JS as Learning Disabled. Even after the hearing, JS was not reinstated into school.
153. In violation of law, JS did not receive adequate due process prior to his exclusion from school: JS was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for more than fourteen months in violation of federal and state law. LS
154. LS is a 14-year-old special education student. He was discharged from his special education class in a District 75 school in the Spring of 2002 despite the fact that he had an IEP for a 12-month program. He missed more than 5 months of school until his mother, GS, filed an impartial hearing on October 24, 2002, requesting, among other things, that he be reinstated to school. The District offered to place him in an approved private school and he accepted. After he was accepted to the school in early December 2002, he was then excluded from school for approximately two more months because of problems with his behavior and access to the bus.
41

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 42 of 56 PageID #: 204
155. In violation of law, LS did not receive adequate due process prior to his exclusion from school: LS was excluded for reasons not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusions and were not offered the opportunity for hearings. After he was illegally excluded, he was denied educational services for more than five months in violation of federal and state law.
WZ 156. WZ is an 18-year-old student with a disability who lives in Brooklyn. In
or around November 2002, WZ’s mother, JZ, was told by school staff that he was no longer allowed to attend Canarsie High School and had to enroll in a GED program. JZ and WZ signed transfer forms, believing they had no choice. JZ attempted to enroll WZ in a GED program, but there was no space. In or around January 2002, she returned to the school requesting that he be re-enrolled. Instead, WZ was only allowed to enroll in a GED program at the school, which operated for two hours in the morning. On or about October 1, 2002, AFC filed an impartial hearing on his behalf requesting that he be evaluated for a suspected disability and placed in a program to meet his needs. On or about October 23rd, the Department’s representatives at the Committee on Special Education agreed to evaluate him on an expedited basis. WZ was offered a school placement in mid-November 2002. After WZ was evaluated by the CSE he was classified as learning disabled with speech and language delays and an IEP was created for him. His hearing was settled and he is now in a private school for learning disabled students at District expense.
42

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 43 of 56 PageID #: 205
157. In violation of law, WZ did not receive adequate due process prior to his exclusion from school: WZ was excluded for a reason not authorized by law, he and his parent/guardian were not provided notice of their substantive and procedural rights under federal and state law prior to exclusion and were not offered the opportunity for a hearing. After the school excluded him illegally, he was denied educational services for more than four months in violation of federal and state law. IX. EXHAUSTION IS NOT REQUIRED
158. Class members are being irreparably harmed, in that they are being denied access to school and not receiving educational services to which they are entitled.
159. Plaintiffs are not mandated to exhaust administrative remedies for the following reasons.
a. The allegations set forth in this complaint are systemic. As such, they cannot be effectively remedied through administrative hearings, which focus on one child a time and cannot result in class wide relief. Moreover, the relief sought here cannot be obtained through administrative channels.
b. Children are being illegally excluded from school and, as such, are not required to pursue administrative remedies before seeking to be restored to their pendency placements.
c. Children are being excluded or transferred informally and not provided adequate or timely notice of their rights to protections and administrative remedies. As such, since they are not receiving notice, they should not be held to the exhaustion requirement.
43

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 44 of 56 PageID #: 206

d. Even class members who attempt to use the administrative proceedings are

still suffering irreparable harm, since the administrative system is not adequate to address

their claims.

e. The administrative hearing process is not proceeding quickly enough to

ensure that children are not suffering irreparable harm by continuing to be excluded for

weeks or months.

f.

The Defendants due process hearings rarely, if ever, meet federal and

state timelines. Once a hearing is filed, a parent may not get a hearing date for 3 or 4

weeks. Once a hearing is held, the hearing officers generally require that they be provided

30 days to issue a written decision. Once a decision is rendered, there is a 30-day appeals

process before the Defendants are required to enforce the order, unless pendency is an

issue.

g. IHOs do not have jurisdiction to enforce their orders, and thus even parties

who prevail may not receive relief. Moreover the system for assigning IHOs does not

comport with state requirements.

h. On questions of law, hearing officers do not have unique or specialized

expertise. Accordingly, exhaustion of administrative remedies is not required in this

case.

160. Nor is exhaustion required for the state law claims; class members allege

illegal policies, practices and systemic violations and the remedies sought here would not

be available through another state administrative process. Moreover, class members are

not generally being provided adequate notice of their rights. And, as set forth above, the

44

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 45 of 56 PageID #: 207
state system is not fast enough to ensure that children would not be excluded from school and irreparably harmed. X. CAUSES OF ACTION By and For the First Cause of Action – IDEA
161. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1-160 as if fully set forth herein.
162. Defendants have violated and continue to violate plaintiffs’ rights under the IDEA by, inter alia:
a. Excluding eligible class members from school and denying them a free and appropriate public education, in violation of 20 U.S.C. § 1400 et seq.;
b. Removing children from school for more than ten days; c. Failing to identify, locate and evaluate all class members who are in need of special education services prior to or during the period of exclusion. d. Failing to ensure that school and district administrators and teachers adhere to the requisite procedural safeguards for disabled children and their parents and guardians, including prior written notice of proposed charges, the right to disagree in adequate administrative proceedings and the right to pendency during those proceedings. 163. As a result of Defendants’ conduct, plaintiffs have been injured and continue to suffer injury. By and For the Second Cause of Action – Section 504 of the Rehabilitation Act 164. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1-163 as if fully set forth herein.
45

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 46 of 56 PageID #: 208
165. Defendants receive federal financial assistance for their educational programs.
166. Class members are qualified individual with disabilities under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
167. By the foregoing facts alleged herein, Defendants have and are continuing to violate the rights of the named plaintiffs and class members under the Section 504 of the Rehabilitation Act of 1973 and the regulations promulgated thereunder. By and For the Third Cause of Action – Due Process
168. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1-167 as if fully set forth herein.
169. By the foregoing facts alleged herein, Defendants have violated the rights of the named plaintiffs and class members under the Due Process Clause of the 14th Amendment to the Constitution of the United States. By and For the Fourth Cause of Action – Equal Protection
170. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1-169 as if fully set forth herein.
171. The Fourteenth Amendment to the United States Constitution prohibits state actors from singling out persons for unequal treatment as compared to others similarly situated if the unequal treatment is based on impermissible considerations such as the intent to inhibit or punish the exercise of federally-protected rights or the malicious bad faith intent to injure.
46

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 47 of 56 PageID #: 209
172. By the foregoing facts alleged herein, Defendants have violated the rights of the named plaintiffs and class members under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States. By and For the Fifth Cause of Action – Americans with Disabilities Act
173. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1-172 as if fully set forth herein.
174. All plaintiffs have impairments that substantially limit one or more major life activities, including talking, communicating, learning, and interacting with others as well as a record of such an impairment.
175. All plaintiffs are qualified to receive a free appropriate public education in defendants’ schools.
176. By reason of the policy, practice, or custom described above, all defendants have failed and will continue to fail to reasonably accommodate the disabilities of each and every plaintiff and members of the plaintiff class, failed to provide them with an appropriate education, and have therefore discriminated against them on the basis of their disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, et seq.
177. As a direct and proximate result of the misconduct, each and every plaintiff and members of the plaintiff class suffered and continue to suffer psychological pain, suffering and mental anguish, and the deprivation of their right to a free appropriate public education, which will continue unless defendants are enjoined from their unlawful conduct.
47

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 48 of 56 PageID #: 210
By and For the Sixth Cause of Action – New York State Education Law 178. Plaintiffs reallege and incorporate by reference the allegations in
paragraphs 1-177 as if fully set forth herein. 179. By the foregoing facts alleged herein, Defendants have violated the rights
of the named plaintiffs and class members under the New York State Education Law and the regulations promulgated thereunder. By and For the Seventh Cause of Action – 42 U.S.C. § 1983
180. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1-179 as if fully set forth herein.
181. By implementing, promulgating, and continuing to enforce and/or effectuate a policy, practice and custom pursuant to which the named plaintiffs and other members of the plaintiff class are illegally excluded from school and denied educational services to which they are entitled under federal and state law, defendants have deprived and will continue to deprive each and every plaintiff and members of the plaintiff class of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the IDEA, 20 U.S.C. § 1400 et. seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; conspired among themselves to do so (taking numerous overt steps in furtherance thereof); and failed to prevent one another from doing so.
182. By implementing, promulgating, and continuing to enforce and/or effectuate a policy, practice and custom of refusing to comply with orders of their own Impartial Hearing Officer ordering them to return children to school, defendants have
48

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 49 of 56 PageID #: 211
deprived and will continue to deprive those plaintiffs and members of the plaintiff class of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the IDEA, 20 U.S.C. § 1400 et. seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; conspired among themselves to do so (taking numerous overt steps in furtherance thereof); and failed to prevent one another from doing so.
183. By failing to adopt adequate policies and procedures to prevent plaintiffs from being illegally denied from school and deprived of educational services defendants have deprived and will continue to deprive those plaintiffs and members of the plaintiff class of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the IDEA, 20 U.S.C. § 1400 et. seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; conspired among themselves to do so (taking numerous overt steps in furtherance thereof); and failed to prevent one another from doing so.
184. By failing to supervise and train their employees and agents concerning due process and the laws and policies designed to prevent illegal exclusion from school and denial of educational services, defendants have deprived and will continue to deprive those plaintiffs and members of the plaintiff class of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the IDEA, 20 U.S.C. § 1400 et. seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, et seq., and Section
49

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 50 of 56 PageID #: 212
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; conspired among themselves to do so (taking numerous overt steps in furtherance thereof); and failed to prevent one another from doing so.
185. Defendants acted under pretense and color of state law and in their individual and official capacities and within the scope of their respective employments as City, SED, and/or Department employees and/or officers. Said acts by defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said defendants acted willfully, knowingly, recklessly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.C. § 1983, and by the IDEA, the ADA, and the Rehabilitation Act.
186. As a direct and proximate result of the misconduct, each and every plaintiff and members of the plaintiff class suffered and continue to suffer psychological pain, suffering and mental anguish, and the deprivation of their right to a free appropriate public education, which will continue unless defendants are enjoined from their unlawful conduct.
187. The acts of the individual defendants were reckless, willful, wanton, malicious, and/or intentional, thus entitling plaintiffs to an award of punitive damages on all claims.
188. By facts alleged herein concerning Defendants actions, Defendants have violated 42 U.S.C. § 1983 by depriving plaintiffs, under color of state law, of their rights, privileges and immunities under federal statutory and constitutional law.
50

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 51 of 56 PageID #: 213
By and For the Eighth Cause of Action – Declaratory Relief 189. Plaintiffs reallege and incorporate by reference the allegations in
paragraphs 1-188 as if fully set forth herein. 190. In light of the foregoing, Plaintiffs seek a declaratory judgment pursuant to
28 U.S.C. §§ 2201 and 2202, stating that the Defendants’ conduct as alleged above is illegal and violates the rights of class members. XI. RELIEF
191. WHEREFORE, plaintiffs request that this Court: a. Assume jurisdiction of this case; b. Enter a preliminary injunction requiring that the District immediately enroll named plaintiffs in school and enforce orders of Impartial Hearing Officers; c. Certify a class consisting of all students with disabilities who have been excluded from school in violation of law and denied due process, procedural protections and educational services to which they are entitled under law. d. Issue a declaratory judgment that Defendants have violated plaintiffs’ rights as set forth above; e. Issue an injunction restraining the Defendants from illegally excluding class members from school and denying them FAPE under federal and state law. f. Issue an injunction restraining the Defendants from failing to comply with federal and state law and Chancellor’s Regulations with respect to class members; g. Issue an injunction or judgment directing the Defendants to immediately identify those class plaintiffs who have been illegally excluded, suspended, expelled or disciplined who are under the age of 21 who have not received a Regents or Local
51

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 52 of 56 PageID #: 214

diploma; outreach by letter in appropriate languages, which will be drafted and approved

by Plaintiffs counsel, and offering class members the opportunity to re-enroll in the

school from which they were removed or excluded or anther appropriate program of their

choice, obtain FAPE and services guaranteed to them by law and compensatory services;

such letter will also contain a notice for class members to contact plaintiffs’ counsel.

h. Issue an injunction or judgment directing the Defendants to immediately

identify those individuals with disabilities who had been illegally excluded, suspended,

expelled or disciplined in the past 3 years but who are now over the age of 21 who have

not received a Regents or Local diploma and offering them the opportunity for

compensatory educational services by letter in appropriate languages, which will be

drafted and approved by Plaintiffs offer the opportunity to re-enroll in their school or

other program, obtain FAPE and services guaranteed to them by law and compensatory

services; such letter will also contain a notice for class members to contact plaintiffs’

counsel.

i.

Such compensatory services under (f) and (g) should include the

development of a fund that can be accessed by class members to pay for educational

services to make up for loss of educational services for class members who have

experienced significant exclusions, without the necessity of hiring an attorney.

j. With respect to class members not already excluded, discharged,

suspended or expelled, enter a permanent injunction requiring Defendants to establish

and maintain, on an ongoing basis, a system sufficient to ensure that class members’

rights are protected and that they are not excluded from school for more than 10 days in

any school year.

52

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 53 of 56 PageID #: 215
k. With respect to all class members, enter a judgment i. Requiring Defendants to design, to submit to plaintiffs and the court for approval and to implement an effective plan to ensure that class members will be afforded the substantive and procedural protections to which they are entitled under federal, state and local law and not excluded from school violation of their rights. Such plan should contain a new system by which defendants will track exclusions, suspensions, expulsions, discharges and other exclusions and ensure accountability in the local community school districts, high school superintendent’s offices and District 75 for complying with federal, state and local mandated procedures; ii. Requiring Defendants to develop a plan to ensure that all personnel in the schools, Districts and Department’s Central Offices are trained on the mandates of due process, the IDEA, Section 504, State and local law and policies which relate to the claims in question.
iii. Requiring Defendants ensure that all written and other notices and procedures and polices comply with federal, state and local law and are designed to ensure that the class members rights are protected.
iv. Requiring Defendants to establish and maintain policies and procedures and a system designed to ensure that class members are
53

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 54 of 56 PageID #: 216
properly identified, evaluated and provided with all mandated services and procedural protection and not excluded from school. Such system should include a procedure whereby parents are consulted and advised as to their rights. v. Requiring Defendants to establish a system for children whom the district knows, or should know, to have a disability, to ensure that a child is not excluded, removed, suspended, discharged or expelled from any class or school based on behavior before an adequate determination is made as to whether a disability is present (and until any administrative appeals and judicial review are completed); is transferred to an alternative school or class or otherwise disciplined only in a manner consistent with applicable law; and is afforded all other procedural and substantive rights with respect to special education. vi. Requiring Defendants to retain an independent expert monitor to oversee, develop and implement the plans and systems and track compliance; vii. Requiring Defendants to submit to counsel for plaintiffs and the court regular periodic reports on the implementation of the plans, data about children who are excluded, suspended, expelled, discharged or disciplined, and the development of procedures and policies;
54

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 55 of 56 PageID #: 217
viii. Requiring Defendants to disseminate notices to parents of all students expelled, discharged, suspended or otherwise excluded informing them of this action and providing them with plaintiff counsel’s contact information.
ix. Appointing a special master or independent monitor to oversee and monitor defendants’ implementation of the requirements of this order;
x. Retaining jurisdiction of this action for all purposes, including entry of such additional orders as may be necessary or proper;
l. Award to plaintiffs their costs and attorneys fees; and m. Grant such other and further relief as may be appropriate. Dated: July 15, 2003
New York, New York
Respectfully submitted,
___________________________ Elisa F. Hyman (EFH4709) Randee J. Waldman (RW4736) Attorneys for Plaintiffs Advocates for Children of New York 151 W. 30th Street, 5th Floor New York, New York 10001 (212) 947-9779
55

Case 1:02-cv-05118-ENV-MDG Document 17 Filed 07/15/03 Page 56 of 56 PageID #: 218 56

 
 Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 1 of 24 PageID #: 522

ONITED STATES DISTRICT COURT
E-A--S-T-E-R-N--D-I-S-T-R-I-C-T--O-F--N-E-W--Y-O--RK------------X
NT, etc., et a~ia,

FILED
* *"· U.s. N'"<'mClilCETnKeSn"O~F-f-fQ~f N , JAN292aaJ
TIME AP.M.M._ .-=====

Plaintiffs, - against New York State Education Department e t a~ia,

CV-02-5118 (CPS)
MEMORANDUM AND ORDER

Defendants.
----------------------------------------X
SIFTON, Senior Judge.
Plaintiffs bring this action on behalf of their children, all of whom are disabled, against defendants the New York City Board of Education ("the Board") 1 the New York State Department of Education ("DOE"), and Joel Klein, as Chancellor of the New York City School District ("the Chancellor") (collectively, "defendants") alleging violations of 42 U.S .C. § 1983; the Fourteenth Amendment to the Constitution; the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"), section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"); and the Americans with Disabilities Act, 42 U.S.C. §§ 12132 et seq. ("ADA"). Plaintiffs seek declaratory and injunctive relief based on their allegedly illegal exclusion from public schools in New York City and the denial of the educational services to which they claim to be entitled.

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 2 of 24 PageID #: 523
- 2-
Defendants now move, pursuant to Rules 12(b) (1) of the Federal Rules of Civil Procedure, to dismiss certain plaintiffs' claims under the IDEA due to their failure to exhaust administrative remedies, as required by 20 U.S.C. § 1415 of the IDEA and to dismiss the claims of other plaintiffs who have exhausted their administrative remedies on grounds of mootness.
For the reasons set forth below, defendants' motion to dismiss is denied.
BACKGROUND
As both sides recognize, the IDEA requires states to offer parents of disabled students a variety of rights and procedural safeguards to ensure the free appropriate public education of their children. These rights include the right to examine all records relating to the child; the right to participate in meetings with respect to the identification, eva~uation, and educationa~ placement of the chi~d; the right to written notice prior to any changes in the chi~d's identification, evaluation, or educationa~ placement; an opportunity to present complaints with respect to such matters; and, where a oomp~aint is made, the right to an impartia~ due process hearing by the state educationa~ agency or by the local educational agency. See 20 O.s.c. §§ 1415(b) (1), (b) (3), (b) (6), (f) (1), and {h), and 1515 (a); Po~era v. The Board o£ Education o£ t:he Newburgh En~arged City Schoo~ District, 288 F. 3d 478, 482 (2d Cir, 2002),

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 3 of 24 PageID #: 524
- 3Under New York State regulations, either a parent or a
school district may initiate a hearing on matters relating to the identification, evaluation, or educational placement of a student with a disability or the provision of a free appropriate public education to the child. See 8 N.Y.C.R.R. § 200.50(I) (1); Po~era, 288 F.3d at 482. A parent may request an expedited hearing when suspension and/or educational placement during suspension are at issue. Sea 8 N.Y.C.R.R. § 201.11. A review of the decision of the hearing officer may be obtained by either the parent or the board of education by an appeal to a state review officer in the State Education Department. See 8 N.Y.C.R.R. § 200.5(J) (2); Po~era, 288 F.3d at 482.
The IDEA also provides for a federal cause of act~on to enforce any of tha r~ghts furn~shed under tha act. However, the act imposes in most cases a requirement that a pla~nt~ff first exhaust adm~n~strat~ve remed~es before bringing a federal act~on seek~ng any rel~ef that could ba granted under the IDEA, regardless of the statute under wh~ch the claim is asserted. See 20 U.S.C. 1415(1) ("Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remed~es available under the Const~tution, the Americans with D~sabilities Act of 1990, t~tle V of the Rehabilitat~on Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 4 of 24 PageID #: 525
4 -
exhausted to the same extent as would be required had the action been brought under this subchapter.") (statutory citations omitted); Bu££olino v, Board o£ Eduo. o£ Sachem Cent. School Dist. at HoLbrook, 729 F. Supp. 240, 244-45 (E.D.N,Y, 1990),
In most circumstances, a plaintiff's failure to exhaust administrative remedies under the IDEA deprives federal courts of subject matter jurisdiction. See MUrphy v. Arlington Cent. Soh. Bd. of Educ,, 297 F,3d 195, 199 (2d Cir, 2002); Polera, 288 F.3d at 483; H~e v. Cortinas, 69 F.3d 687, 688 (2d Cir. 1995).
Plaintiff NT At the time of filing this action, plaintiff NT was an 18-year-old woman, She has been diagnosed with bipolar disorder and has experienced behavioral and academic difficulties for years. In October of 2001, after being discharged from Lower Manhattan Outreach school and having missed at least four months of school, NT was enrolled at Borough Academy. She did not receive any special education services while at Borough Academy. In January 2002, NT was hospitalized due to her bipolar disorder. Upon her discharge, her grandmother attempted to reenroll her at Borough Academy. NT's grandmother was informed that NT would not be permitted to re-enroll and that she would be forced to wait until the following fall to re-register. The school did not inform NT or her guardian of her rights regarding appropriate educational placements, and NT's mother was encouraged to sign NT out of the school. No services were offered to NT, and she missed the entire spring semester.

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 5 of 24 PageID #: 526
5 -
In September of 2002, NT and her mother were told by Borough Academy that due to her behavior she would not be allowed to return to the school because Borough Academy did not have the resources to address her needs. At no time during or prior to the 2001-2002 school year did any of the defendants or their employees or agents refer NT for an evaluation under the IDEA or Section 504 or provide her with other services or protections prescribed by law.
On September 11, 2002, NT's attorneys wrote a letter to the Chancellor's attorney informing him of the situation and requesting immediate placement. After the filing of this action, NT was evaluated by the Committee on Special Education and reinstated to a fifth school. NT began having difficulties in that school due to her medication and was readmitted into the hospital ~n November 2002.
On January 9, 2003, NT's attorneys informed defendants' counsel that NT had requested home instruction upon leaving the hospital on November 11, 2002, but had not yet received those services. According to plaintiffs, NT did not get home instruction until several weeks later.
Plaintiff EB In the Spring of 2001, EB was classified as emotionally disturbed. In September 2002, he was suspended from school. EB's mother was never provided notice of, nor was she informed of her rights regarding, EB's suspension. EB did not receive instructional services while he was suspended. When EB returned

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 6 of 24 PageID #: 527
- 6to schoo~, he was placed in a sal£-conta.ined class without appropriate instruction or services.
Plaintiff LBl Plaintiff LBl has an Individualized Education Program {"IEP") Y that classifies him as learning disabled and which recommends that he receive general education with support services. In September 2002, LBl was discharged from high school and has been out of school since that time. Upon his discharge, school officials told LBl that he could no longer attend his high school because he was too old and did not have enough credits. LBl's mother was never informed of his rights regarding his discharge from school. LBl has missed eight months of school services this year.
In April 2003, LBl's attorneys filed a request for an impartial hearing under the IDEA and Section 504 on behalf of LBl and his parent, A decision was rendered by an impartial hearing officer ("IHO") on July 17, 2003 1 finding no legal basis to issue an order directing the District to provide compensatory education.

" which

is

The Second Circuit has deecribao:l providsd for in tl;e IDEA and the

the Individualized Education Program, relevant regulations, as follows;

wpTnceehhrreiiissdtlotdsenP,'nsnroaengrnlereda&cfmoowclrrshdcaoatthonreetfthe, pm ethuwpearhlnpaatdottieseccess~iepsoara~vf.omitncjeesoedesitmnoin1utagtldncyeolblmda<ebe>tc"tw~twhdp-ieinrlonlgmvpbiaedweree,ehtdniantttogstoga. aemnhthdaeneesdrtcicwhthaoipotohpsl

ed
e
a

J.G • .by Mrs.
445 (2d Cir. § 60) .

G. v. lg87)

Beard c:t; Educ. of (citing 20 U.S.C.

Rcd>este:r CHy Sabael Dist., 830 F.2d 444, § 1401(19); 34 C.F.R, Pt. 300, App. C

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 7 of 24 PageID #: 528
- 7-
Plaintiff HG Plaintiff RG is classified as learning disabled. In the spring of 2002, HG was told that he would have to transfer
from John Jay High School to another school. HG' s parents were
never informed of his rights regarding the transfer. In the fall of 2002, HG's mother attempted to enroll HG in the Accorn School. Upon his arrival at Accorn, HG was told that he would not be parmi tted to enroll. As a result, HG was out of school for over eight months.
In March 2003, l!G' s attorneys filed a request for an impartial hearing on behalf of HG and his mother. Defendants claim that the IHO issued a decision in HG' s favor .:Y Defendants contend that the IHO's decision was initially complied with in substance but that the portion of the decision regarding home instruction presented special difficulties. On or about July 18, 2003, home instruction was arranged to provide HG with three hours per day of instruction during the 2003 summer
HcetirrrtSrtarroren<oeeehGnee<eeflarq>qO'qcarcrlncbspeuoueahuehtahenlliottliiieiaffrg~tot•vlevrHncseieee.lo~eGrdeee;netmnadlnetdcldnwm>t"aeita(h~hioiua5Jnaoanenos)hoennsnptstrm.gpoiserecfsomeaswatfrayecclhaifatwtnocSin~hno.htehoridmhiiooad~dlgneretroliighDeeannlmhtchssxotrgoeogueico:insipoLpgm mnsdshmenentaicrguomortan.cerephoidvsoctseatlmlmoc~oosaireldielnhcerou patsneetihyeeeioielh neflonnhsiekpevoe=l -tgngoiastinrlaihasunoiwers,dln~ arta,g-uuparaesne oas£sa:paasnaLcenctnpitfipthctegohdoetdtieetslhhdooneuonerri,msleebmnebtotruhDpadhryl<atmiaeHhcmraise>snfocs,bttespitnuaodhlvsyisatknauwohrtseitIriptmw dsHenhDtaniimcarsenDtmOegteeonhwnegtepeenegdoIsdatDotrn!paotGt;hsrutrrhayepienoweetdrnepemwta-swftioefrnasmLaHtae.iir.hHcrd2lsitenrelteuobodh0osmautnndderm0t(>trntao6teeh3'n;<itwpp"O)gmbn,niiaJl'neain:tOge(npLv'dgrilg3ts£ettfollerhu)oti"oooteonndiehnrCa1ywsnngahiidx1,enseytHfLaopeuthng,Lhhyetrwseuehiuteaie;nmnsewspt<vet~a'shtorshanOri(ei'eedCotn4Dnisr;to)rceei0ngie(n"wpoo>nngst1p(gi.oenmcecia)2t1acrosnfeCr)rrvpeCnsdiftHeOeoltsomtH"i"ehGscenodd'.G,r"inet"toe.oe&""wntneaH£wnet"uwstarGh~stroetia,sahahocescsitseaweneoi"itnncstoseuiatodhomttstlheoadehnnoriodsgmese

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 8 of 24 PageID #: 529
-'
Plaintiffs claim that at the time that this action was filed, HG was not receiving any of the services that had been ordered and
that, when he did receive instruction, it came five months after
his hearing was held. Plaintiff KSG
Plaintiff KSG is learning disabled and has Attention Deficit Hyperactivity Disorder ("ADHD") and a Traumatic Brain Injury ("TBI"). In the year preceding the filing of the complaint, KSG was repeatedly suspended, transferred, and warehoused in inappropriate suspension centers without services. KSG's parents were not notified by the Department of KSG's rights regarding transfers and suspensions. KSG has missed more than 50 days of appropriate instruction, At the time the complaint was filed, KSG continued to be in an alternative center that was not providing appropriate educational services.
KSG's attorneys filed a request for an impartial hearing on behalf of KSG and his mother and were awaiting a decision when the original complaint was filed. KSG eventually received a hearing in July 2003. The IHO ordered that (1) the manifestation determination review ("MDR") dated May 9, 2003, was invalid and was to be expunged; (2) the Department was to fund KSG's attendance at the Stevenson summer program; and (3) KSG was to receive three hours of daily home instruction.

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 9 of 24 PageID #: 530
- 9-
Plaintiff AJ Plaintiff AJ is autistic. From September to November 2002, AJ sat in a room at PS 178 with only a paraprofessional because the school and superintendent of District 23 refused to
~lement his IEP. AJ was excluded from all of his classes, and his guardians were never infoDmed of his rights regarding the
exclusion.
In September 2002, AJ's attorneys filed a request for an impartial hearing on behalf of AJ and his guardian. Although the IHO ordered that AJ be restored to his class with his IEP services, neither the District nor the school complied with that order. In October 2002, the IHO issued a second order directing AJ to be placed in his class, and defendants eventually reinstated AJ, although not before he had missed more than two months of instruction.
AJ's request for an impartial hearing was resolved pursuant to a settlement between the parties. According to the IHO's Statement of Agreement and Order dated December 3, 2002, at a hearing held on November 18, 2002, the parties had advised the IHO that they had met for a Connuittee on Special Education ("CSE") review on November 15, 2002, and had resolved their dispute. At the hearing, the parties requested that the IHO issue a written Statement of Agreement and Order memorializing

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 10 of 24 PageID #: 531
- 10 their agreement and directing the parties to comply with the
agreement.~'
Defendants contend that, based on the results of the settlement, AJ' s claims have been resolved and rendered moot.
Plaintiff SM Plaintiff SM has ADHD. A1 though he took medication for his learning disability, he was decertified from special education in 1999 and was offered no services after that time. SM has been subject to numerous suspensions and behavioral referrals throughout his school career, and his father was never provided with adequate notice of his rights, In November 2001, SM was allegedly assaulted on two different occasions at school. SM's father requested a safety transfer, but SM had to miss school for several months before a new school was provided,
In January 2001 1 SM' s attorneys filed a request for an impartial hearing on behalf of SM and his father. As a result, SM is currently attending a residential school.
SM's request for an impartial hearing was resolved pursuant to a settlement agreed upon by the parties. The IHO issued an Order of Dismissal on June 17 1 2002, which indicated
oPmwecsI(E3d.pfela7:)eauePn7!Amsea<KtbscJg;thyhetlaiama/(.nl2otpttea)nlnnPtat'Pt!hhgS:tctShhueeepien1aaa1a7mNgcg7IrtBHSheaeoOth"penhsiatrtrmoYhhenoohedsrofpplurdoeri:aknra>peoseprryslpctC-yeaio.beo~pdirdatetrnstooyssipa(nevsr1legdDm.e;)icordeeisvtcntpiefhuhnoeitaiecpgucarefitpnatnmoCshosldSritleermEhiyftnlvoaietnHrtwire"ogCdDlaviSuftetmEeiefhan:eponElwatrtr:tireodh.psftvumoeieeiecpnsreeaedseifnwhooirtofodligolnnnosioermdnwnmdpapielvonlei.ernrtdirr!awdeg'llua1ocwtwebseatencoeoedltkelruua;vgsAi;tcsteriashJM ocasrt'euessoiaoipfrsoroun!Ncmnhltsolhefv-e3opissteb.f1spmeisPti,mre<bohS>cen2eXwri'10sgaev70e1arlBpka3t5K;ld;e,;.erooaa2nnn~r0d0d2

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 11 of 24 PageID #: 532
- 11 that on April 17, 2002, SM's father withdrew the hearing request after reaching an agreement with the Board concerning placement and services. Accordingly, the matter was dismissed without prejudice.
Defendants contend that SM's claims have been resolved and rendered moot as a result of the administrative process.
Plaintiff IP Plaintiff IP received special education teacher support services ("SETTS") for his learning disabilities. In March of 2003, after being accused of a suspendable offense, IP was referred to two alternative placements, neither of which provided any instruction. As of April 2003, IP had not received a decision or disposition regarding his suspension. At some point, either IP or his mother was verbally informed that IP had been transferred to another school.
In April 2003 1 IP's attorneys contacted defendants' counsel concerning the child. IP was denied educational services until the second amended complaint was filed on May 2, 2003 1 and missed months of school.
Plaintiff JW Plaintiff JW has ADHD and has a Section 504 plan to receive medication in school. In February 2002, JW was removed from his regular class due to behavioral problems and was placed in a dean's intervention room at his school for approximately one month. JW received no direct instruction at the dean's intervention room and was segregated from his peers. During this

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 12 of 24 PageID #: 533
- 12 time, JW's parents never received notice of the suspension or removal or of a hearing, conference, or manifestation determination review.
After JW's attorneys contacted his principal, JW was taken out of suspension but was not permitted to return to his regular class; instead, he was sent to a class of lower functioning students.
In March 2002, JW'S attorneys filed a request for an impartial hearing. JW missed a month of school before the hearing was held. On May 3, 2002, a decision was issued in favor of the parent, and the District was ordered to transfer JW to another school with an appropriate class.Y However, despite the order, defendants did not transfer JW until September 2002, and JW suffered from three months of inappropriate instruction as a result.
Defendants contend that, due to the administrative resolution of JW's claims, the claims have been rendered moot.
Plaintiff DR Plaintiff DR is disabled. DR spent much of the 20022003 school year out of his class, in the in-house suspension room and time-out rooms, DR's mother never received any notice or information about DR's rights regarding these exclusions.
ptaiihmnarlqrmo'eauunerigadrthispinartgaotehsTfleayehpbseeosotrniIsuaHodstnOnisbotafholfl&eertsdrhhaseevoJriWaetu.i2dl.dl0stoa0tfhbc1oo~a-an2lrntt0ioin0tpttu2hylha<eecOosreoD f<htsOoicosesheontbaoltretoibysclaeets~afasnotrtia,rgktetwnhee<oedaOsalOctplnohpsonirJdoeoWeclprseirwnsiigashdateoeerryntehgvtseH reatrreidephesd:esLltebwteovyass,etlhla,Jenldacethd at

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 13 of 24 PageID #: 534
- 13 In March 2003, DR's school called a hospital, and DR was admitted for psychiatric observation. In April 2003, he was discharged from the hospital and eventually enrolled in a day treatment program. DR was excluded from school from early April. 2003 until after the second amended complaint was filed.
DISCUSSION
Subject Matter Jurisdiction In considering a motion to dismiss under Rul.e 12(b) (1) of the Federal Rul.es of Civil Procedure, a court must accept as true the factual allegations stated in plaintiffs' complaint, see Zinexmon v. Burch, 494 U.S. 113, 118 (1990), and must draw al.l reasonable inferences in plaintiffs' favor. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hertz Coxp. v. City o£ New York, 1 F.3d 121, 125 (2d Cir. 1993). "However, argumentative inferences favorabl.e to the party asserting jurisdiction should not be drawn." At~ant.ic Milt. Ins. Co. v. Ba~four MacLa:ine Int'~ Ltd., 968 F.2d 196, 198 (2d Cir. 1992). In addition to examining the complaint, a "court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Fed. Repub.l:ic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated £or reconsideration on other grounds, 505 U.S. 1215 (1992), rea££'d on remand, 999 F.2d 33 {2d Cir. 1993) .
The Second Circuit has explained the rationale for the IDEA's exhaustion requirement as follows:

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 14 of 24 PageID #: 535

- 14 -

Exhaustion of the administrative process a~~ows for exercise of discretion and educational expertise by

the

ecsteoftcfamihtcpenileieactnenacdlyfaelobcdytcuuacgalalitvaiorignenecganolcrtihdiese,sss,uaeneadasffg, operrfnoducmsriteohsfteuerstlhslejudefexdvipireclsloioatrpalmtieonnt

of of

a

opport tional

unity to program

s

correct shortcomings for disabled childre

in n."

t

h

eir

educa-

Polera, 288 F.3d at 487 (quoting Hoeft v, Tucson Unified Soh. Dist., 967 F.2d 1298, 1303 (9th cir. 1992)). However, the Second Circuit has also recognized certain exceptions to the exhaustion

requirement. Exhaustion is not required where (1) it would be futile to resort to the IDEA's due process procedures; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; or (3) it is

improbable that adequate relief can be obtained by pursuing

administrative remedies. MUr.phy, 297 F.3d at 199 (quoting Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987) (in turn quoting

H.R. Rep. No. 296, 99th Cong., 1st Sass. 7 (1985))) . The burden of proving the applicability of one of these exceptions falls on the party seeking to avoid exhaustion, Id.; Po.lera, 288 F, 3d at 488 n.S.

P~aintiffs do not dispute that NT, EB, IP, and DR have not exhausted state administrative remedies, Plaintiffs contend, however, that administrative exhaustion is not required in this case because the claims fall under a number of exceptions to the IDEA's exhaustion requirement.

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 15 of 24 PageID #: 536

- 15 -
Plaintiffs NT, EB, LBl, AJ, SM, and DR~1 contend that they should be exempted from the IDEA's exhaustion requirement for the simple reason that they were not provided noti~e of the
administrative remedies that were available to them. 20 u.s.c.
§ 1415 specifically requires written prior notice to the parent of a child whenever an agency either proposes or refuses to initiate or change the identification, evaluation, or edu~ational placement of the ~hild. See 20 U.S.C. § 1415(b) (3). Where proper notice is not sent to the parent, the exhaustion requirement is excused. Sea Mason By and Through Mason v. Schenectady City School Dist., 879 F. Supp. 215, 219 (N.D.N.Y. 1993) (~iting id.; Buffoiino v. Board o:£ Educ. of Sachem Cent. School Dist., 729 F. Supp. 240 (E.D.N.Y. 1990)).
According to the allegations of their complaint, which must be ac~epted as true for purposes of this motion, the parents of plaintiffs NT, EB, and DR received no notice of their procedural rights to address the educational deprivations they allegedly suffered. They are therefore exempted from the IDEA's exhaustion requirement.
Systemic ViolaticAS
Plaintiffs also argue that they are exempted from the IDEA's exhaustion requirement because the third amended complaint asserts systemic violations on the part of defendants and requests structural, rather than case-by-case, remedies, i.e.,

ex is

hauste only

Because plaintiffs LB
d their administrative relevant to pla~ntiffs

l, AJ, and remedies, t<T, EB, an

SM have, tbe exem d DR.

d pt

esp ion

ite du

their oussio

la n

ck in

of notice, this conte"t

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 16 of 24 PageID #: 537
- 16 that defendants have "adopted a policy or pursued a practice of general applicability that is contrary to the law."
The third amended complaint contains specific allegations that the members of the putative class were excluded from school for illegal reasons without adequate process and that the exclusion was a result of a policy or practice that effectively warehoused students in alternative programs that did not even purport to offer the minimum edncational services required by law. (3d Am. Compl. i i 3, 71-96, 121-23.) In addition to the plaintiffs named ~n this action, the third amended complaint describes 17 other students who have allegedly been subject to illegal exclusions and/or long-term denial of access to school.
In Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987), the Second Circuit held that the plaintiffs' claims satisfied the systemic exception to the exhaustion requirement. In that case, parents of handicapped children brought suit against various state agencies responsible for administering education in Connecticut. The pleadings asserted that the state agencies had adopted a policy or pursued a practice of general applicability that failed to provide adequate psychologist staff to the plaintiffs or to provide for triennial evaluations of disabled children. The court determined that the plaintiffs were exempted from the exhaustion requirement because the complaint contained allegations that a due process hearing officer lacked the authority to effectuate class action and system-wide relief.

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 17 of 24 PageID #: 538

- 17 Plaintiffs make similax axguments here. 757.

See Mrs. W., 832 F.2d at

In essence, then "[t]he dispute over exhaustion reduces to one issue: whether there is a meaningful administrative enforcement mechanism for the vindication of personal rights. It is a well established principle of administrative law that exhaustion is not required if the only available administrative remedy is plainly inadequate." Mrs. M., 96 F. Supp. 2d at 129 (D. Conn. 2000) (quoting Ri2ey v. Ambach, 668 F.2d 635, 641 (2d Cir. 1981) (internal punctuation emitted)). Plaintiffs also contend that the relief that can be offered through the state administrative system is inadequate because plaintiffs' complaints are extraordinarily time-sensitive and plaintiffs can not attain timely relief for the deprivations or imminent deprivations from which they claim to suffer.
The second Circuit has recognized that, in certain situations, the ability of state review agencies to offex timely relief for a deprivation requiring immediate remedial action is limited. For example, in MUrphy, the Second Circuit held that an exempt~on from the exhaust~on requirement was appropriate where the plaintiffs sought to challenge an alleged violat~on of the IDEA's "stay-put" provision. 297 F.3d at 199-200. As the Court explained,

[The IDEA establishes a student's right to a stable

learn~ng environment during what may be a lengthy

administrat~ve and jud~cial review, If the ejected from his or her current educational

child is placement

while the administrative process sorts out where the

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 18 of 24 PageID #: 539
- 18 -
proper interim placement should be, then the deprivation is complete. A belated administrative decision upholding a student's stay-put rights provides no remedy for the disruption already suffered by the student. Hence, as a practical matter, access to immediate interim relief is essential for the vindication of this particular IDEA right. Id. Plaintiffs contend that the IDEA violations they allegedly suffered are of a similarly time-sensitive nature. Each plaintiff has alleged that he or she has already missed significant time from school and that he or she may be beyond school age before being able to receive any relief from state administrative agencies. Indeed, although defendants make much of the fact that six of the plaintiffs received favorable decisions as a result of their administrative hearings, they all either experienced long delays before receiving a hearing, all the while suffering from the exclusions of which the complained, or waited long periods of time before the hearing bodies' decisions were enforced.Y As this Court has noted, where a student's exclusion from school can affect their advancement to the next grade or other long-te:rm consequences, "the harm they will suffer will be irreparable." LIH ex re~. LH v. New York City Bd. of Educ., 103 Y. Supp. 2d 658, 665 (E.D.N.Y. 2000). In such situations, the opportunity to pursue speedy relief in
For example, aooooordinq to the oompla:~.nt, despite winninq deois:~.ons from haarinq officers, JW waited more than five months bafor& his decision was :~.mplemented, and SM mused school even after he notified defendants and filed a hearinq. (Cornvl. "ll"ll 113, 117.) The complaint is rife with add:~.honal allegaUons of lenqthy delays, dur:~.nq "hioh many of the plainhffs were excluded
from school. (See, e.g., id. 'll"ll 126-31, 134-35, 136-39, 142-57.)

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 19 of 24 PageID #: 540
- 19 federal court takes precedence over state administrative bodies' entitlement to review individual complaints.
Defendants urge that this Court follow the holding in Mrs. M. v. Bridgeport Bd. o:f Educ.,. 96 F. Supp. 2d 124, 129 (D. Conn. 2000), and find that an exception to the exhaustion requirement is not appropriate in this case. That decision considered a class action suit instituted on behalf of minority children in the Bridgeport, Connecticut school system who were allegedly misidentified by the Bridgeport Board of Education as mentally retarded. The defendants moved to dismiss the claims brought by plaintiffs who had failed to exhaust their administrative remedies. Plaintiffs argued that exhaustion was not required because they had alleged that the agency had adopted a policy or pursued a practice of general applicability that was contrary to law. The court held that an exemption from the exhaustion requirement was inappropriate because the plaintiffs' complaints were capable of being remedied through the available state administrative process. See Mrs. M, 96 F. Supp. 2d at 13031. According to the court, assuming that there existed eligibility criteria and methodology employed by the state agency in identifying children as mentally retarded, which could be classified as a policy or practice of general applicability, the criteria or methodology were "'classic examples of the kind of technical questions of educational policy best resolved with the benefit of agency expertise and a fully developed administrative

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 20 of 24 PageID #: 541
- 20 record.'" Id. (quoting Hoeft v. Tucson Unified Sch. Dist. 1 967 F.2d 1298, 1305 (9th Cir. 1992)),
This case is distinguishable from Mrs. M. because, as explained above, the available state administrative process is not capable of providing a ti.mely remedy to plaintiffs, notwithstanding its expertise in dealing with technical questions of educational policy,
I find that the allegations here, if sustained at trial, suffice to demonstrate the existence of a policy or practice depriving plaintiffs of their rights guaranteed under the IDEA and that state administrative review would not provide adequate relief to plaintiffs. These factors justify an exemption of all plaintiffs from the IDEA's exhaustion requirements.
Mootness Defendants also contend that the plaintiffs who did seek administrative review of their claims lack standing to bring this action, since their claims are moot. The threshold question in every suit brought in federal court is whether the plaintiff has standing to invoke the authority of the federal judiciary. At a minimum, to satisfy the core requirements derived from Article III, a plaintiff must allege: (1) personal injury or threat of injury; (2) that the injury fairly can be traced to the action challenged; and (3) that the injury is likely to he redressed by the requested relief, Heldman, 962 F.2d at 155 (citing Valley Forge Christian

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 21 of 24 PageID #: 542
- 21 Co~~ege v. Americans United for Separation o£ Church and state, Inc., 454 u.s. 464, 472 (1982)).
The question of mootness goes to the redressability requirement. "To satisfy the redressability hurdle, a plaintiff must demonstrate the likelihood that the relief requested would, in principle, redress the injury alleged." Id. at 157 (quoting Orr v. Orr, 440 U.S. 268, 271-72 (1979)). For this reason, courts may only adjudicate "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317 (1988) (citing Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 (1976); Preiser v. Newkirk, 422 u.s. 395, 401 (1975)}. The doctrine of mootness is designed to ensure that a plaintiff's interest in the outcome of an action continues "through the life of the lawsuit." Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994).
Plaintiffs LBl, HG, KSG 1 AJ, SM, and JW (the "exhausted plaintiffs") all sought administrative redress and obtained some relief through the administrative process.Z/ As a consequence, defendants contend, their interest in the outcome of this action has been extinguished and their claims are moot.
Plaintiffs contend that the claims asserted by the exhausted plaintiffs are not moot merely by virtue of the fact that plaintiffs received "limited relief" through the administrative process. Indeed, to the extent that plaintiffs may be entitled to more extensive relief as a result of a federal
However, as plaintiffs point out, LBl received an unfavorable decision regarding some of his cla1ms and is still 1n the midst of his administrative
process, since he plans to appeal the decision. (Wong Decl. 1 3.)

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 22 of 24 PageID #: 543
- 22 action than what they attained through administrative hearings, defendants' argWitent leaves no room for federal recourse to plaintiffs.
Even if defendants could establish that plaintiffs had received adequate relief as a result of their impartial hearings, plaintiffs' claims are subject to a recogni~ed exception to the mootness doctrine. In Honig v. Doe, 484 U.S. 305 (1988), the Supreme Court considered an action by a disabled student who was within the age range entitling him to free public education and who had faced suspensions and expulsions as a result of his disability. Although he was not under any procedures threatening his imminent suspension or expulsion at the time he filed his case, the Court found that, given that he had suffered such consequences in the past, the plaintiff had a "reasonable expectation" that he could suffer similar consequences in the future. Therefore, the Court explained, the plaintiff's claims fit within the "capable of repetition yet evading review" exception to the mootness doctrine. See Honig, 484 U.S. at 318>9.
Plaintiffs have stated in the pleadings that the harm they have allegedly suffer is likely to occur again. (Compl. ~~ 97-157, 176-77.) Defendants attempt to distinguish this action from Honig on the grounds that in Honig the local school district retained the authority by regulation to exclude disabled children from school for the type of behavior leading to the plaintiff's previous exclusions. In contrast, here, defendants

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 23 of 24 PageID #: 544

- 23 contend, "the Chancellor's :regulations regarding exclusions are not only in accordance with, but may actually be more rigorous than what is required under the statutes." (Defs.' Reply Mem. at

11.)

Defendants' argument is essentially circular; this case

is only distingu~shable from Honig if one accepts defendants'

premise that the state regulations and procedures governing the

adjudication of plaintiffs' claims in fact conform to the IDEA.

The basis of plaintiffs' claims, however, is that the regulations

and procedures at issue here fall short of offering the

guarantees provided by the IDEA. Indeed, the purpose of this

suit is not merely to provide rel~ef for the named plaintiffs but

to challenge the Department and the Board's procedures which,

plaintiffs contend, have led to widespread and systemic

v~olations of the r~ght to free appropriate public education for

the disabled. I agree that, accepting plaintiffs' allegations as
true, the pleadings are sufficient to suggest that there is a reasonable expectat~on that such harm could reoccur. Pla~nt~ffs' claims therefore fall within the doctrine of "capable of repeti t~on yet evading review" and plaintiffs have standing to bring this action.11

Plaintiffs make other arguments conoernutg exhaustion that need not be considered at this stage of the Hhgation. Specifically, phinhffe contend that the adm~n~strative exhaustion ;oequl.;oement should be excused here b.,cause (1) the hearing system at issue in this litigahon is insufficient to satisfy the impartial due process hearing r&qUirement und<u: SecUon 1415(£) (l) of the IDEA,
and (2) Ne'll York Education Law Section 4404 fails to comport with secUon 1415(b)
(continued ... )

Case 1:02-cv-05118-ENV-MDG Document 49 Filed 01/29/04 Page 24 of 24 PageID #: 545

- 24 -

CONCLUSION

For the reasons set forth above, defendants' motion to

dismiss this action for lack of personal jurisdiction is denied.

The Clerk is directed to furnish a filed copy of the

within to all parties and to the magistrate judge.

Dated

SO ORDJ;:RED.

tJe , Brooklyn, New York

January

2004

" ( ... conhnued)
of the IDEA.

 
 Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 1 of 28 PageID #: 706

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------------X

FILED
* IN ClERKS Ol=FIO£ 0.8, f)ISTRICT C()• ••· •.,
AUG ' 8 2004 N*.V:
' P.M.
TIME A.M.----

N. T. , et al. ,

Plaintiffs,

CV-02-5118 (CPS)

- against New York City Board of Education, et al.,

[CORRECTED] MEMORANDUM AND ORDER

Defendants.
----------------------------------------X

SIFTON, Senior Judge.

The nine named plaintiffs are disabled children who

bring this action against defendants, the New York City Board of

Education, the New York City Department of Education, and Joel

Klein, the Chancellor of the New York City School District,

alleging violations of 42 U.S.C. § 1983, the Fourteenth Amendment

to the United States Constitution, the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400, et seq. (ftiDEA"),

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,

and the Americans with Disabilities Act (ftADA"), 42 U.S.C.

§ 12132, et seq. Plaintiffs seek declaratory and injunctive

relief based on their allegedly illegal exclusion from public

schools. Plaintiffs claim that defendants instituted a policy,

practice, and custom pursuant to which plaintiffs and other

disabled students are, or were, illegally excluded from school.

Plaintiffs now move pursuant to Federal Rule of Civil

Procedure 23 to certify a class of ftdisabled New York City

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 2 of 28 PageID #: 707
-2children age three through twenty-one who have been, will be, or are at risk of being excluded from school and deprived of educational services through suspensions, expulsions, transfers, discharges, removals and denials of access conducted in violation of law." Plaintiff also move pursuant to Rule 23 (c) ( 4) to certify two subclasses consisting of: 1) "disabled class members who, after being excluded, have been or will be transferred to an alternative educational program that does not provide minimally adequate regular or special education services"; and 2) "disabled class members, not identified as disabled, who have been or will be excluded in the future or at risk of such exclusion."
For the reasons set forth below, the motion to certify is granted, but with respect to a class defined less broadly than plaintiffs' proposal. The motion to certify subclasses is denied without prejudice.
Background The following facts are drawn from plaintiffs' Third Amended Complaint. Plaintiffs are nine New York City children ranging in age from three to twenty-one who have been or will be at risk of being suspended, expelled, transferred, or otherwise excluded from New York City public schools. The children suffer from various learning disabilities and emotional disorders. Plaintiffs allege that defendants are engaged in a systemic practice of excluding children from school without

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 3 of 28 PageID #: 708
- 3providing procedures mandated by federal law. Specifically, plaintiffs allege that students frequently fail to receive notice or an adequate hearing prior to exclusion, and students are excluded for reasons not authorized by law. Once excluded, many of these students are placed in alternative educational environments that do not meet the requirements of the IDEA.
Plaintiffs also allege that defendants have failed to adopt appropriate procedures to prevent violations of the IDEA and other laws. Defendants are said to have failed to institute a system to track students in need of special education. Defendants have not provided appropriate training or supervision to school teachers and administrators or instituted a system to hold them accountable for violations of the IDEA, .
Plaintiffs allege that there are approximately 165,000 students with identified disabilities receiving special education in the New York school system. Approximately 10,000 students with disabilities drop out or are discharged from the New York school system each year.
The Named Plaintiffs Plaintiff NT
At the time of filing this action, plaintiff NT was an 18-year-old woman. She has been diagnosed with bipolar disorder and has experienced behavioral and academic difficulties for years. In October of 2001, after being discharged from Lower Manhattan Outreach school, and having missed at least four months

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 4 of 28 PageID #: 709
- 4-
of school, NT was enrolled at Borough Academy. She did not receive any special education services while at Borough Academy.
In January 2002, NT was hospitalized due to her bipolar disorder. Upon her discharge, her grandmother attempted to reenroll her at Borough Academy. NT's grandmother was informed that NT would not be permitted to re-enroll and that she would be forced to wait until the following fall to reregister. The school did not inform NT or her guardian of her rights regarding appropriate educational placements, and NT's mother was encouraged to sign NT out of the school. No services were offered to NT, and she missed the entire Spring semester.
In September of 2002, NT and her mother were told by Borough Academy that due to her behavior, she would not be allowed to return to the school because Borough Academy did not have the resources to address her needs. At no time during or prior to the 2001-2002 school year did any of the defendants, or their employees or agents, refer NT for an evaluation under the IDEA or Section 504 of the Rehabilitation Act or provide her with other services or protections prescribed by law.
Plaintiff EB In the Spring of 2001, EB was classified as emotionally
disturbed. In September 2002, he was suspended from school. EB's mother was never provided notice of, nor was she informed of her rights regarding, EB's suspension. EB did not receive instructional services while he was suspended. When EB returned

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 5 of 28 PageID #: 710
- 5to school, he was placed in a self-contained class without appropriate instruction or services.
Plaintiff HG Plaintiff HG is classified as learning disabled. In
the spring of 2002, HG was told that he would have to transfer from John Jay High School to another school. HG's parents were never informed of his rights regarding the transfer. In the fall of 2002, HG's mother attempted to enroll HG in the Accorn School. Upon his arrival at Accorn, HG was told that he would not be permitted to enroll. As a result, HG was out of school for over eight months.
In March 2003, HG's attorneys filed an Impartial Hearing on behalf of HG and his mother. Defendants claim that the IHO issued a decision in HG's favor. Defendants contend that the Officer's decision was initially complied with in substance, but that the portion of the decision regarding home instruction presented special difficulties. On or about July 18, 2003, home instruction was arranged to provide HG with three hours per day of instruction during the 2003 summer session. Plaintiffs claim that at the time that this action was filed, HG was not receiving any of the services that had been ordered, and that the when he did receive instruction, it came five months after his hearing was held.
Plaintiff KSG

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 6 of 28 PageID #: 711
- 6-
Plaintiff KSG is learning disabled and has Attention Deficit Hyperactivity Disorder (ADHD) and a Traumatic Brain Injury (TBI). In the year preceding the filing of the Complaint, KSG was repeatedly suspended, transferred, and warehoused in inappropriate suspension centers without services. KSG's parents were not notified by the Department of KSG's rights regarding transfers and suspensions. KSG has missed more than 50 days of appropriate instruction. At the time the Complaint was filed, KSG continued to be in an alternative center that was not providing appropriate educational services.
Plaintiff AJ Plaintiff AJ is autistic. From September to November
2002, AJ sat in a room at P178 with only a paraprofessional because the school and superintendent of District 23 refused to implement his IEP. AJ was excluded from all of his classes, and his guardians were never informed of his rights regarding the exclusion.
In September 2002, AJ's attorneys filed an Impartial Hearing on behalf of AJ and his guardian. Although the IHO ordered that AJ be restored to his class with his IEP services, neither the District nor the school complied with that order. In October 2002, the IHO issued a second order directing AJ to be placed in his class, and defendants eventually reinstated AJ, although not before he had missed more than two months of instruction.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 7 of 28 PageID #: 712
- 7Plaintiff SM
Plaintiff SM has ADHD. Although he took medication for his learning disability, he was decertified from special education in 1999 and was offered no services after that time. SM has been subject to numerous suspensions and behavioral referrals throughout his school career, and his father was never provided with adequate notice of his rights.
Plaintiff IP Plaintiff IP received special education teacher support
services (SETTS) for his learning disabilities. In March of 2003, after being accused of a suspendable offense, IP was referred to two alternative placements, neither of which provided any instruction. As of April 2003, IP had not received a decision or disposition regarding his suspension. At some point, either IP or his mother was verbally informed that IP had been transferred to another school.
Plaintiff JW Plaintiff JW has ADHD and has a Section 504 plan to
receive medication in school. In February 2002, JW was removed from his regular class due to behavioral problems and was placed in a dean's intervention room at his school for approximately one month. JW received no direct instruction the dean's intervention room and was segregated from his peers. During this time, JW's

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 8 of 28 PageID #: 713
- 8parents never received notice of the suspension or removal, or of a hearing, conference, or manifestation determination review.
After JW's attorneys contacted his principal, JW was taken out of suspension, but was not permitted to return to his regular class; instead, he was sent to a class of lower functioning students.
In March 2002, JW's attorneys filed a request for an Impartial Hearing. JW missed a month of school before the hearing was held. On May 3, 2002, a decision was issued in favor of the parent, and the district was ordered to transfer JW to another school with an appropriate class. However, despite the order, defendants did not transfer JW until September 2002, and JW suffered from three months of inappropriate instruction as a result.
Plaintiff DR Plaintiff DR is disabled. DR spent much of the 2002-
2003 school year out of his class, in the in-house suspension room and time-out rooms. DR's mother never received any notice or information about DR's rights regarding these exclusions.
In March 2003, DR's school called a hospital, and DR was admitted for psychiatric observation. In April 2003, he was discharged from the hospital and eventually enrolled in a day treatment program. DR was excluded from school from early April 2003 until the Complaint was filed.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 9 of 28 PageID #: 714
- 9Discussion Class certification is appropriate if the prerequisites of Federal Rule of Civil Procedure 23(a) are satisfied and the class can be maintained under one of the subsections of Rule 23(b). Eisen v. Carlisle & Jaqueline, 417 U.S. 156, 163 (1974). The party seeking to certify the class bears the burden of proving that the requirements of Rule 23 have been met. Felman v. McDonald's Corp., 237 F. Supp. 2d 512, 539 n.30 (S.D.N.Y. 2003) . A district court has broad discretion in certifying a class. In re Holocaust Victim Assets Litigation, 225 F.3d 191, 201 (2d Cir. 2000) . 1 For purposes of class certification, the merits of the complaint are not at issue and the allegations are taken as true. Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n.l5 (2d Cir. 1978); DeAllaume v. Perales, 110 F.R.D. 299, 305 (S.D.N.Y. 1986). Federal Rule of Civil Procedure 23 allows certification of a class only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
FED. R. Crv. PRO. 23 (a).

1

The Court of Appeals may, however, be less deferential when

the district court has denied certification. Parker v. Time Warner

Entertainment Co., L.P., 331 F. 3d 13, 18 (2d Cir. 2003).

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 10 of 28 PageID #: 715
- 10 In addition, the class must fall into one of the three categories identified in Rule 23(b): 1) individual actions pose a danger of varying adjudications; 2) plaintiffs seek injunctive or declaratory relief against a party who has acted on grounds generally applicable to the class; or 3) common questions of law or fact predominate over individual issues.
The Class Definition Plaintiffs move to certify a class of "disabled New
York City children age three through twenty-one who have been, will be, or are at risk of being excluded from school and deprived of educational services through suspensions, expulsions, transfers, discharges, removals and denials of access conducted in violation of law." As discussed further infra, this definition encompasses individuals who do not share plaintiffs' proposed elements of commonality and typicality. Plaintiffs' definition would encompass students excluded for any reason, pursuant to any policy, that violates any law. The proposed class would therefore include members who shared no point of commonality other than an exclusion from school that in some manner violated some law.
Courts have broad discretion over class definition. Boucher v. Syracuse Univ., 164 F. 3d 113, 118 (2d Cir. 1999). In accordance with plaintiffs' proposed common questions of law, the class to be certified shall consist of "disabled New York City children age three through twenty-one who have been, will be, or

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 11 of 28 PageID #: 716
- 11 -
are at risk of being excluded from school without adequate notice and deprived of a free and appropriate education through suspensions, expulsions, transfers, discharges, removals and denials of access."
Rule 23 (a) (1) - Numerosity No fixed rule exists to answer the question of what
constitutes a class so numerous as to make joinder impracticable. Courts have identified several relevant factors in making this determination, including the size of the class itself, their geographic location, and requests for prospective injunctive relief that would involve future class members. Robidoux v. Celani, 987 F.2d 931, 935-36 (2d Cir. 1993}. Courts may make common sense assumptions to support findings of numerosity, and numerosity is presumed at forty. Id. at 936; Weisman v. ABD Financial Services, Inc., 203 F.R.D. 81, 84 (E.D.N.Y. 2001}.
Plaintiffs have satisfied the numerosity requirement. The named nine named plaintiffs all allege to have been excluded from school pursuant to the same illegal policies of the defendant. The complaint identifies another seventeen students that plaintiffs allege have been excluded pursuant to the same policies. Plaintiffs seek future injunctive relief involving future class members. Plaintiffs contend that the school board excludes thousands of special education students per year.
Defendants do not seriously dispute that the proposed class meets the numerosity requirement. Instead, defendants

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 12 of 28 PageID #: 717
- 12 challenge the plaintiffs' use of statistics, arguing that the class does not consist of all 14,135 students who "exited" the special education system between 1996-1997, as many of them graduated, were transferred, or moved out of New York City. Other than the twenty-six students identified, the complaint does not allege that any of the 14,135 students who exited the New York City special education system in particular were excluded illegally. It is nevertheless clear that a sufficient number of disabled students have or will be excluded from school pursuant to the defendants' allegedly illegal policies to make joinder impracticable.
Rule 23 (a) (2) - Commonality Federal Rule of Civil Procedure 23 requires that
"questions of fact or law common to the class" be present in order to maintain a class action. Commonality may be met where the individual circumstances of class members differ but they stem from a unitary course of conduct. Vengurlekar v. Silverline Technologies, Ltd., 220 F.R.D. 222, 227 (S.D.N.Y. 2003). A single common question may be sufficient. German v. Federal Home Mortgage Corp., 885 F. Supp. 537, 553 (S.D.N.Y. 1995). Class actions alleging a violation of the due process right to be heard are commonly certified. See 7A WRIGHT ET AL. 1 FEDERAL PRACTICE AND PROCEDURE, § 1763 at 225-26, n. 22 (1986) (listing cases).
The plaintiffs allege that the defendants have adopted a policy or practice of not providing the appropriate procedures

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 13 of 28 PageID #: 718
- 13 that are prerequisite to excluding disabled students from school. Plaintiffs also allege that each plaintiff has been denied a ~free and appropriate education" during their exclusion in violation of the IDEA. Because plaintiffs seek systemic change to the New York School System, the complaint makes no effort to match particular legal claims with each of the named plaintiffs. Instead, the complaint briefly describes each plaintiff's disability, in what regard he was excluded from school, and the procedures the defendant provided.
Defendants argue that the plaintiffs lack a common factual question. They contend that the only link between the plaintiffs is that they have been excluded from school and are disabled in some way. Defendants further argue that the merits of each plaintiff's claim will depend on unique factual findings. Defendants also argue that the plaintiffs' request for a compensatory fund to pay for educational services for class members who have suffered substantial exclusion will require the Court to make individualized determinations regarding each class member's denial of educational services.
Plaintiffs' briefs alternately concede that the factual circumstances surrounding each of their exclusions are unique, and then argue that they share the common characteristic of being excluded from school. Although the complaint alleges that each plaintiff has been excluded from school, the factual determination of whether that is so will depend on evidence unique to that individual and be determined on a case-by-case

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 14 of 28 PageID #: 719
- 14 -
basis. Plaintiffs point to no piece of evidence that is relevant to the factual question of whether each plaintiff has been excluded. The determination of whether any individual plaintiff has been excluded is therefore not "common." See 7A WRIGHT ET AL., § 1763 at 203 n.lO (listing cases where no common question of fact is found where the determination of that fact for each plaintiff depends on facts unique to each plaintiff) .
Plaintiffs also seek to establish that all plaintiffs share common legal issues. The issues of law that plaintiffs claim that the members of the proposed class have in is pursuant to the same policy: 1) They failed to receive sufficient notice prior to their exclusion; and 2) While excluded, they did not receive a free and appropriate education as required by the IDEA.
Defendant directs the Court's attention to an unpublished District of Minnesota opinion, Reinholdson, et al. v. State of Minnesota, et al., No. 02-795, 2002 U.S. Dist. Lexis 17169 (D. Minn. Sept. 9, 2002). The Reinholdson court denied certification of a class of plaintiffs challenging the reasonableness of each plaintiff's IDEA-mandated "individualized education plan" ("IEP"). The defendant would have met its obligations under each IEP if it was "reasonably calculated to enable the child to receive educational benefits." Id. at *23 (quoting Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). The court denied certification because each plaintiff's plan was, in fact, individualized and would turn on unique evidence. Id.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 15 of 28 PageID #: 720
- 15 Defendant also turns this Court's attention to a Tenth Circuit decision, J.B., ex rel Hart v. Valdez, et al., 186 F.3d 1280 (lOth Cir. 1990). In that case, plaintiff sought structural reform of New Mexico's system for evaluating and treating developmentally disabled children in its custody. Id. at 1283. The court denied certification because plaintiffs could not satisfy the commonality element. The factual manner in which the plaintiffs entered into state custody and their treatment once in custody differed. Id. at 1288-89. Because there was no single claim for relief that all plaintiffs shared, the court held that no common legal question existed. Id. at 1289. The court declined to read the plaintiffs' general allegations of "systematic failures" as establishing a common legal question. The conservative approach to certification applied in J.B. and Reinholdson are in tension with the "liberal rather than restrictive construction" the Second Circuit has given Rule 23. See Marisol A. v. Giuliani, 126 F. 3d 372, 377 (2d Cir. 1997). As the dissent in J.B. noted, the majority failed to distinguish the Second Circuit's decision in Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997), and the Third Circuit's decision in Baby Neal v. Casey, 43 F. 3d 48 (3d Cir. 1994). See J.B., ex rel Hart, 186 F. 3d at 1300 (Briscoe, J., dissenting) (finding "troubling the majority's unexplained rejection of two cases from our sister circuits"). Under very similar facts to J.B., the Second Circuit affirmed certification and the Third Circuit reversed a lower court's decision not to certify.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 16 of 28 PageID #: 721
- 16 -
In Marisol A., the district court found a common legal question in the plaintiffs' allegation that the child welfare system had "failed to provide legally mandated services" to the plaintiffs. Marisol A., 126 F.3d at 377. Their challenges were to different aspects of the child welfare system, including allegations of inadequate training of foster parents, the failure to properly investigate reports of abuse, delay in removing children from abusive homes, and the inability to secure placement for adoption. Id. at 376. These allegations implicated different statutory and constitutional provisions. Id. at 376-77. No plaintiff was affected by every violation. Id. at 377. The district court found it sufficient that all plaintiffs were at risk of suffering a deprivation of "services to which they claim they are entitled." Marisol A., 929 F. Supp. at 691.
The Court of Appeals affirmed, although it noted that the lower court's characterization of the claims at such a high level of abstraction "stretches the notions of commonality and typicality." Marisol A., 126 F.3d at 377. Nevertheless, the district court's finding that plaintiffs' injuries stemmed from a unitary course of conduct by a single system was sufficient to uphold certification. Id.
The issue of whether the defendants' policies by which disabled students are excluded comply with the IDEA falls well within the outer bounds suggested by Marisol A. Here, plaintiffs have alleged that defendants have a practice or policy of

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 17 of 28 PageID #: 722

- 17 -

providing insufficient procedures and notice prior to excluding

students from school and not providing a free and appropriate

education during those exclusions. Whether these policies and

practices are in compliance with the law is a common question.

See Upper Valley Ass'n for Handicapped Citizens v. Mills, 168

F.R.D. 167 (D.Vt. 1996) ("Defendants efforts to develop and

implement procedures under the IDEA are common to all

participants within the class .

."). That question is

substantially more concrete than the common issue of whether the

defendants "failed to provide legally mandated services" that the

Marisol A. court upheld.

Neither the unique factual circumstances surrounding

each plaintiff's exclusion or each plaintiff's request for

compensatory relief alter this conclusion. Unique factual

questions such as requests for damages that must be determined on

an individualized basis do not destroy commonality so long as a

common question of law exists. See Robinson v. Metro-North

Commuter R.R. Co., 267 F. 3d 147 (2d Cir. 2001) (certifying class

seeking damages for disparate treatment under Title VII).

Rule 23 (a) (3) - Typicality Rule 23(a) requires that the claims of the representative class members be typical of the claims of the class. When the same unlawful conduct is directed at all members of the class, typicality is usually satisfied despite minor variations in the fact pattern underlying individual claims.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 18 of 28 PageID #: 723
- 18 Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993). Allegations that a defendant violated plaintiffs' rights in the "same general fashion" may satisfy the typicality requirement. Id. at 937 (citing Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986)). Similarly, when the plaintiffs' rights are violated by the same practice, typicality is satisfied. Baby Neal ex rel Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). The Court of Appeals has observed that the typicality and commonality requirements tend to merge into one another and involve similar considerations. Marisol A., 126 F.3d at 376.
Defendants provide the same arguments against the plaintiffs' typicality as they did against commonality. Plaintiffs' exclusions stemmed from different conduct and were implemented in different manners.
To the extent that plaintiffs allege that they were all deprived of sufficient procedures and notice prior to their exclusion and denied a free and appropriate education while excluded, the named plaintiffs' claims are typical of the class. Each claim stems from the defendants' alleged policy and practice of providing deficient procedure and notice and not providing a free and appropriate education during the period of exclusion. Defendants' indication that plaintiffs' exclusion stemmed from unique circumstances does not suggest that named plaintiffs' claims that they were all provided insufficient procedure or notice and denied a free and appropriate education pursuant to the same policy are unique. See Upper Valley Ass'n for

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 19 of 28 PageID #: 724

- 19 -

Handicapped Citizens, 168 F.R.D. at 170 ("Plaintiffs complain

that Defendants failed to investigate and resolve their

allegations under the IDEA in a timely fashion. Factually, those

allegations are typical of the allegations made by the class . .

• If)

0

0

Rule 23(a) (41 -Adequacy of Representation Rule 23 (a) (4) provides that a class action can only be maintained where the representatives "will fairly and adequately protect the interests of the class." Defendants do not contest that the named plaintiffs and their counsel will adequately represent the interests of the class.

Maintaining the Class Under Rule 23(b) In addition to satisfying the requirements of Rule
23(a), the class must satisfy one of three provisions of Rule 23(b). Plaintiffs argue that their class satisfies any one of the three provisions of Rule 23(b). The Court finds that plaintiffs' class will be maintained pursuant to Rule 23 (b) (2), and could also be maintained pursuant to Rule 23 (b) (3).

Rule 23 (b I (1 I (A) Rule 23 (b) (1) (A) allows for maintenance of the class action when prosecution of separate actions would create a risk of "inconsistent or varying adjudications with respect to individual members of the class which would establish

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 20 of 28 PageID #: 725
- 20 -
incompatible standards of conduct for" the defendants. For Rule 23 (b) (1) (A) to be applicable, there must be an actual risk that individual members of the class would bring separate actions if the class action were not permitted. Eisen v. Carlisle & Jacqueline, 391 F.2d 555, 564 (2d Cir. 1968); 7A WRIGHT ET AL., § 1773 at 427.
Plaintiffs contend that certification under Rule 23 (b) (1) (A) is appropriate because the class seeks an injunction mandating a consistent, legally adequate procedure for determining when excluding children with disabilities from school is appropriate.
Plaintiffs, however, concede that there is little risk that individual members of the class will bring suit thereby producing varying adjudications. Plaintiffs state that absent the class action mechanism it would be "virtually impossible" for individual plaintiffs to assert their rights. (Plaintiffs' Brief at 41). When the party seeking certification concedes that individual suits are highly unlikely, the risk of varying adjudications is eliminated, and the class cannot be maintained under Rule 23 (b) (1) (a). Eisen, 391 F. 2d at 564 ("Plaintiff has effectively rebutted his own argument because he admits that individual actions could not be brought as the small claimants who constitute the entire class could not, on an individual basis, afford the expense of lengthy anti-trust litigation."). The class action is therefore not maintainable pursuant to Rule 23 (b) (1) (A).

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 21 of 28 PageID #: 726
- 21 Rule 23 (b) (3) A class is maintainable pursuant to Rule 23(b) (3) when the common questions of law or fact predominate over questions affecting only individual class members. Rule 23(b) (3) is a "broad catch-all provision allowing the district court to certify a class in its discretion when to do so would conserve the resources of the judiciary and the parties." J. B. ex rel Hart, 186 F.3d at 1298 (Briscoe, J., dissenting). Rule 23 (b) (3) sets out two prerequisites for the maintenance of a class action. First, the questions of law or fact must predominate. Second, the class action must be superior to other methods of resolving the controversy. In determining whether the class action is a superior method of resolution, the Rule instructs the Court to take into account four factors: 1) the interest of class members in pursuing separate actions; 2) the extent and nature of any litigation already commenced; 3) the desirability of concentrating the claims in this forum; 4) the difficulties likely to be encountered in the management of the class action. FED. R. CIV. PRO. 2 3 (b) ( 3) . Plaintiffs argue that because they seek structural relief and not individual damages, the common issue of the legality of the procedure for excluding disabled students from school predominates over any particular plaintiff's claim. Defendants again argue that certification fails because common issues of fact or law are absent. Defendants also contend that plaintiffs' request for the creation of a compensatory fund to

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 22 of 28 PageID #: 727

- 22 -

pay for educational services for class members who have suffered

substantial exclusion will require the Court to make

individualized determinations regarding each class member's

denial of educational services The common question of law predominates over the unique

factual aspects of plaintiffs' claims. The central issues of the

complaint is the appropriateness of the defendants' procedures

for excluding disabled students and whether a free and

appropriate education is provided during that exclusion. The

logistics of individualized compensation, if liability is

established, do not alter this conclusion. Although it may be

true that determining the compensation due each plaintiff may be

time consuming in total should this class be certified, that same

time would be expended should each plaintiff bring a separate

suit.

See 7A WRIGHTETAL., § 1778 at 527-28. The class action is also superior method of resolution

to individual suits. There is no indication that class members

are interested in pursuing separate actions. Resolving the

common issue of law of the legality of defendants' policies with

regard to exclusion of disabled students in a single action in

this forum preserves the resources of the judiciary and the

parties. Finally, the class appears sufficiently numerous and

seem to possess relatively small claims unlikely to be

individually adjudicated, thereby making the class action a

superior means of resolution. See Dornberger v. Metropolitan

Life Ins. Co., 182 F.R.D. 72, 83 (S.D.N.Y. 1998).

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 23 of 28 PageID #: 728
- 23 -
Accordingly, the class is maintainable pursuant to Rule
23(b)(3).
Rule 23 (b) (2) Rule 23 (b) (2) provides that a class action is maintainable when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a
whole." In opposing the plaintiffs' argument that the class is
maintainable pursuant to Rule 23(b) (2), defendants rely on their previous arguments that the factual circumstances surrounding each plaintiff's exclusion is unique, including plaintiffs' request for a compensatory fund. The complaint alleges, however, that the defendants have adopted a policy or practice of providing legally inadequate notice or procedure prior to excluding disabled students from school. The Court of Appeals found similar allegations sufficient to satisfy Rule 23 (b) (2) in Marisol A. See Marisol A., 126 F.3d at 378 (affirming certification pursuant to 23(b) (2) where complaint alleged "central and systemic" failures); 7A WRIGHT ET AL., § 1775 at 449
(class maintainable where action toward class may be viewed as part of a pattern of activity).
The plaintiffs' request for individually determined compensation does not preclude maintenance of the class under

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 24 of 28 PageID #: 729
- 24 Rule 23(b) (2). When compensatory damages are sought in conjunction with injunctive relief, a class can be maintained under Rule 23(b) (2) when two conditions are satisfied: 1) class treatment is efficient and manageable; and 2) the value to the plaintiffs' of the injunctive relief predominates over the value of the monetary relief. Robinson, 267 F.3d at 164. With regard to the predominance of injunctive and declaratory relief, Robinson instructs the Court to consider two factors: 1) whether reasonable people would bring the suit to obtain the injunctive and declaratory relief sought even in the absence of individual compensation; and 2) the injunctive or declaratory relief would be reasonably necessary and appropriate were the plaintiffs to succeed on the merits. Id. at 164.
I conclude that the value to the plaintiffs of injunctive and declaratory relief predominates over any monetary relief sought. Plaintiffs are alleged to have been denied and are at risk of being denied essential educational opportunities. The Court is therefore satisfied that "even in the absence of a possible monetary recovery, reasonable plaintiffs would bring suit to obtain the injunctive or declaratory relief sought." Robinson, 267 F.3d at 164.
I am also satisfied that should plaintiffs prevail, injunctive or declaratory relief would be reasonably necessary. Private plaintiffs are authorized to enforce the IDEA by seeking injunctive and declaratory relief. See D.D. ex rel V.D. v. New York City Bd. of Educ., 03-CV-2489, 2004 WL 633222 (E.D.N.Y.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 25 of 28 PageID #: 730
- 25 -
March 30, 2004) (certifying class seeking injunctive and compensatory relief under the IDEA pursuant to Rule 23(b) (2)). The class is accordingly maintainable pursuant to Rule 23 (b) (2).
Where a class is maintainable under either Rule 23 (b) (3) or Rule 23 (b) (2), the preferable course is to certify pursuant to Rule 23(b) (2). Duprey v. Connecticut Dept. of Motor Vehicles, 191 F.R.D. 329, 339-40 (D.Conn. 2000); 7A WRIGHT ET AL., § 1775 at 491-92. Accordingly, the Court certifies the class pursuant to Rule 23 (b) (2).
Sub-Classes Plaintiffs also seek to certify two subclasses. First,
the proposed "Alternative Instruction" subclass would consist of plaintiffs who were identified as disabled by the defendants and referred to alternative programs, but those alternative programs did not comply with the mandates of the IDEA or New York law. Second, plaintiffs propose the "Child Find" subclass, which would consist of students who, though they are disabled, have not been classified as such by defendants. This subclass would share the common legal question of whether the defendants had established adequate policies and procedures for identifying disabled students and referring them for evaluation, rather than excluding them for behavioral problems. Defendants do not challenge plaintiffs' subclasses. Nor do defendants argue that additional subclasses are needed.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 26 of 28 PageID #: 731
- 26 -
Federal Rule of Civil Procedure 23(c) (4) allows the
Court to divide a class into various subclasses. Such subdivision enables courts to adjudicate class actions that would otherwise be dismissed as unmanageable. 7B WRIGHT ET AL., § 1790 at 269. This subdivision may occur as needed, and may be imposed
on the Court's initiative. Id. at 269-70. Each subclass must
independently meet the requirements of Rule 23(a) and one of the categories specified in subsection (b) . In re MTBE Products Liability, 209 F.R.D. 323, 351 (S.D.N.Y. 2002).
The district court in Marisol A. certified two similar classes. One consisted of children who were in custody of New York's Administration for Children's Services. The other consisted of children not in custody, but who were at a risk of abuse and whose status should be known by Children's Services. Marisol A., 126 F.3d at 378. Although the Court of Appeals affirmed class certification, it remanded for further division
into subclasses. Id. It instructed the district court to
ftengage in rigorous analysis of plaintiffs' legal claims and factual circumstances to ensure that appropriate subclasses are identified" and that each subclass was tied to an appropriate
representative. Id. In particular, the district court was to
identify for each subclass: 1) a discrete legal claim at issue; 2) the named plaintiffs who are aggrieved under each individual claim; and 3) the subclasses that each named plaintiff
represents. Id.

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 27 of 28 PageID #: 732
- 27 The Court of Appeals stated that this procedure would serve several functions. By identifying the specific issues to be tried, discovery could be focused. Id. at 379. Claims for which no named plaintiff is an adequate representative can be weeded out. Id. The trial can be conducted in a more orderly manner by tying the order of proof to claims raised. Id. Finally, subclass identification provides defendants with notice of the specific charges they face. Id. In light of Marisol A., subclasses are warranted. Nevertheless, neither party has briefed the issue. Plaintiffs have not argued that the subclasses identified satisfy Rule 23 requirements. Nor have they adequately identified for each subclass the three factors the Marisol A. court found relevant. Nor have defendants addressed whether plaintiffs' proposed subclasses are appropriate or whether more subclasses are warranted. The motion for certification of subclasses is therefore denied without prejudice.
Conclusion
For the reasons stated, the plaintiffs' motion to certify a class of ftdisabled New York City children age three through twenty-one who have been, will be, or are at risk of being excluded from school without adequate notice and deprived of a free and appropriate education through suspensions, expulsions, transfers, discharges, removals and denials of

Case 1:02-cv-05118-ENV-MDG Document 70 Filed 08/18/04 Page 28 of 28 PageID #: 733

- 28 accessn is granted. The motion to certify subclasses is denied

without prejudice. The Clerk is directed to furnish a filed copy of the

within to all parties and to the magistrate judge.

Dated

SO ORDERED. Brooklyn, New York August[~ , 2004

___ /

 
 Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 1 of 9 PageID #: 2224

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------------------------- x

EB, LB 1, HG, KSG, AJ, IP, SM, JW, DR, :

on behalf of themselves and all others

:

similarly situated,

:

:

Plaintiffs, :

:

-against-

:

:

NEW YORK CITY DEPARTMENT OF :

EDUCATION, NEW YORK CITY

:

BOARD OF EDUCATION, JOE KLEIN, :

in his individual and official capacity as :

Chancellor of the New York City School :

District,

:

:

Defendants. :

:

------------------------------------------------------- x

MEMORANDUM & ORDER PRELIMINARILY APPROVING THE
PROPOSED SETTLEMENT AND APPROVING
PLAINTIFFS’ NOTICE OF CLASS ACTION
SETTLEMENT AND FAIRNESS HEARING
02-CV-5118 (ENV)(MDG)

VITALIANO, D.J.

On August 17, 2004, the Court certified this action on behalf of

“disabled New York city children age three through twenty-one who have

been, will be, or at risk of being excluded from school without adequate notice

and deprived of a free and appropriate education through suspensions,

expulsions, transfers, discharges, removals and denials of access.” On June

29, 2005, the Court recertified the class, under Rule 23(b)(2), to consist of

“[d]isabled New York City children age three through twenty-one who have

been, will be, or at risk of being excluded from school for disciplinary reasons

1

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 2 of 9 PageID #: 2225
without adequate notice and deprived of a free and appropriate education through suspensions, expulsions, transfers, discharges, removals, denials of access or other changes of educational placement,” and certified six subclasses under Rule 23(c)(4). The plaintiffs, without opposition, now move for preliminary approval of the proposed final settlement, the proposed notice of settlement and of the class action settlement procedure. They move in conformity with Rules 23(a) and 23(b)(2) and to implement the settlement of the parties as set forth in the Stipulation and Agreement of Settlement they filed on May 13, 2015.
Class actions may settle only with court approval. Fed. R. Civ. P. 23(e). Under the general procedure outlined by Rule 23(e), the Court must direct notice in a reasonable manner to all class members bound by the proposed settlement, hold a hearing, and permit class members to object to the proposed settlement. Following the hearing, the Court may approve the proposed settlement only upon a specific finding that it is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e). “As part of Rule 23(e)’s ‘fairness, reasonableness, and adequacy’ inquiry the court must first determine whether the terms of the proposed settlement warrant ‘preliminary approval.’” Bourlas v. Davis Law Assocs., 237 F.R.D. 345, 355 (E.D.N.Y. 2006). Approval of a proposed class action settlement falls within the discretion of the trial
2

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 3 of 9 PageID #: 2226
court, see Maywalt v. Parker & Parsley Petro. Co., 67 F.3d 1072, 1079 (2d Cir. 1995), and “[i]n exercising this discretion, courts should give proper deference to the private consensual decision of the parties.” Willix v. Healthfirst, Inc., No. 07-CV-1143, 2010 WL 5509089, at *2 (E.D.N.Y. Nov. 29, 2010) (internal quotation marks and citation omitted).
In granting preliminary approval, the Court is only required to find that there is “probable cause to submit the [settlement] proposal to class members and hold a full-scale hearing as to its fairness.” In re Traffic Exec. Ass’n-E. R.R., 627 F.2d 631, 634 (2d Cir. 1980) (internal quotation marks and citation omitted); Puglisi v. TD Bank, N.A., No. 13-CV-637, 2015 WL 574280, at *1-2 (E.D.N.Y. Feb. 9, 2015). “‘[W]here the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representative[s] or segments of the class and falls within the reasonable range of approval, preliminary approval is granted.’” Bourlas, 237 F.R.D. at 355 (quoting In re Nasdaq Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997) (citing Manual for Complex Litigation (Third) § 30.41 (1995); In re IPO Securities Litig., 226 F.R.D. 186, 191 (S.D.N.Y. 2005))). Then, upon preliminary approval, “the court ‘must direct the preparation of notice of the certification of the settlement class, the proposed settlement[,] and the date of
3

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 4 of 9 PageID #: 2227
the final fairness hearing.’” Id. (quoting In re IPO, 226 F.R.D. at 191). Regarding notice, pursuant to Rule 23(c)(2)(A), “[f]or any class
certified under [23(b)(2)], the court may direct appropriate notice to the class.” “[T]he notice must be of such nature as reasonably to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance.” McReynolds v. Richards-Cantave, 588 F.3d 790, 804 (2d Cir. 2009) (alteration and internal quotation marks omitted) (quoting Soberal-Perez v. Heckler, 717 F.2d 36, 43 (2d Cir. 1983) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950))).
Applying these principles, the Court grants preliminary approval of the settlement memorialized in the Stipulation, concluding that the notice to the class and the proposed notice forms are appropriate, meet the requirements of Rule 23 and due process, and constitute the best notice practicable under the circumstances. The Court also finds that the Stipulation is the result of extensive, arm’s length negotiations, and, accordingly, the Court determines that there is probable cause to submit the proposed settlement to class members and thereafter hold a final hearing as to its fairness.
With the Court having read and considered the Stipulation and the accompanying documents, and the parties to the Stipulation having consented
4

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 5 of 9 PageID #: 2228
to the entry of this Order, as more fully set forth in the Stipulation, and all terms used herein having the meanings defined in the Stipulation, it is, therefore, ORDERED that: 1. A hearing (the “Settlement Fairness Hearing”) pursuant to Rule 23(e) is
hereby scheduled to be held before the Court on July 23, 2015 at 9:30 a.m. for the following purposes: a) To determine whether the proposed Settlement is fair, reasonable,
and adequate and should be approved by the Court; b) To determine whether the Order and Final Judgment as provided
under the Stipulation should be entered, dismissing the Complaint herein, on the merits and with prejudice, and to determine whether the release by the Class of the Settled Claims, as set forth in the Stipulation, should be provided to the Released Parties; c) To determine whether the proposed injunctive obligations in the Stipulation are fair and reasonable and should be approved by the Court; and d) To rule upon such other matters at the Court may deem appropriate. 2. The Court approves the form, substance, and requirements of the Notice of Proposed Settlement (the “Settlement Notice”), annexed to the Stipulation as Attachment F, and the Short Notice of Proposed Settlement
5

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 6 of 9 PageID #: 2229
(the “Short Form Notice”), annexed to the Stipulation as Attachment E, and directs Defendants, within ten (10) business days of the date of entry of this Order, to post the Short Form Notice in all Suspension Sites, DOE Pathways to Graduation Sites, Referral Centers, DOE suspension hearing offices, and Committee on Special Education offices, and shall maintain those postings and make the Settlement Notice accessible to parents and students at those locations until the conclusion of the Settlement Fairness Hearing. Defendants are further directed to send copies of the Short Form Notice to the New York City Impartial Hearing Office, to all network and cluster leaders or any successor structure, to the Assistant for Special Education for each network or any successor structure, and to any CBO with which DOE has a contract to provide GED-related services to DOE high school students and request that they post the Short Form Notice until the conclusion of the Settlement Fairness Hearing. 3. The Court directs that Defendants shall cause the Short Form Notice to be published once in the New York Post and El Diario as soon as practicable after the Settlement Notice and Short Form Notice have been posted, but in no event more than ten (10) business days after the posting. Defendants shall, at or before the Settlement Fairness Hearing, file with the Court proof of publication of the Settlement Notice.
6

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 7 of 9 PageID #: 2230
4. The Court directs Class Counsel to post the Settlement Notice on the website of Advocates for Children of New York, Inc. and directs Defendants to post a link on the DOE’s website to another website that will post the Settlement Notice.
5. Class Members shall be bound by all determinations and judgments in this Action, whether favorable or unfavorable.
6. The Court will consider comments and/or objections to the Settlement, including the Injunctive Obligations, only if such comments or objections and any supporting papers are filed in writing with the Clerk of Court, United States District Court, 225 Cadman Plaza East, Brooklyn, New York 11201, and copies of all such papers are served, on or before July 16, 2015, upon each of the following: Rebecca Shore Advocates for Children of New York, Inc. 151 West 30th Street, 5th Floor New York, New York 10001; and Janice Birnbaum New York City Law Department—General Litigation Division 100 Church Street, Room 2-195 New York, New York 10007
7. Attendance at the Settlement Fairness Hearing is not necessary; however, persons wishing to be heard orally with regard to the approval of the Settlement, including the Injunctive Relief, are required to indicate in a
7

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 8 of 9 PageID #: 2231
written submission their intention to appear at the hearing and file such submission with the Clerk of the Court, United States District Court, 225 Cadman Plaza East, Brooklyn, New York 11201, and copies of all such papers must be served, on or before July 16, 2015, upon each of the following:
Rebecca Shore Advocates for Children of New York, Inc.
151 West 30th Street, 5th Floor New York, New York 10001; and
Janice Birnbaum New York City Law Department—General Litigation Division
100 Church Street, Room 2-195 New York, New York 10007
Persons who intend to comment on or object to the Settlement, including the Injunctive Obligations, and desire to present evidence at the Settlement Fairness Hearing must include in their written submissions the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the Settlement Fairness Hearing. Class Members do not need to appear at the hearing or take any other action to indicate their approval. 8. Pending final determination of whether the Settlement should be approved, the Lead Plaintiffs, all Class Members, and each of them, and anyone who acts or purports to act on their behalf, shall not institute,
8

Case 1:02-cv-05118-ENV-MDG Document 222 Filed 05/19/15 Page 9 of 9 PageID #: 2232

commence, or prosecute any action which asserts Settled Claims against any Released Party. However, nothing in the Stipulation or in this Order shall prevent Class Members from seeking relief for Reserved Claims in the appropriate forum. 9. This Order shall not be construed or used as an admission, concession, or declaration by or against any Defendants of any fault, wrongdoing, breach, or liability. This Order shall not be construed or used as an admission, concession, or declaration by or against Lead Plaintiffs or the Class that their claims lack merit or that the relief requested in the Action is inappropriate, improper, or unavailable, or as a waiver by any Party of any defenses or claims he, she, or it may have. 10. The Court reserves the right to continue the Settlement Fairness Hearing without further written notice. 11. The Court retains exclusive jurisdiction over the Action to consider all further matters arising out of or connected with the Settlement.

So Ordered.

Dated:

Brooklyn, New York May 19, 2015

/S/ Eric N. Vitaliano
ERIC N. VITALIANO United States District Judge

9

 
 Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 1 of 13 PageID #: 2293

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------- x EB, LB 1, HG, KSG, AJ, IP, SM, JW, DR, on behalfofthemselves and all others similarly situated,
Plaintiffs,
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY BOARD OF EDUCATION, JOE KLEIN, in his individual and official capacity as Chancellor ofthe New York City School District,

MEMORANDUM & ORDER APPROVING
SETTLEMENT AND ENTERING FINAL
JUDGMENT
02-CV-5118 (ENV)(MDG)

Defendants.

------------------------------------------------------- x VITALIANO, D.J.
On May 19, 2015, the Court granted preliminary approval of the class action settlement as set forth in the Stipulation and Agreement of Settlement (the "Stipulation") filed on May 13, 2015. (Order, ECF No. 222). The Court concluded that the proposed notice to class1 was appropriate, met the

1 On August 17, 2004, the Court certified this action on behalf of "disabled New York City children age three through twenty-one who have been, will be, or at risk of being excluded from school without adequate notice and deprived of a free and appropriate education through suspensions, expulsions, transfers, discharges, removals and denials of access." (Mem. & Order, ECF No. 70). On June 29, 2005, the Court recertified the class, under Rule 23(b)(2), to consist of "[d)isabled New York City children age three through
1

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 2 of 13 PageID #: 2294
requirements of Rule 23 of the Federal Rules of Civil Procedure, as well as due process, and constituted the best notice practicable under the circumstances. (Id. at 4). The Court also found that the Stipulation was the result of extensive arm's-length negotiations. (Id.). Accordingly, the Court ordered the parties to comply with their respective notice obligations as set forth in the Stipulation, and directed any objectors to file with the Clerk of Court, in writing, their comments or challenges to the Stipulation on or before July 16, 2015. This deadline has passed, and no objections were received by the Court, nor were any received by plaintiffs or defendants. (See Shore Deel., ECF No. 227, at, 7).
Today, this Court conducted a fairness hearing at which the parties confirmed that all notice requirements contained in the Court's preliminary approval order were followed, (Birnbaum Deel., ECF No. 224; Nathan Deel., ECF No. 223; Shore Deel., ECF No. 227), and, as expected, nobody appeared to object to the settlement. Having considered all of the submissions and arguments before it, the Court finds, as discussed below, that the settlement is fair, reasonable, and adequate, and, accordingly, plaintiff's motion for final
twenty-one who have been, will be, or at risk of being excluded from school for disciplinary reasons without adequate notice and deprived of a free and appropriate education through suspensions, expulsions, transfers, discharges, removals, denials of access or other changes of educational placement," and certified six subclasses under Rule 23(c)(4). (Mem. Op. & Order, ECF No. 133).
2

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 3 of 13 PageID #: 2295
approval of the settlement is granted. Discussion
Rule 23(e) requires court approval for the settlement of a class action to ensure that it is both procedurally and substantively fair, reasonable, and adequate. Fed. R. Civ. P. 23(e). Of course, a "presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's-length negotiations between experienced, capable counsel after meaningful discovery." Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (quoting Manualfor Complex Litigation (Third)§ 30.42 (1995)). Without "'fraud or collusion,"' a court "'should be hesitant to substitute [its] judgment for that of the parties who negotiated the settlement."' Shepard v. Rhea, No. 12-CV-7220, 2014 WL 5801415, at *7 (S.D.N.Y. Nov. 7, 2014) (citations omitted). In light of the "strong judicial policy favoring settlements," courts examine the procedural and substantive fairness of the class action settlement. Wal-Mart Stores, 396 F.3d at 116.
To determine procedural fairness, the Court inspects the negotiation process that resulted in settlement. Id.; D'Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001). Here, as discussed in the Court's preliminary approval order, the settlement was reached after the parties engaged in extensive arm's-length settlement negotiations. For over 13 years, under the close and
3

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 4 of 13 PageID #: 2296
careful supervision of Magistrate Judge Marilyn D. Go, the parties have engaged in: extensive discovery, including voluminous document production, numerous depositions, and the retention of experts; continuous pre-trial case management; and, after a stay of discovery in 2008, highly productive settlement negotiations before Magistrate Judge Go. The parties' settlement negotiations involved competent and informed counsel, which, of course, "rais[es] a presumption that the settlement achieved meets the requirements of due process." Shepard, 2014 WL 5801415, at *8 (citing Wal-Mart Stores, 396 F.3d at 116; In re Penthouse Exec. Club Comp. Litig., No. 10-CV-1145, 2013 WL 1828598, at *2 (S.D.N.Y. Apr. 30, 2013)). Without hesitation, the Court concludes that the settlement memorialized in the Stipulation is procedurally fair, reasonable, adequate, and obviously not the result of fraud or collusion. See Fed. R. Civ. P. 23(e).
For substantive fairness, the Court is required to measure the settlement's terms and determine whether they are fair, adequate, and reasonable according to the factors set forth in City ofDetroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000). D'Amato, 236 F.3d at 86. The Grinnell factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class; (3) the stage of the proceedings
4

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 5 of 13 PageID #: 2297
and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of the best possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463. Clearly, since the case involves declaratory and injunctive relief, and does not have damages or a settlement fund, "there is no need to examine the last three Grinnell factors." Shepard, 2014 WL 5801415, at *8 (citing Ingles v. Toro, 438 F. Supp. 2d 203, 211 (S.D.N.Y. 2006); Marison A. v. Giuliani, 185 F.R.D. 152, 162 (S.D.N.Y. 1999), aff'd sub nom. Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000)). Furthermore, on the fifth factor, the Court "will evaluate the risks of establishing remedies instead of the risks of establishing damages." Id. (citing Giuliani, 185 F.R.D. at 162).
The factors set forth in Grinnell clearly weigh in favor of final approval of the settlement. First and foremost, having already taken 13 years to approach resolution, this litigation is beyond complex, expensive, and long. A trial here would require extensive, technical, and costly class-wide examination of defendants' practices, policies, and actions dating back to 2002
5

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 6 of 13 PageID #: 2298
and earlier. Without settlement, there would be evermore years of litigation. Such expense and uncertainty warrants approval of settlement where it is appropriately reached. See In re PaineWebber Ltd. P'ships Litig., 171 F.R.D. 104, 125-26 (S.D.N.Y. 1997) (holding the highly complex nature of the case, which, "has already consumed large sums of money[,] many thousands of hours of labor," and, if litigated, would require "substantial expenditures," "heavily" favored final approval), aff'd, 117 F.3d 721 (2d Cir. 1997).
As for the second factor, the strength of the settlement is manifest through the lack of objections. As stated at the fairness hearing and in the parties' papers, notices were: posted in all suspension sites, DOE pathways to graduation sites, referral centers, DOE suspension hearing offices, and Committee of Special Education offices; forwarded to the New York City Impartial Hearing Office, all network and clusters leaders, the Assistant for Special Education for each network, and to any CBO with which DOE has a contract to provide GED-related services; and published in the New York Post, El Diario, and, in multiple languages, on the websites of Advocates for Children of New York, Inc. and DOE. (Birnbaum Deel.; Nathan Deel.; Shore Deel.). No class member has objected, which demonstrates that the class approves of the settlement and supports its final approval. See Shepard, 2014 WL 5801415, at *9 (compiling cases).
6

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 7 of 13 PageID #: 2299
The amount of progress made in this complex case not only addresses the first factor, but the third factor as well. With the experienced and skillful guidance of Magistrate Judge Go, the parties have thoroughly completed expansive discovery and clearly had "'an adequate appreciation of the merits of the case before negotiating"' the settlement. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004) (citation omitted). Indisputably, the parties have a detailed familiarity with the factual and legal issues underlying this case, which, of course, weighs in favor of final approval. See Heyer v. N.Y.C. Hous. Auth., 80-CV-1196, 05-CV-5286, 2006 WL 1148689, at *3 (S.D.N.Y. Apr. 28, 2006).
Without question, in the absence of a settlement, the parties and Magistrate Judge Go's prolonged efforts would be in vain, and there would be substantial risk for the class in establishing liability, obtaining remedies, and maintaining the class action through trial. See Wal-Mart Stores, 396 F.3d at 118; Padro v. Astrue, No. ll-CV-1788, at *6 (E.D.N.Y. Oct. 18, 2013) (discussing the fourth, fifth, and sixth factors simultaneously because "each of these factors concern the risks inherent in proceeding with [the] action"). The fourth, fifth, and sixth factors "do[) not require the Court to adjudicate the disputed issues or decide unsettled questions; rather, the Court need only assess the risks of litigation against the certainty of recovery under the
7

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 8 of 13 PageID #: 2300
proposed settlement." In re Global Crossing Sec. & ERIS Litig., 225 F.R.D. 436, 459 (S.D.N.Y. 2004) (citation omitted); see also Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982). Plaintiffs point out that, alongside the inherent uncertainty of proceeding toward trial with such a complex case, continued litigation places class members at risk of losing appropriate educations services, or instruction entirely, as a result of disciplinary actions that remove class members from the classroom. (Pis.' Br., ECF No. 226, at 20). Where, as here, settlement has been reached after an arm's-length negotiation, and class counsel affirms that, in their informed opinion, the risks associated with continuing the action are substantial and heavily favor settlement, '"great weight is accorded to the recommendations of counsel, who are most closely acquainted with the facts of the underlying litigation.'" Padro, 2013 WL 5719076, at *7 (quoting PaineWebber, 171 F.R.D. at 125). After carefully reviewing the Stipulation and counsels' arguments, the Court finds that the settlement is sufficiently favorable and that relief now is far more beneficial than the uncertain possibility of relief following a long, complicated, and expensive trial.
Lastly, since the relief sought here is injunctive relief, the Court should make a "larger determination ofwhether the settlement in reasonable.'' Padro, 2013 WL 5719076, at *7. "'In deciding whether to approve a proposed
8

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 9 of 13 PageID #: 2301
class settlement, the most significant factor for the district court is the strength of the claimants' case balanced against the settlement offer."' Id. (quoting Plummer v. Chem. Bank, 668 F.2d 654, 660 (2d Cir. 1982)). Here, the settlement offers class members significant injunctive relief: defendants are required to take numerous actions relating to the suspensions, removals, transfers, and discharges of class members from DOE schools to ensure the class members are not deprived of a free appropriate public education. Plaintiffs have also obtained the rights to monitor defendants to ensure their compliance with the terms of this hard-fought settlement. Furthermore, as counsel for both parties has averred, and to which this Court gives considerable weight, id., the settlement is reasonable and "awards significant injunctive relief'' to the class. (Pis.' Br., at 20). Accordingly, with all factors weighing in favor of final approval, the Court concludes that the settlement is fair, reasonable, and adequate.
Conclusion With the Court having carefully considered the Stipulation, as well as the parties' submissions and arguments in open court, and in considering the principles discussed above, for the purposes of the settlement, with all terms having the meanings defined in the Stipulation, the Court finds that: A. The Court has jurisdiction over the subject matter of the Action,
9

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 10 of 13 PageID #: 2302
the Lead Plaintiffs, all Class Members, and Defendants; B. The Class and Subclasses, which include the Superintendent's
Suspensions and Expulsions Subclass; Building Level Disciplinary Proceedings Subclass; Class Members without IEPs Subclass; and Section 504 Subclass, as defined in the Stipulation, were properly subject to certification pursuant to Rule 23, as set forth in the Memoranda and Orders dated August 17, 2004 and June 29, 2005;
C. Notice of the proposed settlement of this Action was given to all Class Members by publication. The form and method of notifying the class of the proposed settlement met the requirements of Rule 23 and due process, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto;
D. In entering into the Stipulation, no party has relied on any representations or arguments by any other party regarding any substantive or procedural issue in this action; and
E. The parties and their counsel have complied with the requirements of the Federal Rules of Civil Procedure and all other statutes and rules relating to the prosecution, defense, and settlement of the action as to all proceedings in this matter.
10

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 11 of 13 PageID #: 2303
It is therefore ORDERED that: 1. The settlement set forth in the Stipulation is approved as fair, reasonable and adequate, and the Class Members and the parties are directed to consummate the settlement in accordance with the terms and provisions of the Stipulation; 2. This Action, which the Court finds was filed on a good faith basis in accordance with Rule 11, based on all publicly available information, is hereby dismissed with prejudice and without costs, except as provided in the Stipulation, as against Defendants; 3. Class members and the successors and assigns of any of them are hereby permanently barred and enjoined from instituting, commencing, or prosecuting the Settled Claims against the Released Parties. The Settled Claims are hereby compromised, settled, released, discharged, and dismissed as against the Released Parties on the merits and with prejudice by virtue of these proceedings and this Order and Final Judgment. Notwithstanding the provisions of this paragraph, nothing in the Stipulation or in this Order shall prevent Class Members from seeking relief for Reserved Claims in the appropriate forum; 4. The Injunctive Obligations are approved as fair and reasonable, and Defendants are ordered to comply with the terms of the Injunctive
11

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 12 of 13 PageID #: 2304
Obligations as set forth in the Stipulation; 5. As set forth in the Stipulation, Class Counsel is entitled to a
reasonable attorneys' fee and reimbursement of expenses. The Parties agree to negotiate the amount of fees incurred as of December 31, 2012, and if they are not able to do so within ninety (90) days of the Effective Date, Class Counsel may submit an application for counsel fees to the Court, to which Defendants shall have an opportunity to respond consistent with the Federal Rules of Civil Procedure and the Local Rules of this Court;
6. As set forth in the Stipulation, Plaintiffs are also entitled to reasonable attorneys' fees and reimbursement of expenses for time spent on this litigation from January 1, 2013 through the Effective Date as well as time spent executing, monitoring, and enforcing the terms of this Stipulation. Class Counsel will submit a request to Defendants' Counsel for these fees no later than June 30 of each calendar year and within sixty (60) days following the end of the Stipulation Period and/or any extension thereof. If the Parties cannot agree within ninety (90) days of Plaintiffs' request for fees, Plaintiffs' Counsel will apply to the Court for an award of attorneys' fees and reimbursement expenses. DOE shall have thirty (30) calendar days to respond and oppose any such application;
7. Exclusive jurisdiction is hereby retained over the Parties and the
12

Case 1:02-cv-05118-ENV-MDG Document 228 Filed 07/24/15 Page 13 of 13 PageID #: 2305

Class Members for the administration, interpretation, effectuation, or enforcement of the Stipulation and this Order and Final Judgment, and

including any application for fees and expenses incurred executing and enforcing the terms of the Stipulation set forth in paragraphs 5-6 above;

8. In the event that the Settlement does not become Final, (i) this Order and Final Judgment shall be rendered null and void and shall be vacated nunc pro tune and (ii) the Action shall proceed as set forth in the Stipulation;
9. Without further order of the Court, the Parties may agree to

reasonable extensions of time to carry out any of the provisions of the

Stipulation; 10. There is no just reason for delay in the entry of this Order and

Final Judgment and immediate entry by the Clerk of Court is expressly directed pursuant to Rule 54(b).

11. The Clerk of Court is further directed to enter this case on the

docket of closed cases for administrative purposes.

So Ordered.

Dated:

Brooklyn, New York July 23, 2015

s/ENV

ERIC N. VITALIANO United States District Judge

13

 
 Case 1:02-cv-05118-ENV-MDG Document 229 Filed 07/24/15 Page 1 of 2 PageID #: 2306

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------X EB, LB 1, HG, KSG, AJ, IP, SM, JW, DR, on behalf of themselves and all others similarly situated,

JUDGMENT 02-CV- 5118 (ENV)

Plaintiffs,

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION; JOEL KLEIN, in his individual and official capacity as Chancellor of the New York City School District,

Defendants. --------------------------------------------------------------X

A Memorandum and Order of Honorable Eric N. Vitaliano, United States District

Judge, having been filed on July 24, 2015, granting Plaintiffs’ motion for final approval of the

settlement; and directing the Clerk of Court to enter judgment pursuant to Rule 54(b) of the Federal

Rules of Civil Procedure; it is

ORDERED and ADJUDGED that Plaintiffs’ motion for final approval of the settlement

is granted; and that judgment is hereby entered pursuant to Rule 54(b) of the Federal Rules of Civil

Procedure and in favor of Plaintiffs EB, LB 1, KSG, AJ, IP, SM, JW, and DR and against Defendants

New York City Department of Education, New York City Board of Education, and Joel Klein, in his

individual and official capacity as Chancellor of the New York City School District and as stated in the

Settlement.

Dated: Brooklyn, New York July 24, 2015

Douglas C. Palmer Clerk of Court

by: /s/ Janet Hamilton Deputy Clerk

Case 1:02-cv-05118-ENV-MDG Document 229 Filed 07/24/15 Page 2 of 2 PageID #: 2307

 
 Case 1:02-cv-05118-ENV-MDG Document 235 Filed 10/18/18 Page 1 of 3 PageID #: 2319 (

UNITED STATES DISTRICT COURTr EASTERN DISTRICT OF NEW YORK

FILED
USD,SK'rD.,V I
& 5 OCT 1 8 2018 A

EB,LB 1,HG,KSG,AJ,IP,SM,JW,DR,on behalfofthemselves and all others similarly situated,
Plaintiffs,
-against-

BROOKLYN OFFICE
NO.02 CV 5118(ENV/MDG)

NEW YORK CITY DEPARTMENT OF EDUCATION,et al..
Defendants.

STTPIJLATION AND PROPOSED ORDER
WHEREAS,the parties entered into a Stipulation and Agreement of Settlement
on May 13,2015,which was approved by this Court on July 24,2015(the"Stipulation");and WHEREAS,by Stipulation and Proposed Order dated August 29,2018,endorsed
by the Court by Order dated August 31, 2018, the parties agreed to modify the Stipulation, extending the Termination Date^ as it pertains to paragraph 18 of the Stipulation, and the
obligations relating to that paragraph by 30 days,to September 29,2018; WHEREAS,by Stipulation and Proposed Order dated September 28, 2018, the
parties agreed to extend the Termination as it pertains to paragraph 18 of the Stipulation as set
forth in that agreement; and
WHEREAS, the parties have agreed to modify the Stipulation submitted on September 28 as set forth herein;
NOW,THEREFORE,IT IS HEREBY STIPULATED AND AGREED,by
and between the undersigned,that: 'As defined in the Stipulation.
Error! Unknown document property name.
ch

Case 1:02-cv-05118-ENV-MDG Document 235 Filed 10/18/18 Page 2 of 3 PageID #: 2320
1. The parties agree to an extension ofthe Termination Date with respect to paragraph 18 ofthe Stipulation and the obligations relating to that paragraph (e.g., reporting obligations andjurisdiction paragraphs)by 8 days. For these obligations,the new Termination Date is October 23,2018. The Written Notice provided by Plaintiffs on September 14,2018 will be deemed provided ten business days before the
Termination Date.
2. Nothing herein will be deemed to affect the timeliness or untimeliness ofPlaintiffs' September 14,2018 notice or the timeliness or untimeliness ofany potential motion to enforce or extend,and nothing herein will be deemed to constitute an admission by the Defendants that Plaintiffs' September 14,2018 notice or any subsequent motion will become timely in light ofthe extension agreed upon herein. Further,nothing herein will be deemed to constitute a waiver ofany arguments concerning the timeliness or untimeliness ofPlaintiffs' notice or any subsequent motion,or a waiver
ofany arguments concerning Plaintiffs' compliance or non-compliance with paragraphs 74,76,and/or 77 ofthe Stipulation. 3. Nothing herein will be deemed to impact Plaintiffs' rights to make a motion pursuant to paragraph 81 ofthe Stipulation(concerning counsel fees).
Error! Unknown docomenJ property name.

Case 1:02-cv-05118-ENV-MDG Document 235 Filed 10/18/18 Page 3 of 3 PageID #: 2321

Dated: October 15, 2018 New York,New York

LOCATES YORK

CHILD

Rebecca Shore
151 West 30th Street, 5th Floor New York, New York 10001 Telephone:(212)822-9574

OF NEW COLORATION COUNSEL OF THE CITY OF
^..NEWYORK
Andrew Rauchberg 100 Church Street, Room 2-189 New York,New York 10007 Telephone:(212)356-0891
Counselfor Defendant

DAVIS POLK & WARDWELL LLP
Sharon Katz Michael Scheinkman
450 Lexington Avenue New York,New York 10017 Telephone:(212)450-4000
CounselforLead Plaintiffs and the Class

SO ORDERED:
Dated: nr.hkr

/s/ USDJ ERIC N. VITALIANO
Hon. Eric N. Vitaliano

Crrorl Unknown document property name.