PILLSBURY WINTHROP LLP William F. Abrams (State Bar No. 88805) Peter H. Nohle (State Bar No. 209446) 2475 Hanover Street Palo Alto, CA 94304-1114 Telephone: (650) 233-4500 Facsimile: (650) 233-4545
LEGAL SERVICES FOR CHILDREN Abigail Trillin (State Bar No. 179052) Molly L. Dunn (State Bar No. 217914) Gabriela Ruiz (State Bar No. 227110) 1254 Market Street, 3rd Floor San Francisco, CA 94102 Telephone: (415) 863-3762 Facsimile: (415) 863-7708
YOUTH AND EDUCATION LAW CLINIC William S. Koski (State Bar No. 166061) Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305 Telephone: (650) 724-3718 Facsimile: (650) 723-4426
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

YARMAN SMITH, a Minor, by LAGURTH SMITH, his guardian ad litem, JUAN MUNOZ, a Minor, by MARGARITA CHAVEZ, his guardian ad litem, SUMMER McNEIL, a Minor, by SONOBIA AUGUSTINE, her guardian ad litem, on behalf of themselves and all others similarly situated,

CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL

Plaintiffs,

(CLASS ACTION)

v.

CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
1

1 THE BOARD OF EDUCATION OF THE

BERKELEY UNIFIED SCHOOL DISTRICT;
2 GERALD HERRICK, Director of the Office of

3

Student Services of the Berkeley Unified School District, and MICHELE LAWRENCE,

4 Superintendent of the Berkeley Unified School District, in their personal and official capacities;

5 JOHN T. SELAWSKY, President of Board of

Education of the Berkeley Unified School District; 6 NANCY RIDDLE, Vice President of THE

7

BOARD OF EDUCATION of the Berkeley Unified School District; JOAQUIN J. RIVERA,

8 TERRY S. DORAN, and SHIRLEY ISSEL, Directors of THE BOARD OF EDUCATION of

9 the Berkeley Unified School District, in their

official capacities, 10

11

Defendants.

12

13

I. INTRODUCTION

14

1. This is an action pursuant to 42 U.S.C. §1983 and 28 U.S.c. §§ 2201 and 2202

15 that seeks declaratory relief, injunctive relief and damages against the Berkeley Unified School

16 District (the "District") and its officers and administrators (collectively, "Defendants") for their

17 policy and practice of unlawfully infringing upon the constitutional and statutory rights of

18 Plaintiffs and those similarly situated by wrongfully, arbitrarily and discriminatorily excluding

19 Plaintiffs from school or wrongfully and arbitrarily reassigning Plaintiffs from comprehensive

20 school programs to county community schools, continuation schools and independent study

21 programs for alleged violations of the District's student conduct rules. The Supreme Court in

22 the landmark case of Goss v. Lopez, 419 U.S. 565 (1975), held that the Due Process Clause of

the Fourteenth Amendment to the United States Constitution protects public school students' 23

liberty and property interests in their public education by requiring school officials to provide 24

25 sufficient notice and a hearing to students whom the officials want to exclude from school for

26 disciplinary reasons. Accordingly, the State of California has enacted a comprehensive

statutory scheme that delineates the minimum proceduraJ protections afforded students subject 27
to disciplinary proceedings. Cal. Educ. Code § 48900, et seq. Plaintiffs are African-American 28
CIVIL RlGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION); DEMAND FOR JURY TRIAL
2

1 and Latino students who have attended comprehensive middle school and/or high school in the

2 Berkeley Unified School District, but have been arbitrarily, without due process of law, and in

3 violation of the California Education Code, excluded from school or assigned by the District

4 and Gerald Herrick, Director of the Office of Student Services for the District, to non-

5 comprehensive community schools, continuation schools and independent study programs

6 (including Home Hospital Instruction) for disciplinary reasons. None of the Plaintiffs was

7 afforded appropriate notice and a hearing prior to his or her involuntary exclusion or transfer to

8 these substandard educational programs. All Plaintiffs have had their rights violated under the

9 Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States

10 Constitution, the Due Process provisions of the Constitution of the State of California, and

11 certain other federal and state laws and regulations.

12

2. Specifically, Defendants systematically failed to provide a proper notice and

13 hearing to Plaintiffs prior to involuntarily excluding them from school and/or involuntarily

14 reassigning them to county and community school or independent study programs. These

15 pohcies and practices violate Plaintiffs' rights to substantive and procedural due process under

16 the Fourteenth Amendment to the United States Constitution, Article 1, Section 7, of the

17 Constitution of the State of California, and the California Education Code section 48900, et seq.

18

3. Defendants' policies have had a disparate negative impact on and have arbitrarily

19 and discriminatorily excluded African-American and Latino students from comprehensive school

20 programs and assigning them to substandard alternative programs. Plaintiffs are informed and

21 believe that Defendants' conduct was undertaken with the intent to discriminate, and has had the

22 effect of discriminating against Plaintiffs because of their race, ethnic group identification or

23 color. Such policies and practices deny Plaintiffs their right to Equal Protection under the

24 Fourteenth Amendment to the United States Constitution, Al1icle 1, section 7, of the California

25 Constitution and California Government Code sections 11135-111139.5 and its implementing

26 regulations at Title 22, section 98000, et seq. of the California Code of Regulations.

27

4. Defendants systematically either refused to enron Plaintiffs in any public school

28
CIV1L RIGHTS COMPLAlNT FOR DECLARATORY RELIEF. INJUNCTlVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
3

program or enrolled Plaintiffs in substandard alternative programs, thereby illegally denying

2 Plaintiffs their fundamental right to a public education in violation of Article IX, sections 1 and 5

3 of the Constitution of the State of California and sections 46113 and 46141 of the California

4 Education Code.

5

5. Plaintiffs have sought unsuccessfully to persuade Defendants to discontinue these

6 unconstitutional and unlawful practices and compensate Plaintiffs for the harm these practices

7 have caused. Plaintiffs now require the aid of this Court in securing and enforcing their rights.

8 While Defendants have agreed to offer to the named Plaintiffs enrollment in comprehensive

9 programs, the District continues to refuse to offer such enrollment to those similarly situated.

10 Nor has the District provided compensatory damages and educational services to Plaintiffs and

11 those similarly situated or modified its policies and procedures to ensure that students will not be

12 unlawfully excluded from school in the future. With this Complaint, Plaintiffs seek declaratory

13 and injunctive relief that will require Defendants to bring their policies and practices into

14 compliance with state and federal law. They also seek compensatory relief in the form of

15 monetary damages and compensatory educational services to compensate for and repair the harm

16 visited upon Plaintiffs' education and hopes for future success.

17

II. JURISDICTION AND VENUE

18

6. Plaintiffs' claims for declaratory, injunctive and monetary relief are brought

19 pursuant to the Fourteenth Amendment to the Constitution of the Unites States; 42 U.S.C §

20 1983; 28 U.S.C §§ 2201 and 2202; A11icle 1, Section 7 of the California Constitution; Article

21 IX, sections 1 and 5 of the California Constitution; and the California Education Code sections

22 46113, 46141, and 48900, et seq.

23

7. This being an action for injunctive, declaratory and compensatory relief to

24 redress the deprivation under color of state law of rights, privileges and immunities guaranteed

25 by the United States Constitution, jurisdiction is conferred on this Court by 28 U.S.C §§ 1331

26 1343,220], and 2202. The Court has supplemental jurisdiction over the state law claims

27 alleged in this complaint pursuant to 28 U.S.C § 1367, as all state and federal law claims arise

28
CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
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1 from the same nucleus of operative facts.

2

8.

All administrative remedies have been exhausted, are inadequate to provide

3 relief to plaintiffs, and/or are rendered futile by the District's policies and practices.

4

9. A substantial part of the events giving rise to the claims alleged in this

5 Complaint arose in the County of Alameda, California. Venue is proper in the Northern

6 District of California.

7

III. INTRADISTRICT ASSIGNMENT

8

10. Assignment to the San Francisco Division of the Northern District of California

9 is proper because a substantial part of the events giving rise to the claims alleged in this

10 Complaint arose in the County of Alameda, California.

11

IV. PARTIES

12

A. Plaintiffs

13

11. Plaintiff Yarman Smith is and was at all relevant times a student at Berkeley

14 High School in Berkeley, California, and intends to continue his attendance in the District at

15 Berkeley High School until he graduates. Plaintiff Yarman Smith, as well as his proposed

16 guardian ad litem, is a resident of the County of Alameda, California.

17

12. Lagurtha Smith is Plaintiff Yarman Smith's parent and, by petition to this

18 Court, will request appointment as his guardian ad litem.

19

13. Plaintiff Juan Mufioz, although temporarily residing outside of the District, was

20 at all relevant times a student at Berkeley High School in Berkeley, California, and intends to

21 continue his attendance in the District at Berkeley High School until he graduates. Plaintiff

22 Juan Mufioz, as well as his proposed guardian ad litem, is a resident of the County of Alameda,

23 California.

24

14. Margarita Chavez is Plaintiff Juan Mufioz's parent and, by petition to this

25 Court, wm request appointment as his guardian ad litem.

26

15. Plaintiff Summer McNeil is and was at all relevant times a student at Berkeley

27 High School in BerkeJey, California, and intends to continue her attendance in the District at

28
CIVIL RIGHTS Al\'D DAMAGES (CLASS ACT10l\'): DEMAND FOR JURY TRIAL
5

1 Berkeley High School until she graduates. Plaintiff Summer McNeil, as well as her proposed

2 guardian ad liTem, is a resident of the County of Alameda, California.

3

16. Sonobia Augustine is Plaintiff Summer McNeil's parent and, by petition to this

4 Court, will request appointment as her guardian ad litem.

5

B. Defendants

6

17. Defendant Board of Education of the Berkeley Unified School District ("Board

7 of Education") is the elected policy-making body of the approximately 9,000 K-12 student and

8 500 employee Berkeley Unified School District. Under California law, the Board of Education

9 is the governmental body charged with the administration of public schools within the City of

10 Berkeley, California.

11

18. Defendant Gerald Herrick, Director of the Office of Student Services of the

12 Berkeley Unified School District, is an official with the District and, on information and belief,

13 is responsible for the implementation of state and federal law regarding student conduct and

14 discipline in the District, the implementation of student conduct and discipline policies

15 promulgated by the board of Education, and the assignment of students in the District to

16 alternative educational programs. All acts taken by Defendant Herrick were taken in the

17 course and scope of his employment and were taken under color of state law. Defendant

18 Herrick is sued here in his official and individual capacity.

19

19. Defendant Michele Lawrence, Superintendent of the Berkeley Unified School

20 District, is appointed by the Board of Education to implement policies created by the Board of

21 Education or mandated by state and federal law. Defendant Lawrence is ultimately and

22 specifically responsible for the implementation of state and federal law regarding student

23 conduct and discipline in the District, the implementation of student conduct and discipline

24 po1icies promulgated by the Board of Education, and the assignment of students in the District

25 to alternative educational programs. All acts taken by Defendant Lawrence were taken in the

26 course and scope of her employment and were taken under color of state law. Defendant 27 Lawrence is sued here in her official and individual capacity.

28
II

C1VIL RIGHTS COMPLAlNT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
6

1

20. Defendants John T. Selawsky, President of Board of Education of the Berkeley

2 Unified School District; Nancy Riddle, Vice President of The Board of Education of the

3 Berkeley Unified School District; and Joaquin J. Rivera, Terry S. Doran and Shirley IsseI,

4 Directors of the Board of Education of the Berkeley Unified School District, are public

5 officials of the Berkeley Unified School District who are charged with the duty of setting and

6 executing policy for the administration of the District, including policies regarding student

7 conduct and discipline. All acts taken by each of the individual Defendants were taken in the

8 course and scope of their employment and were taken under color of state law. Defendants

9 Selawsky, Riddle, Rivera, Doran and IsseI are sued here in their official capacity.

10

V. THE CONSTITUTIONAL AND STATUTORY FRAME'VORK

11

A. Fundamental Right to a Public Education

12

21. The California Constitution recognizes that "[a] general diffusion of knowledge

13 and intelligence [is] ... essential to the preservation of the rights and libe11ies of the people ...

14 ." Cal. Const., art. IX, § 1. In light of that principle, all minor children in California have the

15 fundamental right to a public education. Serrano v. Priest (Serrano f), 5 Cal. 3d 584, 608-09, 96

16 Cal. Rptr. 601,487 P.2d 1241 (1971); Serrano v. Priest (Serrano If), 18 Cal. 3d 728, 765-66, 135

17 Cal. Rptr. 345,557 P.2d 929 (1976). This right is guaranteed by Article IX, section 5 of the

18 California Constitution, which requires the Legislature to "provide for a system of common

19 schools by which a free school shall be kept up and support in each district ...." The Supreme

20 Court of California in Serrano I explained that a public education is a fundamental interest

21 because (1) it is essential to "preserving an individual's opportunity to compete successfully in

22 the economic marketplace, despite a disadvantaged background," id.at 609; (2) it is "universally

23 relevant" to the lives of all citizens, id.; (3) public education is one of the few government

24 services that has a "sustained, intensive contact with the recipient," id; (4) "education is

25 unmatched in the extent to which it molds the personality of the youth of society," id.at 609-] 0;

26 and (5) "education is so important that the state has made it compulsory-not only in the

27 requirement of attendance but also by assignment to a paI1icular district and school," ld. at 610.

28
CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELlEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL ,...,
I

1 Indeed, California law subjects all persons between the ages of 6 and 18 years old to compulsory

2 full-time education at a public school within their school district of residence. Cal. Educ. Code

3 § 48200.

4

B. Right to Due Process

5

22. The Fourteenth Amendment to the United States Constitution, and Article I of the

6 California Constitution, provide that no state shall make or enforce any law which shall abridge

7 the privileges or immunities of the citizens of the United States; nor shall any state deprive any

8 person of life, liberty or property without due process of law, or deny to any person the equal

9 protection of the laws.

10

23. As affirmed in Goss v. Lopez, 419 U.S. 565 (1975), all public school students

11 have liberty and property interests in public education that are protected under the Fourteenth

12 Amendment. Accordingly, public school students cannot be excluded from or denied such

13 education, even for a brief disciplinary suspension, without prior notice of the reason for such

14 action and an opportunity to respond to the charges in a hearing.

15

24. In 1976, the California Legislature adopted a statute, Cal. Stats. 1976, Ch. 1010,

16 codified at Cal. Educ. Code §§ 48900 et seq., as amended, incorporating the constitutional

17 safeguards for students facing suspension or expulsion, and providing certain procedural

18 protections for students for whom expulsion is recommended. This statutory scheme-which

19 provides the minimal procedural due process required by law to students who are subject to

20 school discipline proceedings-is described below.

21

25. Under California law, a student may only be denied the right to a public school

22 education during a short period of "suspension." "Suspension" is the "removal of a pupil from 23 ongoing instruction for adjustment purposes." Cal. Educ. Code § 48925. A single suspension

24 may be no longer than five days (see Cal. Educ. Code § 4891] (a)), while a student generally may 25 not be suspended for more than a total of 20 days in a school year (Cal. Educ. Code § 48903(a)). 26 Any longer involuntary removal of a student from the comprehensive educational program for 27 disciplinary reasons requires the District to comply with the process for "expelling" a student

28
t

CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTlVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
8

1 from school.

2

26. "Expulsion" is the removal of a student from either the immediate supervision

3 and control or the general supervision of school personnel. Cal. Educ. Code § 48925(b). In

4 effect, an expelled student is ban-ed from attending any school within the regular school district

5 during the term of expulsion and is instead assigned to an alternative school program, most

6 commonly a county community school. Cal. Educ. Code § 48916.1. Education Code section

7 48900, et seq., detail the circumstances under which a student may be refen-ed for expulsion as

8 well as the student's right to due process under the law in such an instance. Upon determining

9 that a student has committed one of 20 offenses enumerated in sections 48900 through 48900.4, 10 a principal may refer a student for expUlsion. Under Education Code section 48918, a student 11 facing expUlsion must, at a minimum, be afforded the following due process rights: (1) the right 12 to a hearing before the board of education (or an administrative hearing panel orDfficer) within 13 30 schooldays of the date the principal or superintendent determined that the pupil had 14 comIllitted an expellable offense; (2) at least 10 days prior to the date of the hearing, written 15 notice of the hearing, including the date and place of the hearing, a statement of specific facts 16 and the charges upon which the proposed expUlsion is based, a copy of the disciplinary rules of 17 the district that relate to the alleged violation, notice of the opportunity for the pupil and/or 18 pupil's parent or guardian to appear in person or to be represented by a nonattorney advisDr, to 19 inspect and obtain all documents to be used at the hearing, to confront and question all witnesses 20 who testify at the hearing, to question all other evidence presented, and to present oral or 21 documentary evidence on the pupil's behalf, including witnesses. Cal. Educ. CDde § 48918(b). A 22 decision to expel must be supp011ed by a finding that the student committed an expellable 23 offense and, in all cases except those involving the "zero tolerance" offenses enumerated in 24 section 489] 5(c) of the California Education Code, a finding that either other means of 25 correction are not feasible or have repeatedly failed to bring about proper conduct, or due to the 26 nature of the act, the presence of the pupil causes a continuing danger to the physical safety of 27 the pupil or others. Cal. Educ. Code § 48915. These required findings must further be based upon

28
11

CIVIL RIGHTS COMPL.AINT FOR DECLARATORY RELIEF. INJUNCTlVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JUR'{ TRIAL
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substantial evidence relevant to the charges adduced at the expulsion hearing and may not be

2 based solely upon hearsay evidence. CaL Educ. Code § 48918(f).

3

27. If, following an expulsion hearing, the student is not ordered expelled, the board

4 must immediately reinstate and permit the pupil to a classroom program, any other instructional

5 program, a rehabilitation program, or any combination of these programs. Cal. Educ. Code 6 § 48918(e). Thus, while not expe]]ed, a student may be ordered to attend an educational program 7 at a district school other than the one he or she attended when referred for expUlsion. This 8 placement decision is to be made by the superintendent or designee after consultation with

9 school district personnel, including the pupil's teachers and the pupil's parent or guardian.

10

28. If a student is ordered expe]]ed, the board of education may refer the student to a

11 county community school program or, with the exception of those students found to have

12 committed a "zero tolerance" offense, may refer the expelled student to another comprehensive

13 or alternative school program within the district. CaL Educ. Code § 48915.

14

29. Thus, after an expUlsion hearing, through which the student has been afforded

15 significant due process rights, the board of education may impose the involuntary transfer of a

16 student to a county community or continuation school.

17

c. The State Legislative Preference for a Comprehensive School Program and

Alternatives to Comprehensive School Programs

18

19

30. Most children in California attend "comprehensive schools"-full-day programs

20 of general education for students of a]] abilities within the school district. Sections 46113 and

21 46141 of the California Education Code mandate that the minimum school day for

22 comprehensive middle and high schools shall be 240 minutes in length. The California

23 Legislature, however, has authorized several alternatives to a comprehensive school program, 24 including "continuation schools," "county community schools" and programs of "independent 25 study." Students may not be involuntarily assigned to such non-comprehensive school programs

26 for disciplinary reasons unless those students receive the requisite due process of law.

27 28
II

CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
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1

1. Continuation Schools

2

31. Continuation education is a high school diploma program designed to meet the

3 needs of students 16 through 18 years old who have not graduated from high school, are not

4 exempt from compulsory school attendance, and have been deemed at risk of not completing

5 high school. Students enrolled in continuation education programs are often credit deficient.

6 Others need a flexible education environment because they are employed or having adjustment

7 problems. Continuation schools do not offer the same comprehensive curriculum and

8 educational opportunities as comprehensive schools, and no student may be involuntarily

9 assigned to such a school without due process of law. See http://www.cde.ca.gov/sp/eo/ce.

10

2. County Community Schools

11

32. Community Schools are operated by county offices of education to serve students

12 in four categories: (1) students who are expelled from a school district; (2) students referred by a

13 school district, as a result of the recommendation by a school attendance review board (SARB)

14 or students whose school districts of attendance, have at the request of the pupil's parent or

15 guardian approved the pupil's enrollment in a county community school; (3) students referred by

16 Probation pursuant to sections 300, 601, 602, and 654 of the Welfare and Institutions Code or

17 students on probation or parole and not in attendance at any school; and (4) homeless children.

18 Cal. Educ. Code § 1981. Thus, excluding homeless children, a student may not be placed at a

19 county community school without the consent of either his or her parent or probation officer,

20 unless he or she has received due process under the law via an expUlsion hearing or an

21 appearance before a school attendance review board. Although students may graduate from

22 County Community Schools, the programs are designed to transition students to appropriate

23 educational, training or employment opportunities following the term of expulsion or

24 termination of court jurisdiction. County community schools do not offer the same

25 comprehensive curriculum and educational opportunities as comprehensive schools, and no

26 student may be involuntarily assigned to such a school without due process of law.

27
28
CIVlL RlGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTlVE RELIEF AND DAI'I1AGES (CLASS ACTION): DEMAND FOR JURY TRIAL
11

1

3. Independent Study

2

33. "Independent Study is an optional educational alternative, available to students

3 from kindergarten through high school, that is meant to respond to the student's specific

4 educational needs, interests, aptitudes, and abilities within the confines of school board

5 policy." Cal. Dep't of Educ., Independent Study Operations Manual at 1-1 (2002 ed.). The

6 California Education Code provides that independent study "shall not be provided as an

7 alternative curriculum" (Cal. Educ. Code § 51745(a)(2)), and that "independent study is an

8 optional educational alternative in which no pupil may be required to participate" (Cal. Educ.

9 Code § 51747(c)(7)). Furthermore, state law makes clear that independent study is not to be

10 imposed as an educational program for expelled students. Rather, a student who is referred to or

11 assigned to any school, class or program as the result of an expUlsion order may be instructed

12 through independent study only if the pupil is offered the alternative of classroom instruction.

13 Cal. Educ. Code § 51747(c)(7). Finally, in order to ensure that participation in a program of

14 independent study is a voluntary and viable method of instruction, districts must execute a

15 written contract detailing the individual terms of the pupil's program of study among the student,

16 the student's parent or guardian (unless the pupil is 18 or older), the certificated employee

17 supervising the independent study and all persons providing direct assistance to the pupil. Cal.

18 Educ. Code § 51747(c)(8).

19

VI. FACTS

20

Allegations Common to All Plaintiffs

21

34. Plaintiffs are African-American or Latino students in the Berkeley Unified

22 School District.

23

35. Each Plaintiff was allegedly involved in an incident in which the Plaintiff was

24 alleged to have violated the District's student conduct rules.

25

36. As a result of being involved in the alleged disciplinary incident, each Plaintiff

26 was excluded indefinitely from the District's comprehensive educational programs and was

27 either provided no educational services or provided substandard educational services through a

28
CIVIL RIGHTS COl\1PLAINT FOR DECLARATORY RELlEF. INJUNCTIVE RELlEF AND DAMAGES (CLASS ACTiON): DEMAND FOR JURY TRIAL
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1 county community school, continuation school or independent study.

2

37. At no time did any of the Plaintiffs receive a notice of any expulsion

3 proceedings, nor did they ever receive any notice of the reasons for which each was being

4 indefinitely excluded from comprehensive school. At no time were any of the Plaintiffs

5 provided with any hearing, any opportunity to present evidence, or any opportunity to contest

6 the reasons for which each was being excluded from comprehensive school.

7

Al1egations of Yarman Smith

S

3S. Plaintiff Yarman Smith was a ninth-grade student at Berkeley High School

9 ("BHS") in the District during the 2003-2004 school year. Yarman is African-American.

10

39. On January 12, 2004, Yarman was involved in a disciplinary incident with a

11 BHS teacher. In response to this incident, a representative from BHS suspended Yarman. A

12 suspension notice was issued to Yarman on February 5, 2004.

13

40. Beginning on January 14,2004, Mrs. Lagurtha Smith, Yarman's mother, made

14 several attempts to contact the District.

15

41. At no time did the District or any of its employees invite Mrs. Smith or Yarman

16 to a meeting with the Principal or a representative of the Principal to extend Yarman' s

17 suspension pending any expulsion proceedings. At no time did Mrs. Smith or Yarman receive

IS a notice of any expulsion proceedings, nor did they ever receive any notice of the reasons for

19 which Yarman was being indefinitely excluded from comprehensive school. At no time was

20 Yarman provided with any hearing, any opportunity to present evidence, or a chance to tell his

21 side of the story prior to being indefinitely excluded from comprehensive school.

22

42. On January 21, 2004, Mrs. Smith met with Mr. Gerald Herrick of the District.

23 During this meeting, Mrs. Smith inquired when Yarman could return to school. Mr. Herrick

24 informed Mrs. Smith he would meet \\lith BHS Dean, Denise Brown, on January 22,2004 and

25 notify her as to when Yarman could return to BHS. Mr. Herrick never mentioned that BUSD

26 was planning to pursue an "extended suspension."

27

43. On or around January 28, 2004, Mrs. Smith attempted to contact BHS to

28
CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRlAL
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1 get Yarman's work from his teachers. Mrs. Werd, a BHS counselor, informed Mrs. Smith that she

2 could not issue homework to Yarman because she had been notified that Yarman was not returning

3 to BHS due to "an alleged assault in his file." Mrs. Smith never received notification regarding

4 this alleged assault. No documentation was provided by BHS regarding this alleged assault.

5

44. On February 3, 2004, Mrs. Smith spoke to Mr. Herrick by telephone regarding the

6 date on which Yarman could return to school. Mr. Herrick told Mrs. Smith to contact him on

7 February 4, 2004 if she did not hear from him before that date.

8

45. On February 4,2004, Mrs. Smith left a message with Mr. Herrick, again attempting

9 to find out when Yarman could return to BHS. Mrs. Smith did not receive a reply.

10

46. On February 5, 2004, the District issued Yarman a Notice of Suspension,

11 suspending him for five days as a result of the alleged incident on January 12, 2004. The notice

12 said that the suspension was to start on January 13. The return date was specified as "pending

13 expulsion."

14

47. On February 12, 2004, Mrs. Smith again contacted Mr. Herrick regarding a return

15 date for Yarman. Mr. Herrick again failed to contact Mrs. Smith to let her know when Yarman

16 could return to school.

17

48. On February 23, 2004, Mrs. Smith contacted Legal Services for Children. At this

18 point, Yarman had been excluded from BHS for approximately one-and-a-half months, and the

19 District had not provided a return date for Yarman.

20

49. On or about March 3, 2004, Yarman was presented with a "Student Behavior

21 Success Contract Rehabilitation Plan" ("Behavior Contract") to sign in order to re-enroll at

22 BHS. Yarman, upon the advice of legal counsel, did not sign the Behavior Contract.

23

50. On March 3, 2004, Mrs. Smith met with Denise Brown, BHS Dean, and another

24 administrator to discuss Yarman's return to BHS.

25

51. Yarman returned to BHS classes on March 5, 2004.

26

52. After Mrs. Smith sought Jegal assistance to get Yarman re-enrolled in BHS and

T_I after Mrs. Smith's Jegal representatives met with the District Superintendent, Michele

28
CIV1L R1GHTS COMPLAINT FOR DECLARATORY RELIEF. lNJUNCTlVE RELIEF AND DAMAGES (CLASS ACTlON): DEMAND FOR JURY TRIAL
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1 Lawrence, the District offered to enroll Yarman in summer school at BHS. The District has

2 not provided any form of compensatory damages or educational services to Yarman.

3

53. As a result of being excluded from school, Yarman has fallen very far behind

4 academically. Yarman wants the 0ppol1unity to make up the units he missed during his

5 exclusion from BHS and graduate from high school on time.

6

Allegations of Juan Munoz

7

54. Plaintiff Juan Munoz was a ninth-grade student at Berkley High School in the

-
8 District during the 2002-2003 school year. Juan is Latino.

9

55. On or about September 9,2002, Juan was allegedly involved in a disciplinary

10 incident at school. In response to that incident, a representative of Berkeley High School

11 suspended Juan for five days.

12

56. Although he was only suspended for five days, a representative of Berkeley

13 High School told Juan he could not return to school for three weeks.

14

57. After three weeks, Juan returned to school for a few days. A few days after his

15 return, a representative of Berkeley High School took him out of class and told him to go

16 home.

17

58. As a result of this incident, Juan's father, Juan Munoz, Sr., attended a meeting

18 with Juan and Mr. Gerald Herrick. Mr. Herrick told Juan and his father that he could not

19 return to Berkeley High School because he wore red clothing to school.

20

59. At no time did the District or any of its employees invite Mr. Munoz or Juan to

21 a meeting with the Principal or a representative of the Principal to extend Juan's suspension

22 pending any expUlsion proceedings. At no time did Mr. Munoz or Juan receive a notice of any

23 expUlsion proceedings, nor did they ever receive any notice of the reasons for which Juan was

24 being indefinitely excluded from comprehensive school. At no time was Juan provided with

25 any hearing, any opportunity to present evidence, or a chance to tell his side of the story prior

26 to being indefinitely excluded from comprehensive school.

27

60. Juan and his father telephoned Mr. Henick during the next few weeks to try to

28
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CIVIL RIGHTS COMPLAlNT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
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1 get another school placement.

2

61. In November 2002, Mr. HelTick told Juan he would place him at Berkeley

3 Alternative School. However, Juan was never actually given an educational placement

4 anywhere in the District.

5

62. Juan did not have any school placement for the remainder of the 2002-2003

6 school year.

7

63. In September 2003, Juan enrolled at Berkeley High School and obtained a class

8 schedule. However, Mr. Herrick called BHS and told them to disenro]] Juan.

9

64. Since Juan was not allowed to enroll at BHS, he requested that Mr. HelTick

10 offer him another placement, either at Academy Quest or Berkeley Alternative School. Mr.

11 Henick rejected both requests because these campuses are near BHS, and Mr. HelTick did not

12 want Juan near the BHS campus.

13

65. At this time, Mr. Herrick told Juan he would have to enroll at a non-

14 comprehensive school, county community school called Rock LaFleche. Although Juan did

15 not want to attend Rock LaFleche, he agreed to accept the placement in order to attend school.

16 However, Juan was never placed at Rock LaFleche or in any other educational program. He

17 was excluded from BUSD from the Fall of 2002 to the Summer of 2004.

18

66. The District has not provided Juan with any form of compensatory damages or

19 educational services.

20

67. As a result of being excluded from comprehensive school, Juan has fallen very

21 far behind academicall y and has been overwhelmed by feelings of hopelessness and rejection.

22

Allegations of Summer McNeil

23

68. Plaintiff Summer McNeil was an eleventh-grade student at Berkeley High

24 School (BHS) in the District during the 2003-04 school year. Summer is African-American.

25

69. On November 7,2003, Summer was allegedly involved in a disciplinary

26 incident in cJass. In response to that incident, a representative of BHS suspended Summer for

27 five days.

28
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70. At the end of the five-day suspension period Summer returned to school. At

2 BHS she was told by a BHS representative that she could not attend class. She was told to go

3 home and wait for a phone call.

4

71. At no time did the District or any of its employees invite Summer or her mother,

5 Ms. Sonobia Augustine, to a meeting with the Principal or a representative of the Principal to

6 extend Summer's suspension pending any expulsion proceedings. At no time did Ms.

7 Augustine or Summer receive a notice of any expulsion proceedings, nor did they ever receive

8 any notice of the reasons for which Summer was being indefinitely excluded from

9 comprehensive school. At no time was Summer provided with any hearing, any opportunity to

10 present evidence, or a chance to tell her side of the story prior to being indefinitely excluded

11 from comprehensive school.

12

72. In December 2003, Ms. Augustine received a phone call from Mr. Gerald

13 Herrick, the District's Director of Student Services, telling her that Summer could attend

14 Berkeley Alternative School two hours per week. However, Summer was not given a date on

15 which she could begin attending Berkeley Alternative. Summer remained at home.

16

73. During Mr. Herrick's phone call, Ms. Augustine was also told that Summer

17 must attend an Aggressive Offender's Program. Ms. Augustine paid $30 for the session.

18 Summer attended the one-day program and received a certificate of completion on March 27,

19 2004.

20

74. In late January 2004, Ms. Augustine began calling the superintendent's offices

21 demanding information about the status of Summer's attendance at BHS and that Summer be

22 enrolled in school immediately.

23

75. In May 2004, a teacher began providing Summer with a form of independent

24 study called "Home Hospital Instruction." Home Hospital Instruction is provided for students

25 suffering from a "temporary disability." Cal. Educ. Code § 48206.3. Summer was neither ill

26 nor incapacitated, and thus there was no medical need for Home Hospital Instruction. The

27 teacher conducted an interview before beginning instruction, but did not provide any contract

28
CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTlVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
17

1 or paperwork to indicate the amount and length of home instruction to be provided. The

2 teacher taught Summer at home three days a week for two hours of instruction per day.

3 Summer was given and completed two to three hours of homework per day.

4

76. The home instructor told Ms. Augustine that Summer would receive some

5 credits for the period of missed instruction. Summer did not receive any compensatory credits

6 for missed instruction.

7

77. After Ms. Augustine sought legal assistance to get Summer enrolled in a

8 comprehensive school and after Ms. Augustine's legal representatives met with the District

9 Superintendent, Michele Lawrence, the District offered to enroll Summer in summer school at

10 Berkeley High. The District has not provided any form of compensatory damages or

11 educational services to Summer.

12

78. As a result of being excluded from comprehensive school, Summer has fallen

13 very far behind academically and has become anxious about graduating on time in Spring

14 2005. Summer would like to graduate with the rest of her class at BHS but is afraid that she

15 will not have enough credits as a result of the time she has been away from school.

16

VII. CLASS ACTION ALLEGATIONS

17

79. Plaintiffs bring this action as a class action under Federal Rules of Civil

18 Procedure 23(b)( 1) and (2) on behalf of themselves and all other persons similarly situated.

19

80. The class which Plaintiffs represent is composed of all African-American and

20 Latino students who have been or in the future will be students in the Berkeley Unified School

21 District and who have been or in the future will be involuntarily excluded from school or

22 involuntarily reassigned from comprehensive school programs to county community schools,

23 continuation schools and independent study programs for alleged violations of the District's 24 student conduct rules without having received due process of law. Specifically, each Class 25 Member was allegedly involved in an incident in which the Class Member was alleged to have 26 violated the District's student conduct rules. As a result of being involved in the alleged 27 disciplinary incident, each Class Member was excluded indefinitely from the District's

28
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CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
18

1 comprehensive educational programs and was either provided no educational services or

2 provided substandard educational services through a county community school, continuation

3 school or independent study. At no time did any of the Class Members receive a notice 'Of any

4 expulsion proceedings nor did they ever receive any notice of the reasons for which each was

5 being indefinitely excluded from comprehensive school. At no time were any of the Class

6 Members provided with any hearing, any opportunity to present evidence, or any opportunity

7 to contest the reasons for which each was being excluded from comprehensive school.

8

81. Plaintiffs are informed and believe that this Class is so numerous that joinder of

9 all members is impracticable, and that the disposition of their claims in a class actiDn will

10 benefit the parties and the Court. Data provided by the District suggest that, during the 2002-

11 2003 academic year, some 55 students who were recommended for expUlsion were not

12 formally expelled after an expulsion hearing and were likely excluded from comprehensive

13 school without a hearing. Plaintiffs are informed and believe that a similar number of students

14 were unlawfully excluded during the 2003-04 academic year.

15

82. There are questions of law and fact common to the entire Class. Such questions

16 include, inter alia: (1) whether the District's policy and practice of excluding students from

17 school or reassigning students from comprehensive school programs to county community

18 schools, continuation schools and independent study programs for alleged violations of the

19 District's student conduct rules without sufficient notice and a hearing infringes upon the

20 students' due process rights under the United States and California Constitutions; (2) whether

21 the District's policy and practice of excluding students from school or reassigning students

22 from comprehensive school programs to county community SChDOls, continuation schools and

23 independent study programs for a]]eged violations of the District's student conduct rules

24 without sufficient notice and a hearing had the purpose and effect of discriminating against the

25 students on the basis of their race, national origin or color under the United States and

26 California Constitutions and California antidiscrimination statutes; (3) whether the District's

27 policy and practice of excluding students from school or reassigning students from

28
CIVIL RIGHTS COMPLAlNT FOR DECLARATORY RELlEF, INJUNCTIVE RELlEF AND DAMAGES (CLASS ACTION); DEMAND FOR JURY TRIAL
19

1 comprehensive school programs to county community schools, continuation schools and

2 independent study programs for alleged violations of the District's student conduct rules

3 without sufficient notice and a hearing infringes upon the students' fundamental right to an

4 education under the California Constitution; and (4) whether the District's policy and practice

5 of excluding students from school or reassigning students from comprehensive school

6 programs to county community schools, continuation schools and independent study programs

7 for alleged violations of the District's student conduct rules without sufficient notice and a

8 hearing infringes upon the students' rights under the California Code of Education.

9

83. The claims or defenses of the Class representatives are typical of the claims of

10 the Class as a whole. The claims of the Class representatives arise from the same policies and

11 practices engaged in by Defendants that give rise to the claims of all members of the Class.

12 The claims of the Class representatives are based on the same legal theories as the claims of all

13 members of the Class.

14

84. Plaintiffs will fairly and adequately protect the interests of the Class. Plaintiffs

15 are represented by Pillsbury Winthrop, LLP, Legal Services for Children and the Youth and

16 Education Law Clinic. These are organizations with substantial resources and are experienced

17 in constitutional and education law and complex and class action litigation. Plaintiffs' counsel

18 will adequately represent the interests of the Class.

19

85. Defendants, and each one of them, have acted and refused to act on grounds

20 applicable to the entire Class, thereby making it appropriate that final injunctive relief or

21 corresponding declarative relief be with respect to the Class as a whole.

22

VIII. REQUISITES FOR RELIEF

23

86. As a direct and proximate result of the conduct of Defendants described above,

24 Plaintiffs have been denied their constitutional and statutory rights as stated below and have

25 been damaged in an amount which is not yet known. Plaintiffs will seek leave of Court to

26 amend this Complaint to conform to proof at the time of tria1. Plaintiffs have suffered and

27 continue to suffer mental and emotional distress, humiliation, embarrassment, discomfort and

28
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CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELlEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
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1 anxiety.

2

87. Defendants' policies, practices and conduct and acts alleged here have resulted

3 and will continue to result in irreparable injury to Plaintiffs, including, but not limited to,

4 further violations of their statutory and constitutional rights. Plaintiffs have no plain, adequate

5 or complete remedy at law to address the wrongs described here. Plaintiffs therefore seek

6 injunctive relief restraining Defendants from continuing to engage in and enforce the

7 unconstitutional and illegal policies, practices, conduct and acts described here.

8

88. Defendants acted in violation of Plaintiffs' legal and constitutional rights and

9 have directly and proximately caused Plaintiffs' mental and emotional pain, humiliation and

10 suffering. As a direct, legal and proximate result of Defendants' violations of Plaintiffs'

11 statutory and constitutional rights, Plaintiffs have been damaged in an amount which is not yet

12 known. Plaintiffs will seek leave of Court to amend this complaint to conform to proof at time

13 oftrial.

14

89. Defendants in various personal and official capacities acting under color of law,

15 instituted, authorized, tolerated, ratified, permitted and acquiesced in policies, practices and

16 customs of unlawfully excluding Plaintiffs from school or unlawfully reassigning students

17 from comprehensive educational programs to substandard, noncomprehensive educational

18 programs without due process oflaw.

19

IX. CAUSES OF ACTION

20

FIRST CAUSE OF ACTION Infringement of Procedural Due Process Rights

21

Violation of the 14th Amendment to the United States Constitution, 42 U.S.c. § 1983, and

Article 1, Section 7 of the California Constitution

22

23

90. Plaintiffs reallege and incorporate by reference paragraphs 1 through 89 above.

24

91. By their policies and practices of excluding Plaintiffs and those similarly situated

25 to Plaintiffs from comprehensive school programs without providing sufficient notice and a

26 hearing, Defendants, acting under color of law, have violated and continue to violate Plaintiffs'

27 rights to proceduraJ due process under the FOl.JJ1eenth Amendment to the United States

28
CIVIL RIGHTS COf\1PLA1NT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
2

1 Constitution (giving rise to Plaintiffs' claims under 42 U.S.c. § 1983) and under Article 1, § 7 of

2 the California Constitution.

3

92. As a direct and proximate result of Defendants' violations of students' procedural

4 due process rights, Plaintiffs and those similarly situated to Plaintiffs have been damaged in an

5 amount subject to proof at trial and will continue to be injured by Defendants' unlawful policies

6 and practices. Unless Defendants are enjoined, Plaintiffs and those similarly situated to Plaintiffs

7 will be irreparably harmed.

8

SECOND CAUSE OF ACTION

Infringement ofSubstantive Due Process Rights

9

Violation of the 14th Amend111£nt to the United States Constitution, 42 U.S.c. § 1983

10

93. Plaintiffs reallege and incorporate by reference paragraphs 1 through 92 above.

11

94. By their policies and practices of, inter alia, (1) completely excluding Plaintiffs

12 and those similarly situated to Plaintiffs from school for alleged infractions of the District's

13 student conduct rules, irrespective of the nature of the alleged behavior; (2) reassigning Plaintiffs

14 and those similarly situated to Plaintiffs to county community schools and continuation schools

15 that do not offer the same comprehensive curriculum and educational opportunities as

16 comprehensive schools for alleged infractions of the District's student conduct rules, irrespective

17 of the a]]eged behavior; and (3) reassigning Plaintiffs and those similarly situated to Plaintiffs to

18 isolated, understaffed independent study programs that do not offer the same comprehensive

19 curriculum and educational opportunities as comprehensive schools for alleged infractions of the

20 District's student conduct rules, irrespective of the alleged behavior, when there exist other

21 reasonable and lawful means to deter such alleged infractions which would be less restrictive of

22 Plaintiffs' public rights and personal libel1ies, Defendants have violated and continue to violate

23 Plaintiffs' rights to substantive due process under the Fourteenth Amendment to the United

24 States Constitution (giving rise to Plaintiffs' claims under 42 U.S.c. § 1983).

25

95. As a direct and proximate result of Defendants' violations of students'

26 substantive due process rights, Plaintiffs and those similarly situated to Plaintiffs have been

27 damaged in an amount subject to proof at trial and will continue to be injured by Defendants'

28
CIV1L R1GHTS COMPLAINT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF A"iD D.M1AGES (CLASS ACTION): DEMAND FOR JURY TRIAL
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1 unlawful policies and practices. Unless Defendants are enjoined, Plaintiffs and those similarly

2 situated to Plaintiffs will be irreparably harmed.

3

THIRD CAUSE OF ACTION

Discrimination on Account ofRace, Ancestry and National Origin

4

Violation of the 14th Amendment to the United States Constitution and 42 U.S. C. § 1983

5

96. Plaintiffs reallege and incorporate by reference paragraphs 1 through 95 above.

6

97. Plaintiffs are informed and believe and therefore allege that Defendants'

7 conduct, in excluding Plaintiffs from comprehensive educational programs as described in this

8 complaint, was undertaken because of their race, ancestry or national origin.

9

98. Defendants have violated Plaintiffs' right to be free from discrimination on

10 account of race, ancestry and national origin as guaranteed by the Fourteenth Amendment to

11 the United States Constitution (giving rise to Plaintiffs' claims under 42 U.S.c. § 1983).

12

FOURTH CAUSE OF ACTION

Discrimination on Account ofRace, Ancestry and National Origin

13

Violation ofArticle 1, Section 7 of the California Constitution

14

15

99. Plaintiffs reallege and incorporate by reference paragraphs 1 through 98 above.

16

100. Plaintiffs are informed and believe and therefore a])ege that Defendants'

17 conduct, in excluding Plaintiffs from comprehensive educational programs as described in this

18 complaint, was undertaken because of their race, ancestry or national origin.

19

101. Defendants have violated Plaintiffs' right to be free from discrimination on

20 account of race, ancestry and national origin as guaranteed by Article 1, Section 7(a) of the

21 California Constitution.

22

FIFTH CAUSE OF ACTION

Violation of California Government Code §§ 11135 et seq.

23

24

102. Plaintiffs reallege and incorporate by reference paragraphs 1 through 101 above.

25

103. Defendants, at all relevant times, have been recipients of financial assistance

26 from the State of California.

27

104. Plaintiffs are informed and believe and therefore allege that Defendants'

28
CIVIL RIGHTS COMPLAINT FOR DECLA.RATORY RELIEF. lNJUNCTIVE RELIEF AND DAMAGES (CLASS ACT10N): DEMAND FOR JURY TRIAL

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1 conduct, in excluding Plaintiffs from comprehensive educational programs as described in this

2 complaint, was undertaken because of their ethnic group identification or color and had the

3 effect of discriminating against Plaintiffs because of their ethnic group identification or color.

4

105. Defendants' conduct, as alleged above, violates Plaintiffs' right to be free from

5 discrimination on account of ethnic group identification or color.

6

SIXTH CAUSE OF ACTION

Infringement ofRights under Article IX, Sections 1 and 5 of the California Constitution

7

8

106. Plaintiffs reallege and incorporate by reference paragraphs 1 through 105 above.

9

107. By their policies and practices of, inter alia, (1) completely excluding Plaintiffs

10 and those similarly situated to Plaintiffs from school for alleged infractions of the District's

11 student conduct rules, without requisite notice and a hearing, and ilTespective of the nature of the

12 alleged behavior; (2) reassigning Plaintiffs and those similarly situated to Plaintiffs to county

13 community schools and continuatjon schools that do not offer the same comprehensive

14 curriculum and educational opportunities as comprehensive schools for alleged infractions of

15 the District's student conduct rules, without requisite notice and a hearing, and ilTespective of the

16 alleged behavior; and (3) reassigning Plaintiffs and those similarly situated to Plaintiffs to

17 isolated, understaffed, independent study programs that do not offer the same comprehensive 18 curriculum and educational opportunities as comprehensive schools for alleged infractions of the

19 District's student conduct rules, without requisite notice and a hearing, and ilTespective of the

20 alleged behavior, Defendants have denied Plaintiffs and those similarly situated to Plaintiffs their

21 fundamental right to an education under Article IX, sections 1 and 5 of the California

22 Constitution.

23

108. As a direct and proximate result of Defendants' violations of students' rights

24 under Article IX, sections 1 and 5 of the California Constitution, Plaintiffs and those similarly

25 situated to Plaintiffs have been damaged in an amount subject to proof at trial and will continue

26 to be injured by Defendants' unlawful poJjcies and practices. Unless Defendants are enjoined,

27 Plaintiffs and those similarly situated to Plaintiffs wi11 be irreparably harmed.

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CIVIL RIGHTS COMPLAlNT FOR DECLARATORY RELIEF. lNJUNCT1VE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
24

1

SEVENTH CAUSE OF ACTION

Infringement ofRights under California Education Code Sections 48900 et seq.

2

3

109. Plaintiffs reallege and incorporate by reference paragraphs 1 through 108 above.

4

110. By their policies and practices of, inter alia, (1) completely excluding Plaintiffs

5 and those similarly situated to Plaintiffs from school for alleged infractions of the District's

6 student conduct rules, without requisite notice and a hearing, and irrespective of the nature of the

7 alleged behavior; (2) reassigning Plaintiffs and those similarly situated to Plaintiffs to county

8 community schools and continuation schools that do not offer the same comprehensive

9 curriculum and educational opportunities as comprehensive schools for alleged infractions of

10 the District's student conduct rules, without requisite notice and a hearing, and irrespective of the

11 alleged behavior; and (3) reassigning Plaintiffs and those similarly situated to Plaintiffs to

12 isolated, understaffed, independent study programs that do not offer the same comprehensive

13 curriculum and educational opportunities as comprehensive schools for alleged infractions of the

14 District's student conduct rules, without requisite notice and a hearing, and irrespective of the

15 alleged behavior, Defendants have defacto expelled Plaintiffs and those similarly situated to

16 Plaintiffs without complying with the statutory procedures mandated by section 48900, et seq. of

17 the California Code of Education and thereby violated Plaintiffs' rights under those statutory

18 provisions.

19

111. As a direct and proximate result of Defendants' violations of students' rights

20 under section 48900, et seq. of the California Education Code, Plaintiffs and those similarly

21 situated to Plaintiffs have been damaged in an amount subject to proof at trial and will continue

22 to be injured by Defendants' unlawful policies and practices. Unless Defendants are enjoined,

23 Plaintiffs and those similarly situated to Plaintiffs will be irreparably harmed.

24

EIGHTH CAUSE OF ACTION Infringement of Rights under California Education Code Sections 46113 and 46141

25

26

112. Plaintiffs reallege and incorporate by reference paragraphs 1 through 111 above.

27

113. By their policies and practices of, inter alia, (1) completely excluding Plaintiffs

28
CJVIL RIGHTS COMPLA1NT FOR DECLARATORY RELIEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
25

jl

p
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and those similarly situated to Plaintiffs from school for alleged infractions of the District's student conduct rules, without requisite notice and a hearing, and in-espective of the nature of the alleged behavior; (2) reassigning Plaintiffs and those similarly situated to Plaintiffs to county community schools and continuation schools that do not offer the same comprehensive curriculum and educational opportunities as comprehensive schools for alleged infractions of the District's student conduct rules, without requisite notice and a hearing, and in-espective of the alleged behavior; and (3) reassigning Plaintiffs and those similarly situated to Plaintiffs to isolated, understaffed, independent study programs that do not offer the same comprehensive curriculum and educational opportunities as comprehensive schools for alleged infractions of the District's student conduct rules, without requisite notice and a hearing, and irrespective of the alleged behavior, Defendants have reduced Plaintiffs' instructional time to a level of fewer than 240 minutes per day in violation of Plaintiffs' rights under sections 46113 and 46141 of the California Education Code.
1] 4. As a direct and proximate result of Defendants' violations of students' rights under sections 46113 and 46]4], Plaintiffs and those similarly situated to Plaintiffs have been damaged in an amount subject to proof at trial and will continue to be injured by Defendants' unlawful policies and practices. Unless Defendants are enjoined, Plaintiffs and those similarly situated to Plaintiffs will be irreparably harmed.
NINTH CAUSE OF ACTION Declaratory Relief
] 15. Plaintiffs reallege and incorporate by reference paragraphs 1 through 114 above. 1]6. An actual, present and justiciable controversy has arisen and now exists relating to Defendants' duties and responsibilities under the United States and California Constitutions and provisions of the California Education Code, specifically those statutes and laws governing the school discipline process. Plaintiffs contend that Defendants' policies and practices as described herein violate these statutes and laws, while Defendants, on information and belief, contend that their policies and practices comply with these statutes and laws.
CIVIL RIGHTS COMPLAlNT FOR DECLARATORY RELlEF. INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
26

II

•
1

117. A judicial determination concerning Defendants' duties and responsibilities is

2 necessary and desirable, specifically a declaration as to Defendants' duties and responsibilities

3 under the statutes and laws described above. Plaintiffs fear that they will again be subjected to

4 Defendants' unlawful and unconstitutional actions and seek a declaration ensuring that

5 Plaintiffs and those similarly situated to Plaintiffs will receive the full benefits of their rights

6 under law and the educational programs to which they are entitled.

7

x. REQUESTED RELIEF

8

HEREFORE, Plaintiffs respectfully pray that this Court:

9

1. Declare that this action may proceed as a class action;

10

2. Declare that Defendants' exclusion of Plaintiffs and those similarly situated to

11 Plaintiffs from school or wrongfully and arbitrarily reassigning Plaintiffs and those similarly

12 situated to Plaintiffs from comprehensive school programs to county community schools,

13 continuation schools and independent study programs for alleged violations of the District's

14 student conduct rules violates Plaintiffs' rights under the United States Constitution, the

15 California Constitution and the laws of the State of California;

16

3. Preliminarily and permanently enjoin Defendants from authorizing or

17 participating in any practice that excludes Plaintiffs and those similarly situated to Plaintiffs

18 from school or reassigns Plaintiffs and those similarly situated to Plaintiffs from

19 comprehensive school programs to county community schools, continuation schools and

20 independent study programs or reassigns Plaintiffs and those similarly situated to Plaintiffs

21 from comprehensive school programs to any noncomprehensive school programs for alleged

22 violations of the District's student conduct rules, unless Defendants provide proper notice and

23 a hearing pursuant to sections 48900, et seq. of the California Education Code.

24

4. Order Defendants to provide the following remedial measures for all Plaintiffs

25 and those similarly situated to Plaintiffs:

26

a. Search for and identify all students who have been excluded from school

27

or reassigned from comprehensive educational programs to county community schools,

28
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<l

1

continuation schools, independent study programs or any other noncomprehensive

2

programs for alleged violations of the District's student conduct rules without having

3

received appropriate notice and a hearing under the United States and California

4

Constitutions and the California Education Code.

5

b. Expunge and/or modify student records to reflect that the exclusion of

6

Plaintiffs and those similarly situated to Plaintiffs from comprehensive school programs

7

and the reassignment of Plaintiffs and those similarly situated to Plaintiffs from

8

comprehensive school programs to county community schools, continuation schools

9

and independent study programs was unlawful and to remove any reference to any

10

student conduct or incident related to the exclusion or reassignment of Plaintiffs and

11

those similarly situated to Plaintiffs;

12

c. Provide an educational assessment conducted by a qualified assessor of

13

the Plaintiffs' choice to determine the extent to which remedial education services

14

should be provided to Plaintiffs for the denial of comprehensive educational programs;

15

d. Provide such remedial educational services as recommended by the

16

qualified assessor and ensure that such services are provided by a fully cel1ified and

17

qualified service provider;

18

5. Monitor the District's implementation of the injunctive and remedial measures

19 ordered by this Court in a manner deemed appropriate by the Court;

20

6. Award compensatory and general damages, in an amount to be proven at trial,

21 against the Defendants to Plaintiffs and those similarly situated to Plaintiffs;

22

7. Award Plaintiffs their costs, expenses and reasonable attorneys' fees pursuant to

23 42 U.S.c. § 1988 and California Code of Civil Procedure section 1021.5; and

24 /-/-/

25 /-/-/ 26 /-/-/

27 /-/-/

28
CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELlEF. INJUNCTIVE RELlEF AND DAMAGES (CLASS ACTION): DEMAND FOR JURY TRIAL
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. ..

•

•

1

8. Grant such other and further relief as this Court deems just and proper.

2 Dated: August 13,2004

Respectfully submitted,

3 YOUTH & EDUCATION LAW CLINIC
4

5

6

7

Attomeys for Plaintiffs

8

LEGAL SERVICES FOR CHILDREN

9

10

11

12

13

Attorneys for Plaintiffs

14

PILLSBURY WINTHROP LLP

15 16

By~-C1k

17

William F. Abrams

Attomeys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

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CIVIL RIGHTS COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF AND DAMAGES (CLASS ACTION); DEMAND FOR JURY TRIAL
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• •

1

JURY DEMAND

2

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs hereby

3 demand a trial by jury of all issues so triable.

4 Dated: August 13, 2004

5

YOUTH & EDUCATION LAW CLINIC

6

7

By~-Sg/ ,

8

miaITIs. Kosfi

Attorneys for Plaintiffs

9

LEGAL SERVICES FOR CHILDREN 10

11

12

13

. Dunn

Gabriela Ruiz

14

Attorneys for Plaintiffs

15

PILLSBURY WINTHROP LLP

16

17

ByLJ~ I tk

18

William F. Abrams

19

Attorneys for Plaintiffs

20

21

22

23

24

25

26

27

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C1V1L R1GHTS COMPLA1NT FOR DECLARATORY RELJEF, lNJUNCT1VE RELJEF AND DAMAGES (CLASS ACT10N); DEMAND FOR JURY TR1AL
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 Consent Decree In The Matter of
Yarman Smith, et al. v. Berkeley Unified School District, et al. Case No. C-04-3306 WDB (N.D. Cal.):
a class action pending in the United States District Court for the Northern District of California

TABLE OF CONTENTS I. INTRODUCTION ...................................................................................................1 II. THE PARTIES AND CERTIFICATION OF CLASS FOR SETTLEMENT ........2
A. The Named Plaintiffs and Plaintiff Class.....................................................2 B. Certification of Class ...................................................................................3 C. The Defendants ............................................................................................3 III. SETTLEMENT PROVISIONS ...............................................................................4 A. Identification of and Outreach to Class Members .......................................4 B. Meeting to Determine Whether Students Were Unlawfully Excluded
from School..................................................................................................6 C. Offer to Immediately Reinstate Unlawfully Excluded Students to
Comprehensive Schools...............................................................................7 D. Development of Plan for Students to Earn Credits and Receive
Compensatory Educational Services............................................................7 E. Expungement and Modification of Educational Records of Unlawfully
Excluded Students........................................................................................9 F. Establishment of Policies, Procedures, and Training Programs to
Prevent Unlawful Exclusion of Students from Comprehensive School ......9 G. Compliance With Due Process Requirements ...........................................10 H. Plan to Address Racial/Ethnic Disproportionality in School Discipline ...11 I. Appeals from District Determinations and Dispute Resolution ................12 IV. CONSENT DECREE REPORTING AND OVERSIGHT....................................13 A. Consent Decree and Order of the Court.....................................................13 B. The Students’ Rights Monitoring Committee............................................14 C. Reporting to the Monitoring Committee and the Court.............................14
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D. Responsibilities of the Monitoring Committee..........................................15 V. MISCELLANEOUS PROVISIONS......................................................................16
A. Relief Available to Plaintiffs and Class Members.....................................16 B. Agreement to Defend Consent Decree ......................................................16 C. Effective Date ............................................................................................17 D. Amending the Consent Decree ..................................................................17 E. Severability ................................................................................................17 F. Release of Personal Liability Claim ..........................................................17 VI. TERMINATION OF LITIGATION......................................................................17 VII. ATTORNEYS FEES .............................................................................................18
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I. INTRODUCTION The Plaintiffs, African American and Latino students who have attended comprehensive middle school or high school in the Berkeley Unified School District, brought this litigation on August 13, 2004. Plaintiffs allege and Defendants deny that the Berkeley Unified School District (the “District”), the Berkeley Board of Education, Superintendent, and Director of the Offices of Student Services had unlawfully, arbitrarily, and without procedural due process, excluded from comprehensive educational programs Plaintiffs and those similarly situated. Plaintiffs have alleged and Defendants have denied that the Defendants had a policy and practice of unlawfully infringing upon the constitutional and statutory rights of Plaintiffs and those similarly situated by wrongfully and arbitrarily excluding Plaintiffs from school or wrongfully and arbitrarily reassigning Plaintiffs from comprehensive school programs to county community schools, continuation schools, home-hospital instruction programs, and independent study programs for alleged violations of the District’s student conduct rules. Plaintiffs further alleged and Defendants deny that Defendants’ policies have had a disparate negative impact on and have arbitrarily and discriminatorily excluded African American and Latino students from comprehensive school programs and have assigned them to noncomprehensive alternative programs. Plaintiffs alleged and Defendants deny that Defendants’ policies and practices denied Plaintiffs their right to Equal Protection under the Fourteenth Amendment to the United States, Article 1, Section 7, of the California Constitution, and California Government Code Sections 11135-111139.5 and their implementing regulations at Title 22, Sections 98000 et seq. of the California Code of Regulations.
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This Consent Decree (or the “Decree”) is agreed to by and between the Defendants and Plaintiffs in Yarman Smith, et al. v. Berkeley Unified School District, et al., United States District Court Case No. C-04-3306 (WDB), a class action (the “Class Action” or “this Action”). Plaintiffs shall be referred to herein as either “Plaintiffs” or “Class Members.” The Parties herein shall be collectively referred to as the “Parties.”
Class Members in this Class Action are all African Americans and Latinos self-identified as such in official records who have been students in the Berkeley Unified School District and who have been involuntarily excluded from comprehensive school or involuntarily reassigned from comprehensive school programs to non-comprehensive alternative programs for alleged violations of the District’s student conduct rules without having received appropriate due process of law.
This Consent Decree is not and shall never be considered an admission of any fault, error, wrongdoing, liability or violation of any right by the District or by any agent officer, servant, or employee of the District or by Plaintiffs; nor an admission by the District that this matter is appropriate for class certification.
The Parties now wish to resolve this Class Action without further litigation and therefore agree on the following terms and conditions:
II. THE PARTIES AND CERTIFICATION OF CLASS FOR SETTLEMENT A. The Named Plaintiffs and the Plaintiff Class The named Plaintiffs in this Action are Yarman Smith, a minor, by Lugertha Smith, his guardian ad litem, Juan Muñoz, a minor, by Margarita Chavez, his guardian ad litem, Summer McNeil, a minor, by Sonobia Augustine, her guardian ad litem. The Plaintiff Class consists of
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the following: all African Americans and Latinos self-identified as such in official records who have been students in the Berkeley Unified School District and who have been involuntarily excluded from comprehensive school or involuntarily reassigned from comprehensive school programs to non-comprehensive alternative programs for alleged violations of the District’s student conduct rules without having received appropriate due process of law. B. Certification of Class
For purposes of achieving a settlement in this Action, the Parties agree and stipulate that the Plaintiff Class identified in Section II.A., above, shall be conditionally certified as a class and that this Action shall be conditionally certified as a class action pursuant to Federal Rule of Civil Procedure 23(b), upon approval of the Court. The Parties further request that the Court conditionally certify this class under Rule 23(b). C. The Defendants
The Defendants in this Action are the Board of Education of the Berkeley Unified School District (the “Board of Education”), which is the elected policy-making body of the approximately 9,000 K-12 student and 500 employee Berkeley Unified School District; Gerald Herrick, Director of the Office of Student Services of the District; Michele Lawrence, Superintendent of the District; Nancy Riddle, President of the Board of Education; Terry S. Doran, Vice President of the Board of Education; Joaquin J. Rivera, John T. Selawsky, Shirley Issel, Directors of the Board of Education. Defendants Herrick and Lawrence have been sued in their personal and official capacities. Defendants Selawsky, Riddle, Rivera, Doran, and Issel have been sued in their official capacities.
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III. SETTLEMENT PROVISIONS A. Identification of and Outreach to Potential Class Members The Parties have agreed upon an outreach plan (Attached as Exhibit A) to identify and provide outreach to potential Class Members. Within ten school days of the Court’s approval of the outreach plan, the plan shall be implemented by the District. The outreach plan shall include the following components: 1. By written and oral notice, the District shall inform the following groups of students of their rights under this Consent Decree: (1) students who have been recommended for expulsion, but did not receive an expulsion hearing during the 2002-03 and 2003-04 academic years; (2) students who have been placed at a continuation school, a community day school, an independent study program, or a home-hospital instruction program (collectively, “alternative program”) during the 2002-03 and 2003-04 academic years; or (3) students who have been excluded from school entirely for more than 5 consecutive school days or 20 cumulative school days during either the 2002-03 or 2003-04 academic years. Such notice shall acknowledge and describe the District’s obligation to provide a sufficient notice and hearing under California Education Code §§ 48900 et seq. prior to excluding any student from comprehensive school for disciplinary reasons; shall inform each student identified in this paragraph of the student’s right to a meeting pursuant to Section III.B. of this Decree; and shall inform the student of the student’s potential right to be reinstated in comprehensive school and/or receive compensatory educational services and the opportunity to earn educational credits pursuant to Section III.C. & D. The notice shall identify a specific District representative for students and their parents/guardians to contact to schedule the meeting.
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2. The District shall provide a written notice to all students enrolled in all District comprehensive and non-comprehensive educational programs, acknowledging and describing the District’s obligation to provide a sufficient notice and hearing under California Education Code §§ 48900 et seq. prior to excluding any student from comprehensive school for disciplinary reasons and informing students who believe they have been excluded from comprehensive school for disciplinary reasons without appropriate notice and a hearing of the student’s right to a meeting pursuant to Section III.B. of this Decree; and shall inform the student of the student’s potential right to be reinstated in comprehensive school and/or receive compensatory educational services and the opportunity to earn educational credits pursuant to Section III.C. & D. The notice shall identify a specific District representative for students and their parents/guardians to contact to schedule the meeting.
3. All written and oral notices and communications in this Section III.A. shall be provided to both the student and the student’s parent/guardian and shall be in English, Spanish or the recipient’s primary language as required by California Education Code Section 48385.
4. A notice shall be developed to notify potential Class Members and their Guardians of their general rights under this Consent Decree. The notice shall be published at the following places: Alameda County Probation Department, Alameda County Department of Social Services, Alameda County Juvenile Court, Alameda County Family Court, the Berkeley Organization of Churches, Berkeley Youth Alternatives, the Berkeley High School Jacket.
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B. Meeting to Determine Whether Students Were Unlawfully Excluded from School 1. Within fifteen school days of receiving a claim form from a potential Class
Member pursuant to Sections III.A.1. & 2, the District shall schedule and convene a meeting with each of the students identified in Sections III.A.1 & 2 and shall invite the parent/guardian of the student to attend that meeting.
2. The student and parent/guardian shall be informed of their right to be accompanied to the meeting by any person of her or his choosing. At the meeting, the District shall determine whether the student was excluded from a comprehensive educational program for disciplinary reasons without a hearing. If the student has been excluded from a comprehensive educational program in part or in whole due to the student’s behavior or a violation of the District’s student conduct rules and if the District cannot document that the student had received appropriate notice and the appropriate hearing as required by California Education Code §§ 48432.5 or 48900 et seq., the student shall be deemed a “Class Member.” If the District does provide documentation that the student had received notice, a hearing, and a formal order of expulsion, (where necessary) the student may nonetheless provide evidence that she did not receive such notice, a hearing, or formal order of expulsion and the District shall determine whether the student was excluded from a comprehensive educational program in violation of California Education Code §§ 48900 et seq. If the District determines that the student was so excluded, the student shall be deemed a “Class Member.”
3. Upon the determination that a student is a Class Member, the District shall immediately provide the student an offer to be immediately reinstated, if appropriate, to comprehensive school pursuant to Section III.C., and shall be entitled to a plan developed pursuant
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to Section III.D. If the District determines that the student was not unlawfully excluded from comprehensive school, the student may appeal that decision pursuant to Section III.I.
C. Offer to Immediately Reinstate Unlawfully Excluded Students to Comprehensive Schools 1. Immediately upon the determination pursuant to Section III.B. or III.I. that a
student is a Class Member, the District shall immediately offer the Class member reinstatement to an age- and grade-level-appropriate comprehensive school in the District, unless reinstatement is not appropriate because the student is 18 years of age or older or the student no longer resides in the District.
2. The District shall appoint an administrator who shall have the authority and responsibility to ensure immediate enrollment of the student pursuant to this Section and shall ensure that school-site staff and administration facilitate such re-enrollment, including providing the student with an appropriate class schedule and appropriate instructional materials.
D. Development of Plan for Students to Earn Credits and Receive Compensatory Educational Services Within fifteen school days of the determination by the District or the Neutral (as provided
in Section III.I. below) that a student is a Class Member, the District shall develop with the Class Member an individualized plan for the Class Member to receive compensatory educational services and to earn appropriate credits toward graduation. If the Class Member or her parent/guardian disagrees with the District’s plan for compensatory education, the Class Member or her parent/guardian may appeal the District’s decision pursuant to Section III.I.
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1. Each Class Member’s plan to earn academic credits shall consist of the following: a. The goal of the plan is to assist the Class Member in recouping, as quickly
as possible, all credits lost due to the District’s wrongful exclusion of the student (hereinafter “the exclusion”) from a comprehensive school program—with the intent to graduate the Class Member on time with the Class Member’s age- and grade-level peers.
b. The District shall initially conduct an assessment of the credits the Class Member has earned in comprehensive school and alternative programs and determine the credits the student needs to graduate.
c. The plan may include, as appropriate, enrollment in courses offered in a comprehensive school, the development of an after-school, independent study program, or credit for work at a community college.
d. The District shall ensure immediate provision of all services and funds necessary to implement the plan.
2. Each Class Member’s plan to receive compensatory educational services shall consist of the following:
a. The District shall provide to each Class Member a determination of the Class Member’s mathematics and English-Language Arts skills to assess the extent to which compensatory education services should be provided to the student for the exclusion of the student.
b. The District shall include in the Class Member’s compensatory education plan, all recommendations of the District to which the Class Member agrees.
c. Compensatory education may include, but is not limited to, educational therapy/tutoring, summer school, adult education, speech and language services, mental health
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services, career counseling, vocational programming, post-secondary vocational or college coursework. In determining whether compensatory educational services provided by outside service providers is appropriate, the Parties and, if necessary, the Neutral shall first consider the compensatory educational services available within the District.
d. Within thirty days of any agreement regarding compensatory education services or any determination by a Neutral regarding compensatory education services, the District shall enter into and comply with any necessary contracts with outside service providers for the provision of compensatory educational services. E. Expungement and Modification of Educational Records of Unlawfully Excluded
Students 1. Within fifteen school days of the determination that a student is a Class Member, the District shall expunge or modify the Class Member’s student record as follows: (1) any record reflecting that a Class Member had been properly expelled shall be expunged; and (2) a notation shall be made in the Class Member’s record that any exclusion from comprehensive school programs for more than 5 consecutive school days or more than 20 school days in any school year was unlawful, unless such suspension was lawful under the California Education Code. A copy of such expunged/modified records shall be provided to the Class Member and the Class Member’s parent/guardian. 2. Within fifteen school days of the determination that a student is a Class Member, the District shall also inform the Class Member that she is entitled to submit a letter or any other written statement to the District to be placed in her student record which letter or statement explains, contradicts, or objects to any reference to the Class Member’s conduct or any incident related to the exclusion of the Class Member from comprehensive school. The District shall ensure that such letter or statement shall be placed in the student’s educational records.
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F. Establishment of Policies, Procedures, and Training Programs to Prevent Unlawful Exclusion of Students from Comprehensive School 1. At the first meeting of the Monitoring Committee (as constituted pursuant to
Section IV.B. below), the Board of Education shall provide to the Monitoring Committee revised policies, a student suspension/expulsion monitoring system, and forms that are designed to ensure that no student is excluded from comprehensive educational programs in violation of California Education Code §§ 48900 et seq.
2. Within 60 calendar days of the effective date of this Consent Decree, the District shall provide an in-service training to all staff and administration deemed appropriate by the District regarding the policies developed pursuant to this Section. At the first meeting of the Monitoring Committee, the District Superintendent shall provide the Monitoring Committee with a signed statement that all appropriate District staff and administration received such training and shall provide the Monitoring Committee with attendance sheets containing the signature of all District personnel who participated in the trainings. G. Compliance with Due Process Requirements
1. The District shall not authorize or participate in any practice that involuntarily excludes students from comprehensive school or involuntarily reassigns students from comprehensive school programs to county community schools, continuation schools, homehospital instruction programs or independent study programs for alleged violations of the District’s student conduct rules, unless the District provides appropriate notice and an appropriate hearing as required by California Education Code §§ 48432.5 or 48900 et seq.
2. The District shall meet the requirements established in Section G.1. for six consecutive semesters (three years). The District shall also document that, for six consecutive semesters, (three years), no student has been involuntarily excluded from comprehensive school
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or involuntarily reassigned from comprehensive school programs to a county community schools continuation school, home-hospital instruction programs or independent study programs for alleged violations of the District’s student conduct rules, unless the District provided appropriate notice and an appropriate hearing as required by California Education Code §§ 48432.5 or 48900 et seq. H. Plan to Address Racial/Ethnic Disproportionality in School Discipline
1. Beginning on the first date that the Monitoring Committee meets and on a quarterly basis thereafter, the District shall provide data for the most recent quarter, disaggregated on the basis of race, ethnicity, grade level, and gender to the Monitoring Committee indicating (1) the number of students recommended for expulsion for disciplinary reasons and the reason for such recommendation; (2) the number of students who received an expulsion hearing; (3) the number of students who were formally expelled from the District by the Board of Education and the reason for such expulsion; (4) the number of students whose expulsions were suspended; (5) the number of students reassigned to or enrolled in (a) county community schools, (b) continuation schools, (c) home-hospital instruction programs, or (d) independent study programs, and the reason for such reassignment.
2. Developing a Plan to Address Racial/Ethnic Disproportionality in School Discipline
a. The District shall develop a plan to reduce the racial/ethnic disproportionality in (1) the number of students recommended for expulsion; (2) the number of students formally expelled; and (3) the number of students reassigned to (a) county community schools, (b) continuation schools, (c) home-hospital instruction programs, or (d) independent study programs. Such plan shall include, but not be limited to, the following: (a) staff and faculty training in
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cultural diversity, (b) behavioral intervention strategies that are alternatives to suspension and expulsion, and (c) ensuring the appropriateness of referrals to Berkeley Alternative High School (“Berkeley Alternative”), ensuring that students who are referred to Berkeley Alternative receive appropriate procedural protections, and ensuring that those attending Berkeley Alternative are appropriately given the option to re-enroll in Berkeley High School.
b. Within 60 days after the effective date of this Consent Decree, the plan shall be provided to the Plaintiffs. Plaintiffs shall have the authority to accept or reject the District’s plan for good faith reasons (e.g., inappropriate timelines, lack of specificity) within 14 days of receiving the Plan. If the Plaintiffs accept the plan, it shall become a part of this Consent Decree. If the Plaintiffs reject the plan, within 14 days, the Parties shall first meet and confer in good faith to resolve any differences regarding the plan. If that meet and confer process does not result in an agreement, the District may request that the Court approve its plan and make it part of this Consent Decree. Plaintiffs may oppose that request. I. Appeals from District Determinations and Dispute Resolution
1. For the duration of this Consent Decree, the District shall use the services of one or more neutral, third-party person(s) (“Neutral”) who shall be charged with resolving disputes between individual students or Class Members and the District regarding the implementation of Sections III.B., C., D., & E of this Decree. The Parties shall make best efforts to create a panel of qualified Neutrals who will work without compensation.
2. The Neutral shall be selected by the following process: Within 20 calendar days of the effective date of this Decree, the Parties shall meet and confer in an effort to agree upon the selection of a Neutral(s). In the event that the Parties cannot reach agreement on the
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appointment of any Neutral, the Parties agree to immediately submit the matter to the Court and request that the Court select a Neutral.
3. Should a Neutral need to be replaced, this process in Section III.I.2. shall again be followed to select a replacement Neutral. Subject to the Court’s approval, the Neutral may be dismissed and a replacement sought (1) upon agreement of the Parties, or (2) by the Court upon petition of any Party when exceptional circumstances are shown.
4. The Neutral shall be charged with resolving disputes between individual students or Class Members and the District regarding the implementation of Sections III.B., C., D., & E of this Decree. Any time that the District and a student or Class Member disagree regarding the implementation of Section III.B., C., D., or E., the District shall inform the student or Class Member of his or her right to appeal the District’s decision and provide the student or Class Member with information to initiate the appeals process. If the student elects to appeal the District’s decision, the Student must file a notice of appeal with the District within 15 school days of the District’s decision. Within 15 school days of receiving the notice of appeal, the Neutral shall meet with the student or Class Member and a District representative to hear the appeal. After hearing the Appeal, the Neutral shall issue, within one day of the hearing, a brief (one paragraph) written decision that resolves the dispute. The written decision shall be binding on the student or Class Member and the District.
IV. CONSENT DECREE REPORTING AND OVERSIGHT A. Consent Decree and Order of the Court Upon the final approval of this Consent Decree by the Court, this Decree and each and every one of its supplements or modifications, if any, shall become a Decree of the Court, and
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shall be enforced as an order entered by this Court. The Court will retain jurisdiction to ensure implementation of the Decree. The Court shall have the authority to enter any additional orders it deems appropriate to ensure compliance with this Decree. B. The Students’ Rights Monitoring Committee
1. The Parties agree to establish a Student’s Rights Monitoring Committee (the “Monitoring Committee”). The Monitoring Committee shall consist of five persons, all of whom must be identified within 60 days of the effective date of this Consent Decree. The Monitoring Committee shall include two persons of the District Superintendent’s choosing. The Monitoring Committee shall also include three persons selected by the Plaintiff Class and may include one or more of Plaintiffs’ counsel. The Parties may, at any time and with full discretion, replace any or all of the persons whom they have selected for the Monitoring Committee. The Parties may mutually agree to expand the number of persons on this Committee, so long as the Parties’ respective proportional representation on the Committee remains the same.
2. The Monitoring Committee shall initially meet within 90 calendar days of the effective date of this Decree and on a quarterly basis thereafter throughout the duration of this Decree. C. Reporting to the Monitoring Committee and the Court
Within 90 calendar days of the effective date of this Decree and on a quarterly basis thereafter throughout the duration of this Decree, the District shall prepare a written report for Plaintiffs’ counsel, the Monitoring Committee, and the Court. This report shall include the following:
1. A narrative description of the District’s efforts to implement each Section of this Decree;
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2. Disaggregated on the basis of race, ethnicity, grade level, and gender, the number of students who sought a meeting pursuant to Section III.B., the number of students who were deemed “Class Members” pursuant to such meeting, the number of students who were not deemed “Class Members” pursuant to such meeting, the number of Class Members who received and the number who did not receive an offer of immediate reinstatement pursuant to Section III.C., the number of Class Members who received and the number who did not receive a Plan to earn credits and receive compensatory educational services pursuant to Section III.D., and the number of Class Members whose records were expunged or modified and the number of Class Members whose records were not expunged or modified pursuant to Section III.E.
3. Disaggregated on the basis of race, ethnicity, grade level, and gender, (1) the number of students recommended for expulsion; (2) the number of students formally expelled; (3) the number of students whose expulsions were suspended and (4) the number of students reassigned to or enrolled in (a) county community schools, (b) continuation schools, (c) homehospital instruction programs, or (d) independent study programs.
4. A narrative report on the District’s progress toward meeting the requirements established pursuant to Section III.H.2.
5. The number of disputes heard by the Neutral pursuant to Section III.I. 6. At the first Committee meeting, the District Superintendent shall provide the Monitoring Committee with a statement affirming that all appropriate District faculty and administration received training pursuant to Paragraph III.F.2 D. Responsibilities of the Monitoring Committee The Monitoring Committee shall have the following authority and responsibilities: 1. Meeting as a Committee pursuant to Section IV.B.
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2. Reviewing and providing comments on the District’s revised policies, student data management system, and forms pursuant to Section III.F.
3. Reviewing the District’s report prepared pursuant to Section IV.C. and providing comments on such reports.
4. Providing comments to the District regarding the District’s efforts at implementing this Consent Decree.
V. MISCELLANEOUS PROVISIONS A. Relief Available to Plaintiffs and Class Members Defendants are hereby released and discharged from all causes of action, claims, demands, damages, and liabilities now existing or hereafter arising from the matters described in this Action (Yarman Smith, et al. v. Berkeley Unified School District, et al., ) and Section I, of this Agreement, except to the extent that Plaintiffs/Class Members reserve additional rights they may have under the IDEA (Individuals with Disabilities Act) and Section 504 of the Rehabilitation Act. This paragraph also shall not preclude any person who, after the date of the Court’s final approval of this Consent Decree, is involuntarily excluded from comprehensive school or involuntarily reassigned from comprehensive school programs to county community schools, continuation schools, home-hospital instruction programs, and independent study programs for alleged violations of the District’s student conduct rules without having received appropriate due process of law from pursuing any claims and seeking and obtaining any relief, including but not limited to equitable relief and compensatory damages.
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B. Agreement to Defend Consent Decree The Parties agree to jointly propose this Consent Decree to the Court and advocate for its
approval as a preliminary and final order of the Court. The Parties agree to defend this Consent Decree against any potential third parties who may object to this Decree’s entry as an order of the Court. C. Effective Date
This Consent Decree shall become effective on the date it is signed as an order of this Court. D. Amending the Consent Decree
The Parties reserve the right to move the Court to amend this Consent Decree in accordance with prevailing legal standards for modification of a consent decree. The Parties agree that prior to moving the Court to amend the Decree, the parties shall meet and confer in good faith to resolve any disputes regarding the Decree. E. Severability
All individual provisions in this Consent Decree shall be severable. If any one or more such provision is determined by the Court to be in any way unenforceable, such determination shall have no effect on any of the remaining paragraphs, provisions, clauses, sections, sentences, or words in this Decree. F. Release of Personal Liability Claim
By entering this Consent Decree, Plaintiffs release all Defendants from any liability in their personal capacity.
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VI. TERMINATION OF LITIGATION After proceeding under the terms of this Consent Decree for at least six consecutive semesters (three years), if the District believes that it has achieved full compliance with this Consent Decree, the District may issue a report to Plaintiffs’ counsel, the Monitoring Committee, and the Court documenting such full compliance. The Parties or the District may then move the Court for an order terminating this litigation and Consent Decree, and dismissal of the litigation with prejudice. The Court shall conduct a hearing to determine whether the District has achieved full compliance with this Decree. The District shall demonstrate to the Court’s satisfaction that this Decree has been implemented, that all requirements have been met, and that it has achieved compliance with the Consent Decree. Upon the conclusion of the hearing, the Court may enter any further orders it deems appropriate, including, but not limited to, an order terminating this Consent Decree and its jurisdiction, an order continuing jurisdiction, or an order modifying the Consent Decree.
VII. ATTORNEYS FEES Within 30 days of the effective date of this Consent Decree, the District agrees to pay to Plaintiffs’ counsel $50,000 in full satisfaction of Plaintiffs’ attorneys fees and costs for the duration of this Consent Decree, except that Plaintiffs reserve the right to seek attorneys fees in connection with any action or proceedings brought to enforce the terms of this Decree. If Plaintiffs believe that the terms of this Decree are not being implemented, the parties agree to meet and confer in good faith regarding such issues, or utilize the Monitoring Committee to
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resolve such disputes prior to bringing any action or proceeding to enforce the terms of this Decree.

Date:_________________________

_______________________________________ Michele B. Lawrence Superintendent, Berkeley Unified School District

Date:_________________________ Approved as to Form:

_______________________________________ Nancy Riddle President, Board of Education Berkeley Unified School District

Date:_________________________ For the Plaintiffs:

_______________________________________ Marleen Sacks Atkinson, Andelson, Loya, Ruud & Romo Attorneys for Defendants

Date:_________________________

_______________________________________ Lugertha Smith Guardian ad litem for Yarman Smith

Date:_________________________

_______________________________________ William S. Koski Youth & Education Law Clinic Attorneys for Plaintiffs

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Date:_________________________ Date:_________________________

_______________________________________ Abigail Trillin Legal Services for Children, Inc. Attorneys for Plaintiffs
_______________________________________ William F. Abrams Pillsbury Winthrop LLP Attorneys for Plaintiffs

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Exhibit A

BUSD Outreach: Plan
Within ten school days of the Court’s approval of the Consent Decree, the District shall implement the following Outreach Plan:
1. Written & Oral Outreach to Targeted Students: The District shall provide the following groups of students with written and oral notice, in English, Spanish, or in the recipient’s primary language pursuant to Education Code section 48985, of their rights under the Consent Decree:  Students who have been recommended for expulsion, but who may not have received an expulsion hearing during the 2002/03 or 2003/04 academic years.  Students who have been placed in a continuation school, a community day school, an independent study program, or a home-hospital instruction program (collectively, “alternative program”) during the 2002/03 or 2003/04 academic years.  Students who have been excluded from school entirely for more than 5 consecutive school days or 20 cumulative school days during either the 2002/03 or 2003/04 academic years.
A. Written Outreach: The District shall provide written notice, in English, Spanish, or in the recipient’s primary language pursuant to Education Code section 48985, to the above listed groups of students by providing them with the following materials: a. Written Outreach to Targeted Students Letter b. Compensatory Education Claim Form c. Compensatory Education Claims Process
B. Oral Outreach: The District shall also provide oral notice, in English, Spanish, or in the recipient’s primary language pursuant to Education Code section 48985, to the above listed groups of students by contacting the student and/or parent/guardian in person (such as at school) or at their primary telephone number to provide the information detailed in the Written Outreach to Targeted Students Letter or by reciting the Oral Outreach to Targeted Students Script on voicemail or an answering machine.
2. Written Notice to All BUSD Students & Families: The District shall provide all students enrolled in all District comprehensive and non-comprehensive educational programs with written notice, in English, Spanish, or in the recipient’s primary language pursuant to Education Code section 48985, of their rights under the Consent Decree by providing them with the following materials. a. Written Outreach to All BUSD Students b. Compensatory Education Claim Form
3. Publication & Posting: Notice to potential Class Members and their parent/ guardians of their general rights under the Consent Decree, shall also be made by publication or posting of the Written Outreach for Publication and Posting, in the English and Spanish languages, at the following places: Alameda County Probation Department, Alameda County Department of Social Services, Alameda County Juvenile Court, Alameda County Family Court, the Berkeley Organization of Churches, Berkeley Youth Alternatives, and the Berkeley High School Jacket.

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-1

BUSD Outreach: Written Outreach to All BUSD Students & Families

 Were you or your African-American or Latino student asked to leave Berkeley High or a Berkeley Middle School after being accused of breaking school rules?
 Were you or your African-American or Latino student transferred to Berkeley Alternative High, Rock LaFleche, Independent Study, Home Health Instruction, or any other alternative school program after being accused of breaking school rules?
 Were you or your African-American or Latino student excluded from school for more than 5 days in a row or more than 20 days in one academic year after being accused of breaking school rules?
If so, you or your student may be entitled to return to his or her regular school and receive free educational services, including an individualized program to earn extra credits toward graduation.

Under the law, before students can be excluded from school or involuntarily transferred to alternative programs for disciplinary reasons, school districts must take steps to inform students and parents of their rights and to make sure that students and parents have a chance to tell their side of the story at a meeting with a school administrator or at a hearing in front of the board of education. It is never legal for a student to be involuntarily placed on independent study or home health instruction.

In August 2004, a group of African-American and Latino students, represented by the Stanford Law School Youth and Education Law Project, Legal Services for Children, and Pillsbury Winthrop, filed a lawsuit against the Berkeley Unified School District. The lawsuit, called Smith v. Board of Education, accused the Berkeley Unified School District of excluding students from school or forcing students to transfer to alternative programs without informing them of their rights and without providing them with an opportunity to tell their side of the story. While the District denied those allegations, the students and the District agreed to settle the lawsuit. Under the agreement, the Berkeley Unified School District must allow any African-American or Latino student who was illegally excluded from school or forced to transfer to an alternative school program to return to his or her regular middle school or high school. The District must also provide any African-American or Latino student who was illegally excluded from school with additional educational services, such as tutoring, and extra credit opportunities to make up for the time that the student was kept out of school.

If you believe that you or your African-American or Latino student was unlawfully excluded

from school or was forced to transfer from a comprehensive school to an alternative school

program please fill out the enclosed form and return it to the District by ___________________.

Within 15 school days of receiving your form, the District will schedule a meeting with you and

your student to determine if your student was wrongfully excluded from school and is entitled to

return to a comprehensive school and receive compensatory educational services. For more

information contact

of the Berkeley Unified School District at 510-555-1212.

If you would like free legal consultation about your student’s situation, please contact Legal Services for Children at 415-863-3762 or the Youth and Education Law Project at 650-723-4336.

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-2

BUSD Outreach: Written Outreach to Targeted Students

According to District records, during the past three school years, your African-American or Latino student was:  Referred for expulsion or asked to leave Berkeley High or a Berkeley Middle School;
 Suspended or excluded from school for more than 5 days in a row or more than 20 days in one academic year; or
 Transferred to Berkeley Alternative High, Rock LaFleche, Independent Study, Home Health Instruction, or another alternative school program.
If your African-American or Latino child was excluded from school or referred to an alternative education program for disciplinary reasons, he or she may be entitled to return to his/her regular, comprehensive school and may be entitled to receive additional free educational services, including an individualized program to earn extra credits toward graduation.

Under the law, before students can be excluded from school or involuntarily transferred to alternative programs for disciplinary reasons, school districts must take steps to inform students and parents of their rights and to make sure that students and parents have an chance to tell their side of the story at a meeting with a school administrator or at a hearing in front of the board of education. It is never legal for a student to be involuntarily placed on independent study or home health instruction.

In August 2004, a group of African-American and Latino students, represented by the Stanford Law School Youth and Education Law Project, Legal Services for Children, and Pillsbury Winthrop filed a lawsuit against the Berkeley Unified School District. The lawsuit, called Smith v. Board of Education, accused the Berkeley Unified School District of excluding students from school or forcing students to transfer to alternative programs without informing them of their rights and without providing them with an opportunity to tell their side of the story. While the District denied those allegations, the students and the District agreed to settle the lawsuit. Under the agreement, the Berkeley Unified School District must allow any African-American or Latino student who was illegally kicked out of school or forced to transfer to an alternative school program to return to his or her regular middle school or high school. The District must also provide any African-American or Latino student who was illegally excluded from school with additional educational services, such as tutoring, and extra credit opportunities to make up for the time that the student was kept out of school.

To determine if your African-American or Latino student is entitled to return to a regular school

program and/or entitled to receive free educational services, you must fill out the attached

Compensatory Education Claim Form and submit it to the Berkeley Unified School District no

later than _______________. Within 15 school days of receiving your form, the District will

schedule a meeting with you and your student to determine if your student was wrongfully

excluded from school and is entitled to return to a comprehensive school and receive

compensatory educational services. For more information contact

of the

Berkeley Unified School District at 510-555-1212.

If you would like free legal consultation about your student’s situation or assistance filling out the attached form, please contact Legal Services for Children at 415-863-3762 or the Youth and Education Law Project at 650-723-4336.

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-3

BUSD Outreach: Script for Oral Outreach to Targeted Students

My name is

. I am calling on behalf of the Berkeley Unified School

District to notify you that your student may be entitled to receive additional educational

benefits as the result of the settlement of the Smith v. BUSD lawsuit. According to

District records, your African-American or Latino child was referred for expulsion during

the past three school years, has been excluded from school for more than 5 consecutive

school days or more than 20 cumulative school days during one academic year, or is

enrolled or was enrolled in a non-comprehensive educational program, such as Berkeley

Alternative High School, Rock LaFleche, Independent Study, or Home and Hospital

Instruction. If your African-American or Latino child was excluded from school or

referred to an alternative school program for disciplinary reasons, he or she may be

entitled to return to their regular, comprehensive school and may be entitled to

receive additional free educational services, including an individualized program to

earn extra credits toward graduation.

For more information please contact

of the Berkeley Unified School

District at 510-555-9999. For free legal consultation, you may also contact Legal

Services for Children at 415-863-3762 or Stanford Law School’s Youth and Education

Law Project at 650-723-4336.

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-4

BUSD Outreach: Written Outreach for Publication & Posting
 Were you or your African-American or Latino student asked to leave Berkeley High or a Berkeley Middle School after being accused of breaking school rules?
 Were you or your African-American or Latino student transferred to Berkeley Alternative High, Rock LaFleche, Independent Study, Home Health Instruction, or any other alternative school program after being accused of breaking school rules?
 Were you or your African-American or Latino student excluded from school for more than 5 days in a row or more than 20 days in one academic year after being accused of breaking school rules?
If so, as the result of agreement reached in the lawsuit called Smith v. Board of Education of the Berkeley Unified School District, your African-American or Latino student may be entitled to return to his or her regular school and receive free educational services, including an individualized program to earn extra credits toward graduation. To find out more please contact the Berkeley Unified School District at 510-999-9999 or for free legal consultation contact Legal Services for Children at 415-863-3762 or the Youth and Education Law Project at 650-723-4336.

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-5

BUSD Outreach: Compensatory Education Claim Form
COMPENSATORY EDUCATION CLAIM FORM
Pursuant to the Smith v. Berkeley Board of Education Consent Decree
By filling out this form you are initiating a claim that, following a disciplinary incident, you or your African –American or Latino student was wrongfully excluded from a comprehensive school program or wrongfully transferred to a noncomprehensive school program. An exclusion or reassignment was “wrongful” if the District did not communicate what the alleged misconduct was or did not give the student and her or his parent/guardian an opportunity to present their side of the story during a hearing, as required by the applicable law. The District will send you written confirmation that your Claim Form has been received and within 15 schooldays the District will convene a meeting with you and your student to determine whether your student was wrongfully excluded from school and is entitled to return to a comprehensive school and receive compensatory educational services.

Student Name

Student Date of Birth

Student Race/Ethnicity

Current/Last School Attended:

Grade Level

Parent/Guardian Name

Address

Home Phone

Work/Cell Phone

Approximate date of disciplinary action resulting in exclusion/transfer

Approximate dates of absence/exclusion due to disciplinary action

If applicable, approximate dates of enrollment in non-traditional educational program (e.g., Berkeley Alternative High School, Rock LaFleche, Independent Study, Home & Hospital Instruction)

If applicable, name of non-traditional education program

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-6

BUSD Outreach: Compensatory Education Claim Form
COMPENSATORY EDUCATION CLAIMS PROCESS
Pursuant to the Smith v. Berkeley Board of Education Consent Decree

Initiating the Claims Process

1. The student, parent, or guardian (“the Claimant”) may obtain the Compensatory Education Claim Form from Legal Services for Children, the Stanford Law School Youth & Education Law Project, or the Berkeley Unified School District (“the District”).

The Claimant must complete the Compensatory Education Claim Form and submit it to the Berkeley Unified School District.

Upon receipt of a completed claim form and documents, the Berkeley Unified School District must immediately date and log the claim for tracking purposes. The District must send (or deliver in person, if the claim form is filed in person) written acknowledgement to the Claimant that the claim was received. This acknowledgement must include the date on which the claim was logged.

Determination of Class Member Status

2. Within 15 schooldays of receiving a claim form from a potential Class Member, the District shall schedule and convene a meeting with the student and shall invite the parent/guardian of the student to attend that meeting. At the meeting the District shall determine whether the student, who is African-American or Latino as indicated by self-identification in official records, was excluded from a comprehensive educational program for disciplinary reasons without a hearing.

The student shall be deemed a “Class Member” if:
 The student, due to her alleged behavior or a violation of the District’s student conduct rules, has been excluded or reassigned from a comprehensive educational program for any period of time and the District cannot document that the student received appropriate notice and the appropriate hearing as required by law.
 Despite documentation from the District that the student had received notice, a hearing, and a formal order of expulsion (where necessary), the student is able to provide evidence that she did not receive such notice, a hearing, or formal order of expulsion as required by law.

Reinstatement to a Comprehensive School Program

3. Upon determination that a student is a Class Member, the District shall immediately offer the Class Member immediate reinstatement to an age- and grade-levelappropriate comprehensive school in the District, unless reinstatement is not

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-7

BUSD Outreach: Compensatory Education Claim Form
appropriate because the student is 18 years of age or older or the student no longer resides in the District.
The District shall also appoint an administrator who shall be responsible for ensuring the immediate re-enrollment of the student. The administrator shall also ensure that school-site administration and staff facilitate the student’s re-enrollment, including providing the student with an appropriate class schedule and appropriate instructional materials.
Development of Plan for Credit Recovery and Compensatory Educational Services
4. Within 15 school days of the determination by the District or Neutral that the student is a Class Member, the District shall develop with the Class Member an individualized plan for the Class Member to receive compensatory educational services and to earn appropriate credits toward graduation.
 Each Class Member’s plan to earn academic credits shall consist of the following:
a. The goal of the plan is to assist the Class Member in recouping all credits lost due to the District’s wrongful exclusion of the student as quickly as possible with the intent to graduate the Class Member on time with the Class Member’s age- and grade-level peers.
b. The District shall initially conduct an assessment of the credits the Class Member has earned in comprehensive school and alternative programs and determine the credits the student needs to graduate.
c. The plan may include, as appropriate, enrollment in courses offered in a comprehensive school, the development of an after-school, independent study program, and/or credit for work at a community college.
d. The District shall ensure immediate provision of all services and funds necessary to implement the plan.
 Each Class Member’s plan to receive compensatory educational services shall consist of the following:
a. The District shall provide each Class member a determination of the Class Member’s mathematics and English-Language Arts skills to assess the extent to which compensatory education services should be provided to the student to compensate for the student’s exclusion from school.
b. The District shall include in the Class member’s compensatory education plan all recommendations of the District to which the Class Member agrees.

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-8

BUSD Outreach: Compensatory Education Claim Form

c. Compensatory education may include, but is not limited to, educational therapy/tutoring, summer school, adult education, speech and language services, mental health services, career counseling, vocational programming, post-secondary vocational or college coursework. In determining whether compensatory educational services provided by outside service providers is appropriate, the Parties and, if necessary, the Neutral shall first consider the compensatory educational services available within the District.

d. Within 30 days of any agreement regarding compensatory education services or any determination by a Neutral regarding compensatory educational services, the District shall enter into and comply with any necessary contracts with outside service providers for the provision of compensatory educational services.

Modification/Expungement of School Records

5. Within 15 school days of the determination that a student is a Class member, the District shall:

a. Expunge or modify the Class Member’s student record as follows:  any record reflecting that a Class Member has been properly expelled shall be expunged; and  a notation shall be made in the Class Member’s record that any exclusion from comprehensive school programs for more than 5 consecutive school days or more than 20 school days in any school year was unlawful, unless such suspension was lawful under California education law.
A copy of the expunged/modified records shall be provided to the Class Member and the Class Member’s parent/guardian.

b. Inform the Class Member that she is entitled to submit to the District a letter or any other written statement explaining, contradicting, or objecting to any reference to the Class Member’s conduct or any incident related to the exclusion of the Class Member from comprehensive school. The District shall ensure that the letter or statement is placed in the student’s educational records.

Right to Appeal District Determinations to Neutral Third-Party

6. The Claimant or Class Member shall have the right to appeal the District determinations regarding:
 The Claimant’s claim of unlawful exclusion from school and her status as a Class Member;
 The Class Member’s reinstatement to an appropriate comprehensive school program;

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-9

BUSD Outreach: Compensatory Education Claim Form
 The District’s plan for the Class Member to earn credits and receive compensatory educational services; and
 The expungement and modification of the Class Members educational records.
The District shall notify the Claimant or Class Member of her right to appeal and shall provide the Claimant or Class Member with information and forms to initiate the appeals process.
Appeal will be made to one or more neutral person(s) (“Neutral”) who shall have the authority to resolve disputes between Claimants or Class Members and the District.
If the Claimant or Class Member wants to appeal a District determination, the Claimant or Class Member must file a Notice of Appeal with the District within 15 school days of the District’s determination. Within 15 schooldays of receiving the Notice of Appeal, the Neutral shall meet with the Claimant or Class Member and a District representative to hear the appeal. After hearing the appeal, the Neutral shall issue, within one day of the hearing a brief (one paragraph) written decision that resolves the dispute. The written decision shall be binding on the Claimant or Class Member and the District.

005251.00084/75370v2

Smith et al. v. Berkeley Unified School District, et al., No. C-04-3306 (WDB) Consent Decree—Exhibit A
A-10

 
 Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 1 of 32

United States District Court
For the Northern District of California

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA
9

10 YARMAN SMITH, a Minor, by

11

LAGERTHA SMITH, his guardian ad litem, et al.,

12

Plaintiffs,

13

14

v.

15

THE BOARD OF EDUCATION OF THE BERKELEY UNIFIED

16 SCHOOL DISTRICT, et al.,

17

Defendants. _____________________________/

18

No. C 04-3306 WDB
ORDER (1) PROVISIONALLY CERTIFYING CLASS FOR SETTLEMENT PURPOSES, (2) APPROVING PARTIES' PROPOSED NOTICE PLAN, (3) SETTING DATE FOR FAIRNESS HEARING, (4) PRELIMINARILY APPROVING CONSENT DECREE, AND (5) CONDITIONALLY GRANTING PETITION FOR APPROVAL OF THE ATTORNEYS' FEES PORTION OF THE SETTLEMENT

19 I. Introduction

20

A. Background

21

The plaintiffs in this case are African-American and Latino students who attended

22 comprehensive middle school or high school in the Berkeley Unified School District prior

23 to being excluded from school or re-assigned for disciplinary reasons to non-comprehensive

24 community schools, continuation schools, or independent study programs. Civil Rights

25 Complaint, filed August 13, 2004 ("Complaint"), ¶ 1. Plaintiffs allege that they were not

26 provided appropriate notice or a hearing prior to being involuntarily excluded or transferred

27 to sub-standard educational programs. Complaint, ¶ 1.

28

1

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 2 of 32

1

Plaintiffs assert that the lack of notice and a hearing violated their rights to due

2 process under the United States Constitution, and their right to a public education under the

3 Constitution of the State of California and the California Education Code. Complaint, ¶¶ 2,4.

4 Plaintiffs also claim that defendants' alleged practice of excluding students from

5 comprehensive school without due process had a disparate negative impact on African-

6 American and Latino students, and that defendants' conduct was undertaken with the intent

7 to discriminate against those students in violation of the equal protection clause. Complaint,

8 ¶3. Defendants deny plaintiffs' claims.

9

Although defendants deny plaintiffs' claims, the parties reached a tentative settlement

10 of those claims. On March 14, 2005, the parties filed a Joint Motion for Preliminary

11 Approval of Proposed Consent Decree and Provisional Certification of Class for Settlement

12 Purposes. The Court carefully reviewed the parties' joint motion, and on April 1, 2005,

13 convened a telephonic conference to discuss the Court's questions about and concerns

14 regarding the parties' joint motion.

15

On April 15, 2005, the parties filed a letter brief responsive to the questions and

16 concerns raised by the Court during the April 1, 2005, conference and in its order following

17 the telephonic conference. In some instances, the parties' letter brief addressed the Court's

18 questions and concerns by proposing modifications to the proposed Consent Decree and

19 proposed class definition. In other instances, the parties addressed the Court's questions and

20 concerns by explaining more fully the reasoning underlying the relevant provisions in their

21 joint motion and by citing additional relevant legal authorities.

22

After reviewing the parties' April 15, 2005, letter brief, the Court issued an order

23 approving many of the parties' proposed modifications and accepting many of their

24 explanations. See Order Following Review of April 15, 2005, submissions, e-filed April 21,

25 2005. The Order set forth several remaining concerns and questions, and directed the parties

26 to jointly submit a revised proposed Decree (incorporating the modifications suggested by

27

28

2

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 3 of 32

1 the parties in their April 15, 2005, submission) and a revised notice (also incorporating the

2 modifications suggested by the parties in their April 15, 2005, submission).

3

On May 3, 2005, the parties jointly filed a revised notice, revised Consent Decree, and

4 a letter addressing the Court's remaining concerns.1

5

Upon review of the parties' most recent submissions, the Court is satisfied that all of

6 its concerns have been adequately addressed by the parties. In this Order, the Court

7 provisionally certifies the class for settlement purposes, approves the parties' proposed notice

8 plan, preliminarily approves the Consent Decree, and conditionally grants the parties' petition

9 for approval of the attorneys' fees portion of the settlement. The Court also sets deadlines

10 by which (i) class members must file written objections (if any) to the proposed Consent

11 Decree, and (ii) the parties must reply to any such objections. The final fairness hearing will

12 be held on Wednesday, July 27, 2005, at 1:00 p.m.

13 II.
14 15 16 17 18 19

Certification of Class for Settlement Purposes
1. Class Definition
The parties propose to certify the following class:
All African Americans and Latinos self-identified as such in official records who have been students in the Berkeley Unified School District and who have been involuntarily excluded from comprehensive school or involuntarily reassigned from comprehensive school programs to non-comprehensive alternative programs for alleged violations of the District's student conduct rules without having received appropriate due process of law.

20 May 16, 2005, Letter, Exhibit A, p.2.

21 22 /// 23 ///

24

25

1 After reviewing the parties' May 3, 2005, submission, the Court contacted plaintiffs' counsel,

via telephone, to discuss the Court's additional suggestions regarding the language of the revised Notice

26 and the revised Consent Decree. After vetting the Court's suggestions with opposing counsel, the parties

27 filed a second revised Notice and second revised Consent Decree. See Koski letter, e-filed May 16,

28 2005, Exhibits A and B.

3

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 4 of 32

1

2. The proposed class meets the requirements set forth in Federal Rule of Civil

Procedure 23(a) and 23(b)

2

A class action must meet the requirements of Federal Rule of Civil Procedure 23,

3

subsections (a) and (b), whether certified for settlement or litigation. Although a district

4

court faced with a request for a settlement-only class certification need not inquire whether

5

the case would present intractable problems of trial management, all other requirements for

6

certification must be satisfied. Amchem Products v. Windsor, 521 U.S. 591, 620 (1997).

7

Because a court's determination regarding settlement class certification is not informed by

8

adversarial court proceedings, it must pay "undiluted, even heightened attention" to the

9

requirements of Rule 23(a) and (b) in the settlement context to protect the interests of absent

10

class members. Id.; In re Mego Financial Corp. Securities Litigation v. Nadler, 213 F.3d

11

454, 461-62 (9th Cir. 2000); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

12

We must first determine whether the proposed class satisfies the requirements of Rule

13

23(a). Rule 23(a) mandates that the following requirements be met: (1) impracticability of

14

joinder, (2) commonality, (3) typicality and (4) adequacy of representation.

15

Rule 23(a)(1) provides that a class action is maintainable only if "the class is so

16

numerous that joinder of all members is impracticable." Fed. R. Civ. Proc. 23(a)(1). Rule

17

23(a)(1) is an impracticability of joinder requirement, of which class size is an inherent

18

consideration within the rationale of joinder concepts. "Although the absolute number of

19

class members is not the sole determining factor, where a class is large in numbers, joinder

20

will usually be impracticable. Where the class is not so numerous, however, the number of

21

class members does not weigh as heavily in determining whether joinder would be infeasible.

22

In the latter situation, other factors such as the geographical diversity of class members, the

23

ability of individual claimants to institute separate suits, and w hether injunctive or

24

declaratory relief is sought, should be considered in determining impracticability of joinder."

25

Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982) (internal citations

26

omitted) (vacated on other grounds).

27

28

4

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 5 of 32

1

At this preliminary stage, the known class members number fourteen. See May 3,

2 2005, Letter Brief, at p.1. Plaintiffs believe2 that the total number of class members

3 substantially exceeds the fourteen known class members. Plaintiffs' belief is supported by

4 school district data, which shows that 127 students were assigned to Berkeley Alternative

5 High School during the 2003-2004 school year, and that 109 (86%) of those students are

6 African-American or Latino. See California Department of Education Website:

7 http//data1.cde.ca.gov/dataquest/. Additionally, there were 189 students assigned to 8 Independent Study during the 2003-2004 school year.3 Data currently available do not

9 indicate how many of these were African-American or Latino.

10

Although a class action determination may not be based on mere speculation, the

11 prevailing view is that the plaintiff need not allege the exact number or identity of class

12 members. See, e.g., Robidoux v. Celani, 987 F.2d 931, 935 (2nd Cir. 1993) ("[p]laintiffs

13 must show some evidence of or reasonably estimate the number of class members but need

14 not show the exact number) (internal citations omitted); Pederson v. Louisiana State

15 University, 213 F.3d 858, 868 (5th Cir. 2000) ("To satisfy the numerosity prong, 'a plaintiff

16 must ordinarily demonstrate some evidence or reasonable estimate of the number of

17 purported class members'.") (internal citation omitted); Senter v. General Motors Corp., 532

18

19

20

21

2 Defendants decline to draw any inferences from the data cited by plaintiffs, stating only that

they "do not know" whether the number of class members exceeds fourteen. See May 3, 2005, Letter

22 Report, at p.1.

23

3 Plaintiffs also rely upon school district data which shows that the number of students

24 recommended for expulsion from the Berkeley Unified School District has risen dramatically in recent

25 years, while the number of students actually ordered expelled has declined significantly. May 3, 2005, Letter Brief, at p.2. Plaintiffs speculate that "the steep increase in the number of students recommended
26 for expulsion, coupled with the sharp decline in the number of students reported expelled, coincides with

27 the onset of the District's policy and practice of funneling students who are 'discipline problems' from

28 comprehensive to non-comprehensive programs without providing them due process." Id.

5

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 6 of 32

1 F.2d 511, 523 (6th Cir. 1976) ("In ruling on a class action a judge may consider reasonable 2 inferences drawn from the facts before him at that stage of the proceedings . . .").4

3

The school district data presented by plaintiffs shows that it is extraordinarily likely

4 that the number of class members exceeds the currently known 14. There are 298 possible

5 class members just from the 2003-2004 academic year -- and the period from which class

6 members could emerge covers several years. Moreover, no evidence has been presented that

7 would support an inference that the District had multiple policies or followed multiple

8 practices in determining whether to exclude or re-assign students who were perceived as

9 sources of disciplinary problems. For that reason, it appears to be safe to assume that the

10 same policies and practices about which the 14 known plaintiffs complain were followed

11 with respect to at least an appreciable percentage of the other students who were

12 involuntarily excluded from or transferred out of the comprehensive school programs.

13

14

4 The quote from the Senter opinion occurs in the following context:

15

Appellee argues that Appellant at trial only identified sixteen black employees who he

claimed should have been promoted to supervisory positions. Appellee claims that this

16 number does not warrant the conclusion that joinder would be impractical. However,

17

Appellee is confusing evidence presented at trial on the merits with the altogether

18

different question of whether there are facts alleged which would justify the case going

to trial as a class action. Normally class certification will occur at a much earlier stage

19 of the proceedings then it did in this case. In ruling on a class action a judge may

20

consider reasonable inferences drawn from the facts before him at that stage of the

21

proceedings . . .here the Judge determined that the definable class of persons for whom

the action may be maintained consisted of all black employees who, during a period

22 between July 2, 1965 and September 1, 1971, were denied an opportunity for promotion

23

to supervisory positions although possessing seniority and qualifications equivalent to

24

white employees who were so promoted. During this period blacks comprised

approximately fourteen percent of the work force at Inland. It would be reasonable to

25 infer that a substantial number of these individuals are includable in the class eligible for

26

relief on the basis of Appellant's action and that their joinder would be impracticable.

27 28 Senter v. General Motors, 532 F.2d at 522-23 (emphasis added).

6

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 7 of 32

1 Accordingly, the Court concludes that plaintiffs have amassed substantial evidence that the

2 class size exceeds, significantly, the fourteen currently known members.

3

Additional factors strongly support the conclusion that joinder is impracticable. The

4 plaintiffs in the case are African-American and Latino children from low-income families

5 who would not be able to bear the costs of individually litigating their cases. Moreover,

6 because plaintiffs seek equitable relief and compensatory services (and do not seek damages),

7 the costs of bringing their cases individually clearly outweigh the economic value of any

8 potential recovery. In addition, as the parties point out, joinder is impracticable because

9 plaintiffs seek "injunctive, unitary relief that by its very nature requires that their cases be

10 heard as one." Parties' Joint Motion, p. 6, ll. 19-21.

11

Given all of the factors we are directed to consider, the Court finds that the

12 "impracticability of joinder" requirement has been met in this case.

13

We next turn to the "commonality requirement." A class has sufficient commonality

14 "if there are questions of fact and law which are common to the class." Fed. R. Civ. Proc.

15 23(a)(2). "Rule 23(a)(2) does not require that all questions of law or fact raised in the

16 litigation be common." Alba Conte and Herbert Newberg, Newberg on Class Actions (4th

17 ed. 2003) Vol. 1, at p. 272. "The test or standard for meeting the Rule 23(a)(2) prerequisite

18 is qualitative rather than quantitative; that is, there need be only a single issue common to all

19 members of the class. Therefore, this requirement is easily met in most cases." Id., Vol. 1,

20 at pp. 272-276.

21

In this case, a legal issue common to all class members is whether their alleged

22 exclusion from comprehensive school and/or involuntary reassignment from comprehensive

23 school to non-comprehensive alternative programs for alleged violations of the District's

24 student conduct rules without a hearing, an opportunity to present evidence, or an opportunity

25 to contest the reasons for the District's actions violated their due process rights. An

26 additional legal issue common to all class members is whether the district's alleged practice,

27 described above, had a disparate impact on African-American and Latino students. The

28

7

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 8 of 32

1 injuries suffered by members of the proposed class are also similar -- the exclusion or

2 involuntary reassignment from comprehensive school. In light of all of the questions of law

3 and fact common to the proposed class, the Court finds the commonality requirement easily

4 satisfied.

5

Rule 23(a)(3) requires 'typicality'. "The typicality requirement is said to limit the class

6 claims to those fairly encompassed by the named plaintiff's claims." General Telephone

7 Company of the Northwest v. Equal Employment Opportunity Commission, 446 U.S. 318,

8 330 (1980). "Thus, to some extent it overlaps with Rule 23(a)(2)'s requirement that there be

9 questions of law or fact common to the class, except that each test proceeds from a different

10 perspective. The typicality criterion focuses on whether a relationship exists between

11 plaintiff's claims and the claims alleged on behalf of the class. The common-question test

12 determines if a group of similarly situated persons shares claims that raise common

13 questions." Newberg on Class Actions, Vol. 1, at p. 317.

14

The typicality requirement is also closely related to Rule 23(a)(4), which requires that

15 the representative parties adequately protect the interests of the class members. Newberg on

16 Class Actions, Vol. 1, at p. 318. "Both the typicality and the adequate representation

17 requirement address the desirable characteristics of the representative of the class. While

18 typicality of claims seeks to assure that the interests of the representative are aligned with the

19 common questions affecting the class, the adequate representation criterion tests this

20 alignment of interest in two significant ways, asking: Does the representative have any kind

21 of a material conflict of interest with the class with respect to the common questions

22 involved, and will counsel for the class vigorously prosecute the action on behalf of the

23 class?" Newberg on Class Actions, Vol 1. at pp. 318-19, see also Hanlon v. Chrysler

24 Corporation, 150 F.3d 1011, 1020 (9th Cir. 1998) (citing Lerwill v. Inflight Motion Pictures,

25 Inc., 582 F.2d 507, 512 (9th Cir. 1978).

26

27

28

8

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 9 of 32

1

A plaintiff's claim is typical if it arises from the same event or practice or course of

2 conduct that gives rise to the claims of other class members and if his or her claims are based

3 on the same legal theory. Baby Neal v. Casey, 43 F.3d 48, 57 (3rd Cir. 1994).

4

In this case, the claims of the proposed class representatives arise from the same

5 practice or course of conduct that gives rise to the claims of other class members --

6 defendants' alleged practice of excluding students accused of violating the District's student

7 conduct rules from comprehensive school without a hearing, an opportunity to present

8 evidence, or an opportunity to contest the reasons for which each was being involuntarily

9 excluded. Furthermore, the representative plaintiffs' claims are based on the same legal

10 theories as those of the other class members. The representative plaintiffs' claims are

11 essentially premised on defendants' alleged violation of their procedural due process rights,

12 their rights (as ethnic minorities) to equal protection of the law, and their rights under the

13 California Constitution to a public education. April 15, 2005, Letter Brief, at p.4.

14

Because the proposed representative plaintiffs' claims arise from the same alleged

15 practice or course of conduct as that which gives rise to the claims of other class members,

16 and because the proposed representatives' claims are premised on the same legal theories as

17 those of the unnamed and unknown class members, the Court finds the "typicality"

18 requirement satisfied.

19

Rule 23(a)'s final requirement is adequacy of representation. A class action may be

20 maintained only if "the representative parties will fairly and adequately protect the interests

21 of the class." Fed. R. Civ. Proc. 23(a)(4). The purpose of this requirement is to protect the

22 legal rights of absent class members. First, the representatives must not possess interests that

23 are antagonistic to the interests of the class. See generally Anchem Products v. Windsor, 521

24 U.S. 591, 628 (1997). Second, the representatives' counsel must be qualified, experienced,

25 and generally able to conduct the litigation.

26

The Ninth Circuit has formulated the following two-prong test for Rule 23(a)(4)'s

27 adequacy of representation requirement: (1) do the named plaintiffs and their counsel have

28

9

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 10 of 32

1 any conflicts of interest with other class members and (2) will the named plaintiffs and their

2 counsel prosecute the action vigorously on behalf of the class? See Hanlon v. Chrysler

3 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).

4

In the first prong of the test, we ask whether the named plaintiffs and their counsel

5 have any conflicts of interest with other class members. At the April 1, 2005, hearing, the

6 Court noted that the Complaint states that defendants have agreed to offer the named

7 plaintiffs enrollment in comprehensive programs but have refused to offer such enrollment

8 to those similarly situated. The Court queried whether this situation persisted or could arise

9 again between the time the parties submitted their joint motion and the time the Court grants

10 final approval of the Consent Decree, thereby creating a conflict of interest between the

11 named plaintiffs and other class members.

12

In their April 15, 2005, submission, the parties explained that the District "has

13 reviewed the situations of newly identified class members on a case-by-case basis, and, to

14 date, has offered timely reinstatement to all such identified students." April 15, 2005, Letter

15 Brief, at p.3. Moreover, the parties point out that named plaintiffs "cannot exercise any

16 leverage over the agreement that has been reached because the terms of the Consent Decree

17 have been fully negotiated." April 15, 2005, Letter Brief, at p.3. Given this additional

18 information, the Court finds that defendants' offer to the named plaintiffs (and all other

19 known plaintiffs) of enrollment in comprehensive programs does not create a conflict of

20 interest between the named plaintiffs and other class members.

21

Before the parties narrowed the definition of the class the Court was concerned that

22 part of the proposed remedy for the alleged disparate impact on African-American and Latino

23 students might create a conflict of interest between the representatives of the class and

24 students who would have qualified as class members but who were neither African-American

25 nor Latino. In response to the Court's concern, the parties amended the Consent Decree to

26 limit the plaintiff class to African-American and Latino students. In its Order Following

27 Review of April 15, 2005, Submission, filed April 21, 2005, the Court adopted this

28

10

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 11 of 32

1 amendment, thus eliminating any concern about tensions between the interests of the class

2 representatives and students who were neither African-American nor Latino.

3

At the April 1, 2005, hearing, the Court also asked whether a potential conflict of

4 interest might exist between the named plaintiffs and future class members, in that under the

5 parties' proposed Consent Decree, future class members would purportedly be precluded

6 from pursuing both equitable and monetary claims - despite not having received notice or an

7 opportunity to contest the settlement. In their April 15, 2005, submission, the parties

8 addressed this concern by suggesting that the proposed Consent Decree be amended to

9 "explicitly state that students who are unlawfully expelled/reassigned in the future will not

10 be bound by the waiver of any rights or claims, including the right to pursue damages." April

11 15, 2005, Letter Brief, at p.3. The Court adopted this suggestion in its April 21, 2005, Order.

12 Therefore, any potential conflict of interest between named plaintiffs and future class

13 members has been eliminated.

14

The Court discerns no other potential or actual conflicts of interest between named

15 plaintiffs and other class members. We also discern no conflicts between class counsel and

16 other class members.

17

We turn next to the 'vigorous prosecution' prong of the adequacy of representation

18 requirement. "Although there are no fixed standards by which 'vigor' can be assayed,

19 considerations include competency of counsel and, in the context of a settlement-only class,

20 an assessment of the rationale for not pursuing further litigation." Hanlon v. Chrysler Corp.,

21 150 F.3d 1011, 1021 (9th Cir. 1998). First, the Court has no doubt that class counsel --

22 Stanford's Youth and Education Law Clinic, Legal Services for Children, and Pillsbury

23 Winthrop LLP -- have the resources and experience necessary to fairly and adequately

24 represent the interests of the class.

25

Second, we must assess plaintiffs' rationale for not pursuing further litigation. The

26 parties' joint motion provides the following rationale: "[c]lass counsel proceeded to

27 settlement because numerous unidentified class members could continue to be excluded from

28

11

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 12 of 32

1 comprehensive school until the conclusion of this litigation. If the case were to proceed to

2 trial, the Parties and Court concluded that it would likely extend into 2006. This lengthy

3 litigation timeline, coupled with the inherent uncertainty of complex litigation, led Class

4 counsel to logically conclude that the interests of all class members, especially unidentified

5 class members, would be best served by a timely settlement of the litigation." See Joint

6 Motion, at p. 9, l. 24 - p.10, l. 2. We are persuaded that class counsel's decision to settle the

7 case reflects a good-faith and objectively sound assessment of the advantages and

8 disadvantages of further pursuing this litigation.

9

Because we find no conflicts of interest between named plaintiffs (or their counsel)

10 and other class members, and we find that named plaintiffs and their counsel have prosecuted

11 this case with sufficient vigor, we are satisfied that the adequacy of representation

12 requirement is met.

13

Having decided that the proposed class meets all of the requirements of Rule 23(a),

14 we must now ask whether it is maintainable under Rule 23(b). In addition to meeting the

15 conditions imposed by Rule 23(a), the parties seeking class certification must show that the

16 action is maintainable under Rule 23(b)(1), (b)(2), or (b)(3). Rule 23(b), "functionally

17 describes the different situations in which a class action was thought to be appropriate by the

18 draftsmen [of the 1966 revisions to the Rule]." Parties' Joint Motion, p. 10, ll. 15-17, (citing

19 Wright, Miller & Kane, Federal Practice & Procedure, § 1753 (2004).)

20

The parties seek certification of the class pursuant to Rule 23(b)(2). Rule 23(b)(2)

21 provides that, "An action may be maintained as a class action if . . .(2) the party opposing the

22 class has acted or refused to act on grounds generally applicable to the class, thereby making

23 appropriate final injunctive relief or corresponding declaratory relief with respect to the class

24 as a whole . . ." Rule 23(b)(2).

25

By allegedly failing to provide members of the proposed class with a hearing, an

26 opportunity to present evidence, or an opportunity to contest the reasons for which each was

27 being involuntarily excluded from comprehensive school, defendants are accused of having

28

12

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 13 of 32
1 "acted or refused to act on grounds generally applicable to the class." Plaintiffs have
2 abandoned their claims for damages and seek only injunctive relief. See April 15, 2005,
3 Letter Brief, at p. 2. Accordingly, the Court finds that this case is properly maintained as a
4 class action under Rule 23(b)(2).
5 3. Designation of class representative and class counsel
6 The Court hereby designates Yarman Smith, a minor, by Lagertha Smith, his guardian
7 ad litem, Juan Munoz, by Margarita Chavez his guardian ad litem, and Summer McNeil, by
8 Sonobia Augustine her guardian ad litem, as class representatives. The Court hereby
9 designates William Koski and Molly Dunn of the Stanford Law School Youth and Education
10 Law Clinic, Abigail Trillin and Gabriela Ruiz of Legal Services for Children, and William
11 Abrams and Peter Nohle of Pillsbury Winthrop, LLP as counsel for the class.
12
13 III. Approval of Parties' Proposed Notice Plan
14 The parties seek the Court's approval of their revised notice plan. Pursuant to Rule
15 23(e), before approving the settlement or compromise of a certified class, "[t]he court must
16 direct notice in a reasonable manner to all class members who would be bound by a proposed
17 settlement, voluntary dismissal, or compromise." Fed. R. Civ. Proc. 23(e)(1)(B). Although
18 Rule 23(e) affords the District Court wide discretion as to the form, content, and method of
19 distribution of the notice, notice of a class action settlement must satisfy due process
20 requirements. Mendoza v. United States, 623 F.2d 1338, 1350-51 (9th Cir. 1980) (internal
21 citations omitted) (disapproved of on other grounds). "To meet this standard, the notice
22 given must be 'reasonably calculated, under all the circumstances, to apprise interested parties
23 of the pendency of the action and afford them an opportunity to present their objections'."
24 Id. at 1351 (internal citation omitted). Notice must be given in "in a form and manner that
25 does not systematically leave an identifiable group without notice." Id. (internal citations
26 omitted).
27
28
13

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 14 of 32

1

Rule 23(e)(1)(B) and due process thus appear to require two reasonableness

2 determinations. First, the Court must determine that the parties' proposed form (and content)

3 of notice reasonably and accurately conveys to unknown class members (i) the class

4 definition, (ii) the terms of the proposed settlement, and (iii) the procedure through which

5 class members can object to the proposed settlement (including the date, time, and

6 significance of the final fairness hearing). Second, the Court must determine whether the

7 parties' proposed mechanism of notice is reasonably calculated to reach all class members.

8

First, the Court finds that the parties' proposed form of notice reasonably and

9 accurately conveys the class definition, the terms of the proposed settlement, and the

10 procedure through which class members can object to the proposed settlement.

11

The parties propose the following methods of distributing their notice:

12

! By June 13, 2005, defendants will send the Notice, via first-class mail, to each

13 student attending any and all of the District's schools (comprehensive and non-

14 comprehensive.) Five days after completing this mailing, defendants will file with the Court

15 and on opposing counsel a declaration describing the mailing effort, including the number

16 of notices that were mailed broken down by school of attendance. The declaration will be

17 signed under penalty of perjury by the Superintendent of the Berkeley Unified School

18 District.

19

! By June 6, 2005, defendants will post the Notice at its administrative offices, in

20 the main office of each of its public schools, and in other visible areas in which students and

21 parents/guardians are likely to see such posting. Defendants will ensure that the notices

22 remain posted until the day following the fairness hearing. Within five days after posting the

23 Notice, defendants will file with the Court and serve on opposing counsel a declaration

24 describing the exact areas where defendants posted the Notice, and identifying the names of

25 District personnel who accomplished the posting. The declaration will be signed under

26 penalty of perjury by the Superintendent of the Berkeley Unified School District.

27

28

14

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 15 of 32

1

! By June 13, 2005, the Superintendent of the School District will contact the

2 Alameda County Probation Department, Alameda County Department of Social Services,

3 Alameda County Juvenile Court, Alameda County Family Court, the Berkeley Organization

4 of Churches and Berkeley Youth Alternatives and request that each organization post the

5 Notice in a visible place likely to come to the attention of class members and their families.

6 The Superintendent will request that the notices remain posted until the day following the

7 fairness hearing.

8

! By June 6, 2005, defendants will publish the notice and a complete copy of the

9 proposed Consent Decree on their website. Defendants will ensure that the notice remains

10 published on the District website until the day following the fairness hearing. Within five

11 days after the above-described publication, defendants will file with the Court and serve on

12 opposing counsel a declaration that the Notice and a complete copy of the proposed Consent

13 Decree have been published on the District's website. The declaration will be signed under

14 penalty of perjury by the Superintendent of the Berkeley Unified School District.

15

! By June 6, 2005, plaintiffs' counsel5 will publish the notice and a complete copy

16 of the proposed Consent Decree on their websites. Plaintiffs' counsel will ensure that the

17 notice remains published on their website until the day following the fairness hearing.

18

! By June 13, 2005, defendants will publish notice of the proposed Consent Decree

19 in summary form in the Berkeley High School Jacket, the school's student newspaper.

20 Within five days after such publication, defendants will file with the Court and serve on

21 opposing counsel a declaration that the Notice was published in the Berkeley High School

22 Jacket. The declaration will be signed under penalty of perjury by the Superintendent of the

23 Berkeley Unified School District.

24

25

26

5 Plaintiffs are represented by Legal Services for Children, Stanford Law School's Youth and

27 Education Law Clinic and Pillsbury Winthrop LLP. The Court expects each of these entities to post the

28 notice and proposed Consent Decree on its website.

15

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 16 of 32

1

The Court finds that the methods of notice suggested by the parties are reasonably

2 calculated to reach all class members. Accordingly, the parties must mail, post, and publish

3 the Notice as described above.

4

In summary, the Court finds both the form of notice and methods of notice proposed

5 by the parties to be reasonable and approves them in full.

6

7 IV. Objections to Consent Decree and Fairness Hearing

8

1. Any class member wishing to object to the terms of the proposed Consent Decree

9 must do so in writing, by no later than July 11, 2005. The written objection must explain,

10 fully, the substance of the class member's objection.

11

2. The parties are permitted, but not required, to file replies (separately or jointly)

12 to any objections received pursuant to the above paragraph. Such replies must be filed by

13 no later than July 18, 2005.

14

3. The Court will conduct a final fairness hearing on Wednesday, July 27, 2005,

15 at 1:00 p.m., in Courtroom 4, 3rd Floor, United States Courthouse, 1301 Clay Street,

16 Oakland, California, to consider whether the settlement should be given final approval.

17

4. At the hearing, class members who have filed written objections will be

18 permitted to speak in support of their objections. Counsel for the parties must be prepared

19 to address the substance of these objections.

20

21 V. 22

Preliminary Approval of Consent Decree In broad strokes6, the revised proposed Consent Decree provides as follows:

23

1. Defendants will implement a comprehensive outreach plan which includes oral

24 communications, written letters, and the posting of notices. These communications, oral and

25 written, will acknowledge and describe defendants' obligation to provide sufficient hearing

26

27

6 The full revised proposed Consent Decree is attached as Exhibit A to the parties' May 16, 2005,

28 submission.

16

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 17 of 32

1 and notice prior to excluding or reassigning any student from comprehensive school for an

2 alleged violation of the student conduct rules, and will inform Class members of their right

3 to meet with a District representative to determine their eligibility to be reinstated in

4 comprehensive school, receive compensatory educational services, and earn remedial credits.

5

2. Defendants will promptly schedule and convene a meeting with each student (and

6 his or her parent or guardian) who submits a 'Compensatory Education Claim'. At the

7 meeting, defendants will decide whether the student qualifies as a class member. A District

8 determination that the student does not qualify as a class member may be appealed to a

9 designated Neutral.

10

3. Immediately upon determination that a student is a class member, defendants will

11 offer the student reinstatement to an age- and grade-level appropriate comprehensive

12 educational program within the District, unless reinstatement is not appropriate because of

13 the student's age or residence.

14

4. Shortly after a determination that a student is a class member, and that the student's

15 suspension or expulsion was unlawful under the California Education Code, defendants will

16 also expunge or modify the class member's educational records to remove any language

17 stating that the student had been properly expelled, and to indicate that any exclusion from

18 comprehensive school for more than five consecutive school days or more than twenty school

19 days in any school year was unlawful.

20

5. The Board of Education will revise defendants' suspension and expulsion policies,

21 devise a student suspension/expulsion monitoring system, and conduct comprehensive

22 training with staff members and administrators on these new policies.

23

6. Defendants will not authorize or participate in any practice that "involuntarily"

24 excludes or reassigns students from comprehensive school without providing appropriate

25 notice and an appropriate hearing.

26

27

28

17

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 18 of 32

1

7. Shortly after the determination that a student is a class member, defendants will

2 develop, with the student, an individualized plan for the student to earn appropriate credits

3 towards graduation.

4

8. Defendants will formulate a comprehensive plan, subject to plaintiffs' approval,

5 which aims to reduce racial/ethnic disproportionality in student discipline "through such

6 endeavors as staff and faculty training in cultural diversity, behavioral intervention strategies

7 that are alternatives to suspension and expulsion, and ensuring that students are appropriately

8 referred and provided with all requisite procedural protections before transferring them from

9 comprehensive to non-comprehensive school programs."

10

9. The parties will put into place a system of District reporting and monitoring

11 defendants' compliance with the terms of the settlement. Monitoring will include formation

12 of a Students' Rights M onitoring Committee.

13

10. The Court will retain jurisdiction over the case to ensure implementation of the

14 Consent Decree.

15

11. Defendants will pay $50,000 in attorneys fees to plaintiffs' counsel.7

16 ///

17

Federal Rule of Civil Procedure 23(e) requires us to determine whether the proposed

18 Consent Decree is fundamentally fair, adequate, and reasonable. Fed. R. Civ. Proc. 23(e).

19 "It is the settlement taken as a whole, rather than the individual component parts, that must

20 be examined for overall fairness." Hanlon v. Chrysler Corporation, 150 F.3d 1011, 1026 (9th

21 Cir. 1998).

22

When assessing a settlement proposal, w e are required to balance a number of factors,

23 including (but not necessarily limited to) the strength of the plaintiffs' case; the risk, expense,

24 complexity and likely duration of further litigation; the risk of maintaining class action status

25 throughout the trial; the amount offered in settlement; the extent of discovery completed and

26

27

7 The attorneys' fees portion of the settlement is discussed in more detail in section VI. of this

28 Order.

18

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 19 of 32

1 the stage of the proceedings; the experience and views of counsel; and the reaction of the 2 class members to the proposed settlement8." Id. The "relative degree of importance to be

3 attached to any particular factor will depend upon and be dictated by the nature of the

4 claim(s) advanced, the type(s) of relief sought, and the unique facts and circumstances

5 presented by each individual case." San Francisco NAACP v. San Francisco Unified School

6 District, 59 F.Supp.2d 1021, 1028 (N.D. Cal. 1999), quoting Officers for Justice v. Civil

7 Service Comm'n of City and County of San Francisco, et al., 688 F.2d 615, 625 (9th Cir.

8 1982).

9

Given the specific facts and circumstances of this case, one of the most important

10 factors in our assessment of the proposed Consent Decree must be the "risk, expense,

11 complexity and likely duration of further litigation". The parties suggest that "[t]imely

12 resolution of this case is perhaps the most important consideration in evaluating the 'fair,

13 adequate, and reasonable' nature of the proposed Consent Decree." Parties' Joint Motion, p.

14 21, ll. 5-6. The Court agrees. If the case were litigated through trial, another school year

15 would pass before class members are given the comprehensive educational opportunities

16 made available to them in the Consent Decree. In the life of a teenager, one year is a

17 substantial amount of time - and could well be the difference between graduating and not

18 graduating from high school.

19

In addition, for at least another year, defendants would not be bound by the provision

20 in the proposed Consent Decree precluding them from authorizing or participating in any

21 practice that excludes or involuntarily reassigns students from comprehensive school for

22 alleged violations of the District's student conduct rules without providing 'appropriate notice

23 and an appropriate hearing.' Without the Consent Decree, defendants could continue, for a

24

25 8 At this stage, the reaction of class members other than the lead plaintiffs (who presumably are
26 in agreement with the provisions of the proposed Consent Decree) is unknown. The Court will be better
27 positioned to reliably analyze this factor after reviewing objections (if any) to the proposed Consent
28 Decree and conducting the final fairness hearing.

19

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 20 of 32

1 substantial period, practices that allegedly violate students' fundamental rights and

2 wrongfully deprive them of much needed education.

3

In addition, the risk to plaintiffs of pursuing the litigation rather than settling the case

4 at this juncture is considerable.9 The proposed Consent Decree provides an impressive array

5 of equitable relief - offering to class members real and otherwise unavailable opportunities

6 to get 'back on track' with their educational pursuits - as well as setting in motion a process

7 that could reduce the allegedly disproportionate impact on African-American and Latino

8 students of some disciplinary measures. It is not clear whether plaintiffs would be able to

9 match the equitable relief they have achieved through negotiation by taking this case to trial.

10

We also note that the expense of further litigation would very likely be quite high. In

11 the joint motion, plaintiffs assert that "in addition to extensive document discovery

12 concerning District disciplinary records, plaintiffs intended to engage in substantial motion

13 practice, including motions for Class Certification and Summary Judgment." Parties' Joint

14 Motion, p. 22, ll. 2-4. The parties believe that the trial would have lasted twelve days, and

15 would have included testimony from at least sixty-three witnesses and three experts. Parties'

16 Joint Motion, p.22, ll. 4-6 (citing Parties' Joint Case Management Conference Statement,

17 filed December 13, 2004, Defs.' Initial Disclosures ¶ 1; Pls.' Initial Disclosures at 3-14.) As

18 the parties point out, the money expended on these efforts on behalf of both the defendants

19

20

21

22

9 Analysis of the 'risk of further litigation' factor appears to overlap largely, it not completely,

with analysis of the 'strength of plaintiffs' case' factor. Although plaintiffs contend that they have a

23 strong case, they concede that there is "still a large risk inherent in going to trial in any complex

24 litigation where issues and evidence are hotly contested." Parties' Joint Motion, p. 22, ll. 11-12. In

25 particular, plaintiffs point to defendants' denial of several critical aspects of plaintiffs' claim -- including plaintiffs' assertion that defendants' policies and procedures are discriminatory. Parties' Joint Motion,
26 p. 22, ll. 12-14. Given the complexity - both legal and factual - of plaintiffs' case, the Court does not

27 disagree with the parties' statement that "trial would be a time-consuming, expensive, and risky

28 proposition for all involved." Parties' Joint Motion, p. 22., ll. 18-19.

20

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 21 of 32

1 and the Court10 would have been borne by the taxpayers. The expense of such additional

2 litigation, and the fact that much of it would have been borne by the taxpayers, clearly weighs

3 in favor of approving the settlement.

4

For all of these reasons, we find that the 'risk, expense, complexity, and likely duration

5 of further litigation' weighs heavily in favor of approval of the parties' proposed Consent

6 Decree.

7

Another factor courts are instructed to take into account when reviewing the proposed

8 settlement of a class action is the "amount" of the settlement. Assessing this component of

9 a proposed agreement would be relatively straightforward (in theory, at least) if a significant

10 element of a settlement package was monetary compensation for harms suffered by members

11 of the class. The proposed settlement in the case at bar, however, includes no direct

12 monetary compensation for members of the class. That circumstance is attributable, in part,

13 to the fact that it would be extremely difficult to measure or assess the dollar value of the

14 harms suffered by members of the class as a result of the kinds of alleged wrongs that are

15 attributed to defendants.

16

The absence of direct monetary compensation from the settlement agreement is also

17 a reflection of the class representatives' value priorities. At the top of those priorities is a

18 recognition that quality substantive education, coupled with full re-integration into the

19 educational community from which they were removed, will be of much greater long-term

20 value to members of the class than any cash that they might reasonably expect to recover in

21 this litigation. In the Court's judgment, the class members have made a rational and wise

22 assessment of the relative value of the kinds of relief that might be secured here. The

23 comprehensive equitable relief negotiated by counsel for plaintiffs is quite impressive.

24 Eligible plaintiffs will be reinstated to a comprehensive school, have their educational

25

26

10 And if, following trial or substantial motion activity in which an attorneys' fees award was

27 appropriate, the Court awarded plaintiffs additional attorneys fees - the taxpayers also would bear

28 plaintiffs' additional litigation costs.

21

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 22 of 32

1 records expunged/ modified, and will receive compensatory educational services and

2 academic credit repair. In addition, in the future, defendants will provide appropriate notice

3 and a hearing to students who have been identified as potential expulsion or reassignment

4 candidates. Finally, defendants will take steps to reduce the alleged racial disproportionality

5 in student discipline. Taking all pertinent considerations into account, the Court finds that

6 the equitable terms of the proposed settlement will deliver value to the members of the class

7 that is significant and that is appropriate in "amount" (i.e., commensurate with the harms

8 suffered as a result of the challenged conduct).

9

The experience and qualifications of counsel on both sides of this litigation are

10 considerable. Plaintiffs are represented by Legal Services for Children, Stanford Law

11 School's Youth and Education Law C linic, and the law firm of Pillsbury Winthrop LLP.

12 These organizations have good reputations in the legal community and are experienced in

13 constitutional and education law, complex and class action litigation, complex educational

14 reform, and youth advocacy. Defendants are represented by Atkinson, Andelson, Loya,

15 Ruud & Romo, a law firm that has specialized in counseling and representing educational

16 and other public agencies for over twenty-five years. Given counsel's considerable

17 experience and qualifications, we give substantial weight to their views that the proposed 18 settlement is 'fair, reasonable, and adequate.'11

19

The final factor we consider is the extent of the discovery completed and the stage of

20 the proceedings. In their joint motion, the parties state that, "[a]lthough [they] had not yet

21 commenced formal discovery at the time they agreed to the terms of the proposed Consent

22

23

11 It also is noteworthy that there is nothing about the proposed attorneys' fees that would cause

24 us to question the independence and integrity of the views on this subject expressed by counsel for

25 plaintiffs. Such questions might arise if the proposed compensation for plaintiffs' counsel were quite generous or out-of-proportion with the value the settlement delivered to members of the class. In the
26 case at bar, however, the proposed attorneys' fees represent only a fraction of the market value of the

27 hours spent and services rendered by plaintiffs' counsel. Nor is the court aware of any basis for inferring

28 that the size of the fee award exceeds the value of the relief that members of the class will receive.

22

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 23 of 32

1 Decree, they had a strong understanding of the strengths and weaknesses of each other's

2 cases gained through months of informal discovery and negotiation, Public Records Act

3 requests propounded to the District, and initial disclosures." Parties' Joint Motion, p. 23, ll.

4 4-7.

5

It also is significant that the notification procedures suggested by the parties (and

6 approved by the Court) are well-calculated to alert interested members of the community

7 (including, primarily, potential members of the class) to the existence of the lawsuit, the

8 nature of the allegations and claims, and the proposed terms of relief. It is reasonable to

9 assume that these notification procedures would cause to surface any persons who might

10 have been harmed in ways not fully understood by the class representatives or their lawyers --

11 or persons for whom the proposed relief would be off target or clearly insufficient. If any

12 such persons present objections to the terms of the proposed decree the Court (and the

13 parties) will be well-positioned to make any appropriate adjustments in the final version of

14 the order. Thus, the comprehensiveness of the notice distribution mechanisms and the

15 opportunities they create for acquiring additional information reduce the need for formal

16 discovery.

17

Moreover, formal discovery is not a prerequisite to the approval of a class action

18 settlement. In re Mego Financial Corp. Securities Litigation v. Nadler, 213 F.3d 454, 459

19 (9th Cir. 2000). The law requires the parties to have "sufficient information to make an

20 informed decision about settlement," but does not dictate how that information is to be

21 acquired. Id. Given the number of informal discovery vehicles utilized by the parties, as

22 well as the notice that will be provided to class members prior to the final fairness hearing,

23 and the nature of the negotiated relief, we find that the parties had sufficient information

24 with which to make an informed decision regarding settlement.

25

At this juncture, it appears that all of the factors weigh in favor12 of finding the

26 proposed Consent Decree 'fair, reasonable, and adequate', and the most pertinent factors (the

27

28

12 The 'extent of discovery completed and stage of proceedings' factor is at worst neutral.

23

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 24 of 32

1 'risk, expense, complexity and likely duration of further litigation', and the 'amount of the

2 settlement') weigh heavily in favor of such a finding. Accordingly, the Court hereby makes 3 a conditional13 finding that the proposed Consent Decree is 'fair, reasonable, and adequate'.

4

In the case of Hanlon v. Chrysler Corporation, 150 F.3d 1011 (9th Cir. 1998), the

5 Ninth Circuit adopted the rule of several sister circuits that settlement approval that takes

6 place prior to formal class certification requires a "higher standard of fairness." Hanlon at

7 1026. The Ninth Circuit adopted this heightened standard primarily to protect the interests 8 of absent class members and to protect against the dangers of collusion14 between class

9 counsel and defendant.

10

Giving these concerns the full consideration that they deserve, the Court concludes

11 that the proposed Consent Decree, as modified, treats absent class members and the named

12 plaintiffs equally well. The Consent Decree does not provide for the payment of damages

13 only to named plaintiffs. No settlement fund is created that plaintiffs could deplete.

14 Furthermore, the proposed Consent Decree does not limit the number of plaintiffs who may

15 qualify to receive comprehensive services or reinstatement, nor does it limit the value of the

16 comprehensive services any individual plaintiff may receive. Finally, the proposed Consent

17 Decree provides for a (i) comprehensive outreach plan, (ii) monitoring of defendants'

18 compliance by a committee, a majority of whose members will be selected by plaintiffs, and

19 (iii) the retention of jurisdiction by this Court over the implementation of the decree --

20 considerations which the Hanlon opinion indicates weigh in favor of a finding that the

21 heightened fairness standard has been met.

22

23

24

25

13 The Court will not make a final assessment of the fairness, adequacy and reasonableness of

26 the proposed Consent Decree unless and until it has carefully considered any and all objections by class

27 members.

28

14 We discuss the dangers of collusion below.

24

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 25 of 32

1

Consideration of the above factors, in particular the equal treatment of absent class

2 members, leads us to the preliminary15 conclusion that the heightened standard of fairness

3 governing court approval of pre-certification settlement agreements is met in this case.

4

In addition to assessing the fairness, adequacy and reasonableness of the proposed

5 Consent Decree under a heightened standard of fairness, we must also "reach a reasoned

6 judgment that the agreement is not the product of fraud or overreaching by, or collusion

7 between, the negotiating parties." Hanlon, 150 F.3d at 1027.

8

In their joint motion, the parties describe nine months of arms-length negotiation,

9 culminating in a final mediation in the presence of the Honorable Read Ambler, retired judge 10 of the Superior Court of Santa Clara County.16 There is no evidence in the record that

11 suggests that the parties' settlement negotiations were not arms-length, or that the settlement

12 was reached in an a suspiciously short period. Accordingly, the Court is satisfied that the

13 proposed Consent Decree "is not the product of fraud or overreaching by, or collusion

14 between, the negotiating parties." Id.

15

In light of our view that the proposed Consent Decree is fundamentally 'fair, adequate,

16 and reasonable', the Court hereby APPROVES it subject to any objections that may be raised

17 by class members in the manner specified above.

18

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25

26

15 Again, the Court will not reach a final conclusion until it has considered all class members'

27 objections to the proposed Consent Decree.

28

16 Berkeley Unified School District is in Alameda County.

25

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 26 of 32

1 VI. Conditional Approval of the Attorneys' Fees Portion of the Settlement

2

Plaintiffs17 ask the Court to conditionally18 approve a negotiated fee award of

3 $50,000.19 "Under certain circumstances, the court may enter an order conditionally

4 approving attorneys' fees to the attorneys for the class representative. When a common fund

5 has been created for the class, counsel for the class are entitled to fees out of the common

6 fund. Alternatively, class suits brought under a statute authorizing fees payable by the

7 nonprevailing parties will entitle counsel to compensation." Newberg on Class Actions, Vol.

8 4, p. 62. (citing Aleyska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) for

9 proposition that class suits brought under a statute authorizing fees payable by the

10 nonprevailing party entitle the prevailing party's counsel to compensation).)

11

Plaintiffs bring their class action lawsuit under 42 U.S.C. § 1983 and 28 U.S.C. §§

12 2201 and 2202. See Civil Rights Complaint, e-filed August 13, 2004. The Civil Rights

13 Attorneys' Fees Awards Act of 1976 provides that a prevailing party may be entitled to

14 reasonable attorneys' fees for actions brought pursuant to 42 U.S.C. § 1983. Because the

15 Consent Decree would impose substantial, legally enforceable burdens on defendants that

16 they would otherwise not be required to bear, it is clear that the prosecution of this lawsuit 17 has resulted in a real change in the legal relationships between the parties.20 It follows that

18

19

17 For purposes of the instant motion, defendants do not dispute the reasonableness of the fees

provision of the Consent Decree. The Court acknowledges that, if the proposed Consent Decree is not

20 ultimately approved by the Court, no party would be bound by the $50,000 figure.

21

18 The condition being that, after all objections from class members are considered and the final

22 fairness hearing is conducted, the Court approves the parties' revised proposed Consent Decree (or some

23 closely related version thereof).

24

19 We construe plaintiffs' request as a motion for an award of attorneys fees under Rule 23(h)(1).

25

20 The Supreme Court has held that a plaintiff who has secured a court-ordered consent decree

is considered a prevailing party. Buckhannon Board v. West Virginia Dept. of Health and Human

26 Resources, 532 U.S. 598, 604 (2001). "Although a consent decree does not always include an admission

27 of liability by the defendant, it nonetheless is a court-ordered, 'chang[e] [in] the legal relationship

28 between [the plaintiff] and the defendant." Id. (internal citations omitted).

26

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 27 of 32

1 plaintiffs' counsel are entitled to compensation upon approval by this Court of the proposed

2 Consent Decree.

3

Having decided that plaintiffs' counsel are (conditionally) entitled to a fee award, we

4 must determine whether the amount requested is fair and reasonable in the circumstances of

5 this case. "Attorneys' fees provisions included in proposed class action settlement

6 agreements are, like every other aspect of such agreements, subject to the determination

7 whether the settlement is 'fundamentally fair, adequate, and reasonable'." Staton v. Boeing

8 Co., 327 F.3d 938, 963 (9th Cir. 2003). "To avoid abdicating its responsibility to review the

9 agreement for the protection of the class, a district court must carefully assess the

10 reasonableness of a fee amount spelled out in a class action settlement agreement." Id.

11 (internal citations omitted).

12

We review the reasonableness of the attorneys' fees portion of the settlement under

13 the 'lodestar calculation method.' Id. at 966, Ferland v. Conrad Credit Corp., 244 F.3d 1145,

14 1149, n.4 (9th Cir. 2001). "The 'lodestar' is calculated by multiplying the number of hours

15 the prevailing party reasonably expended on the litigation by a reasonable hourly rate."

16 Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (opinion amended on denial

17 of rehearing on other grounds, Morales v. City of San Rafael, 108 F.3d 981 (9th Cir. 1997).)

18 "Although in most cases, the lodestar figure is presumptively a reasonable fee award, the

19 district court may, if circumstances warrant, adjust the lodestar to account for other factors

20 which are not subsumed within it." Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149, 21 fn. 4 (9th Cir. 2001).21 Because the lodestar figure is presumptively reasonable, adjustments

22

23

21 Before the lodestar method was developed, the Ninth Circuit applied the twelve-factor test

24 adopted in Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975). The twelve Kerr factors

25 included: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the
26 attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent,

27 (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results

28 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 'undesirability' of the case,

27

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 28 of 32

1 should be made only in rare cases. Pennsylvania v. Delaware Valley Citizens' Council for

2 Clean Air, 478 U.S. 546, 565 (1986).

3

In support of their petition for attorneys' fees, plaintiffs have submitted the following

4 declarations:

5

! Declaration of William S. Koski In Support of Motion for Preliminary Approval

of Proposed Consent Decree, filed March 14, 2005 ("Koski Dec.");

6

! Declaration of Peter H. Nohle In Support of Joint Motion For Preliminary Approval

7 of Proposed Consent Decree And Provisional Certification of Class for Settlement Purposes,

filed March 14, 2005 ("Nohle Dec."); and

8

! Declaration of John Toole, filed March 14, 2005 ("Toole Dec.").

9

Six attorneys from three different legal organizations performed substantial work on

10

plaintiffs' behalf. William Koski's declaration details the legal background, experience, and

11 'billing rate'22 of all six attorneys,23 Koski Dec., ¶¶ 1-6, and describes the division of labor

12

between the three legal organizations, Koski Dec., ¶¶ 7-9. Mr. Koski's declaration also

13

contains a 'lodestar' type-calculation for each legal organization, multiplying the billing rates

14

15

16 (11) the nature and length of the professional relationship with the client, and (12) awards in similar
17 cases. Id. The Ninth Circuit has concluded that at least five of the Kerr factors have been "subsumed in the
18 initial lodestar calculation." Morales v. City of San Rafael, 96 F.3d 359, 363-64 (9th Cir. 1996).
19

20

22 We recognize that Stanford University's Youth and Education Law Clinic and Legal Services

21 for Children do not actually bill their clients. As to these two non-profit organizations, we use the term 'billing rate' as shorthand for the rates charged in comparable markets by private attorneys with
22 comparable backgrounds and experience.

23

23 Peter Nohle's declaration also sets forth the legal background, experience, and billing rate of

24 the PillsburyWinthrop attorneys -- William Abrams and himself, and describes the professional services

25 which they have rendered in this litigation. Mr. Nohle's declaration also states that, "[e]ach attorney from Pillsbury Winthrop LLP who worked on this matter was required to account for the work he performed
26 on a contemporaneous basis. Work performed by an attorney must be recorded by identification of the

27 date on which the work was done, the amount of time spent on the work, and a description of what work

28 was done." Nohle Dec., ¶ 7.

28

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 29 of 32

1 and the hours spent on the litigation. The total of the three lodestar calculations is

2 $141,580.18. Koski Dec., ¶ 10. Finally, Mr. Koski's declaration states that (i) plaintiffs'

3 counsel have agreed to reduce their total bill amount from $141,580.18 to $50,000; (ii)

4 Stanford University's Youth and Education Law Clinic has not sought any fees for the

5 substantive and significant work of its law students; (iii) plaintiffs' counsel has not sought

6 fees in connection with finalizing the Consent Decree, preparing the joint motion for

7 provisional certification of a settlement class and preliminary approval of the proposed

8 Consent Decree, or for preparing further written submissions in response to this Court's 9 questions and concerns regarding the parties' joint motion,24; and (iv) Pillsbury Winthrop

10 LLC has agreed to donate its portion of the fee award to its non-profit co-counsel. Koski

11 Dec., ¶ 10.

12

Plaintiffs also have submitted a declaration from John O' Toole, an attorney

13 specializing in "federal court litigation brought on behalf of indigent clients, particularly

14 children and adolescents." O' Toole Dec., ¶ 3. Most of Mr. O' Toole's experience has been

15 in class action litigation. Id.

16

Mr. O'Toole is the Director of the National Center for Youth Law ("NCYL"), a

17 position he has held since 1981. O' Toole Dec., ¶¶ 5-7. During Mr. O'Toole's tenure as

18 director of the NCYL, the Center has recovered more than seven million dollars in attorneys'

19 fees and costs. O' Toole Dec., ¶ 7. During this period, "[Mr. O' Toole has] overseen all of

20 NCYL's attorneys' fees litigation and [has] acquired expertise in the law governing the

21 recovery of attorneys' fees." Id.

22

23

24

24 Given the pertinent sequence of events, the parties' joint motion does not list, 'preparing further

25 written submissions in response to this Court's questions and concerns regarding the parties' joint motion' as one of the items as to which plaintiffs' counsel will not seek fees. We assume, however, that (if the
26 Court ultimately approves the Consent Decree) plaintiffs will not seek additional fees in connection with

27 preparing these submissions -- even though counsel obviously have devoted considerable time to this

28 work.

29

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 30 of 32

1

Mr. O'Toole has familiarized himself with the instant litigation through conversations

2 with plaintiffs' counsel and through reading the pleadings and other documents associated

3 with the case. O' Toole Dec., ¶ 8. In Mr. O'Toole's opinion, given the complexity of the

4 case, the total amount of time spent by plaintiffs' counsel is reasonable -- indeed, even

5 modest. O' Toole Dec., ¶ 11. He also opines that the fee structure applied to those hours is

6 reasonable. O'Toole Dec., ¶¶ 13 - 19. Finally, he states his belief that, "the substantially

7 discounted fee request by Plaintiffs' Counsel of $50,000, just over one-third of the actual fee

8 total, is extremely reasonable in light of the time and effort expended in pursuit of this

9 litigation, and in light of the experience of the attorneys involved and the high quality of

10 representation afforded to Plaintiffs in this matter." O' Toole Dec., ¶ 19.

11

Based on our review of the legal background, experience, and 'billing rate' of the six

12 plaintiff-side attorneys who performed substantial work in this case, we agree with Mr.

13 O'Toole's assessment that each of those attorneys' rates are consistent with the market rate

14 of attorneys in this area with comparable experience. Accordingly, we find their quoted

15 'hourly rates' reasonable.

16

We must next assess the reasonableness of the number of hours expended by plaintiffs'

17 attorneys on this litigation.

18

Attorneys from Stanford University's Youth and Education Law Clinic rendered

19 125.83 hours of professional service through December 12, 2004. This service included:

20

legal research on due process requirements for school discipline, various 21
federal state and race discrimination standards, and class action guidelines;

22

preparation of initial disclosures materials; preparation of most of the major

documents produced in this matter, including the original complaint, the

23

Consent Decree, the newsletter to clients keeping them informed of the

24

progress of the litigation, the Joint Case Management Conference Statement

and ADR certification, and the Mediation Position Statement; individual client

25

representation of several class members; numerous conferences and meetings

26

with individual clients and with the larger group of identified class members;

numerous meetings with co-counsel; extensive correspondence with

27

Defendants' counsel; exhaustive reviews of documents and records; case

28

30

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 31 of 32

1

management conferences with the court, and preparation time in advance of

and review time following all of the aforementioned activities. 2

3 Koski Dec., ¶ 8.

4

Attorneys from Legal Services for Children rendered 175.54 hours of professional

5 service through December 12, 2004. The work of Legal Services for Children, "focused on

6 the investigation of the claims, counseling, and individual representation of Plaintiffs." Their

7 professional services included:

8

extensive correspondence and case strategy meetings with co-counsel;

numerous conferences and meetings with individual clients and with the larger

9

group of identified class members; extensive document and record reviews;

10

individual representation on behalf of class members in matters related to their

wrongful exclusion from school; extensive correspondence with Defendants'

11

counsel; participation in the preparation of a demand letter, the original

12

complaint, several settlement proposals, the Consent Decree, and numerous

other documents and materials prepared in the course of settlement

13

negotiations; case management conferences with the court.

14 Koski Dec., ¶ 7.

15 Attorneys from Pillsbury Winthrop LLP rendered 137.5 hours of professional service

16 as of January 31, 2005. Professional services rendered by Pillsbury Winthrop LLP included:

17 research, evaluation of strategy, and strategy analysis of case; correspondence

18

and case strategy meetings with co-counsel, conferences and meetings with

19

individual clients and with the larger group of identified class members;

document and record reviews; participation in correspondence [sic] with

20

Defendants' counsel; participation in the preparation of a demand letter, the

original complaint, several settlement proposals, the Consent Decree, and 21
numerous other documents and materials prepared in the course of settlement

22

negotiations; preparation of case management statement submitted to the

Court; and preparation time in advance of and review time following all of the 23
aforementioned activities.

24 Koski Dec., ¶ 9.

25

Because plaintiffs' counsels' declaration does not specify how much time was spent

26 on each task performed, it is difficult for us to know whether all of the 438.87 (125.83 +

27 175.54 + 137.5) hours were reasonably expended. However, as mentioned above, plaintiffs'

28

31

Case 4:04-cv-03306-WDB Document 26 Filed 05/17/2005 Page 32 of 32

1 counsel have agreed to a substantially reduced fee of $50,000. Given the information that

2 was provided by plaintiffs' counsel, Mr. O' Toole's 'expert' assessment, and the substantial

3 complexity of this case, we have no doubt that the number of hours for which plaintiffs now

4 seek fees (roughly one third of the hours spent before preparation of the joint motion) was

5 reasonably expended.

6

Because both the hourly rate and the hours expended appear reasonable, we

7 (conditionally) find the negotiated fee award reasonable under the 'lodestar calculation

8 method.' We have also considered whether the circumstances of this litigation warrant

9 adjusting the lodestar figure to account for the Kerr factors not subsumed within the lodestar

10 calculation. Ferland v. Conrad Credit Corp, 244 F.3d 1145, 1149, fn. 4 (9th Cir. 2001). We

11 conclude that the lodestar figure need not be adjusted.

12

Accordingly, we conditionally grant plaintiffs' petition for approval of the attorneys'

13 fees portion of the settlement.

14 IT IS SO ORDERED.
15 Dated: May 17, 2005 16
17

/s/ Wayne D. Brazil WAYNE D. BRAZIL United States Magistrate Judge

18 Copies to: Parties, WDB, stats.
19

20

21

22

23

24

25

26

27

28

32

 
 Case 4:04-cv-03306-WDB Document 35 Filed 08/17/2005 Page 1 of 4 [All counsel for both parties listed on last page]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

YARMAN SMITH, a Minor, by LAGERTHA SMITH, his guardian ad litem, et al.,
Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE BERKELEY UNIFIED SCHOOL DISTRICT, et al.,
Defendants.

Case No.: C 04-3306 WDB
STIPULATED JUDGMENT AND ORDER CERTIFYING PLAINTIFF CLASS AND DESIGNATING CLASS REPRESENTATIVES AND CLASS COUNSEL

Plaintiffs, Yarman Smith, et al. (collectively, “Plaintiffs”) and Defendants the Board of Education of the Berkeley Unified School District (the “District”); Gerald Herrick, Director of the Office of Student Services; Michele Lawrence, Superintendent; John T. Selawsky, President of Board of Education; Nancy Riddle, Vice President of The Board of Education; Joaquin J. Rivera, Terry S. Doran, and Shirley Issel, Directors of the Board of Education (collectively, “Defendants”) stipulate to the following terms of judgment and request that this Court adopt this Stipulated Judgment and the attached Consent Decree as an Order of the Court. 1. Class Certification. Pursuant to Fed. R. Civ. Proc. 23(c)(3), Civil Action No. C 04-3306, styled as Smith v. Board of Education of the Berkeley Unified School District, shall be maintained as a class action under Fed. R. Civ. Proc. 23(b)(2) on behalf of the following class of plaintiffs:

STIPULATED JUDGMENT AND ORDER Case No. C 04-3306 WDB - 1 -

Case 4:04-cv-03306-WDB Document 35 Filed 08/17/2005 Page 2 of 4

“All African Americans and Latinos self-identified as such in official records who have been students in the Berkeley Unified School District and who have been involuntarily excluded from comprehensive school or involuntarily reassigned from comprehensive school programs to non-comprehensive alternative programs for alleged violations of the District’s student conduct rules without having received appropriate due process of law,” with respect to all causes of action outlined in the Complaint.
2. Class Representatives; Class Counsel. Yarman Smith, a minor, by Lagertha Smith, his
guardian ad litem, Juan Muñoz, by Margarita Chavez his guardian ad litem, and Summer
McNeil, by Sonobia Augustine her guardian ad litem are designated as class representatives.
William Koski and Molly Dunn of the Stanford Law School Youth and Education Law Clinic,
Abigail Trillin and Gabriela Ruiz of Legal Services for Children, and William Abrams of
Pillsbury Winthrop, LLP are designated as counsel for the class.
IT IS SO STIPULATED:

Dated: August 15, 2005

PILLSBURY WINTHROP, LLP Willam F. Abrams (State Bar No. 88805) 2475 Hanover Street Palo Alto, CA 94304-1114 Telephone: (650) 233-4500
LEGAL SERVICES FOR CHILDREN Abigail Trillin (State Bar No. 179052) Gabriela Ruiz (State Bar No. 227110) 1254 Market Street, 3rd Floor San Francisco, CA 94102 Telephone: (415) 863-3762
YOUTH & EDUCATION LAW PROJECT William S. Koski (State Bar No. 166061) Molly L. Dunn (State Bar No. 217914) 559 Nathan Abbott Way Stanford, CA 94305-8610 Telephone: (650) 724-3718
Attorneys for Plaintiffs

By

/s/

William S. Koski

Dated: August 15, 2005

Paul M. Loya (State Bar No. 57652) Marleen L. Sacks (State Bar No. 161388)
STIPULATED JUDGMENT AND ORDER Case No. C 04-3306 WDB - 2 -

Case 4:04-cv-03306-WDB Document 35 Filed 08/17/2005 Page 3 of 4

ATKINSON, ANDELSON, LOYA, RUDD & ROMO
A Professional Corporation 5776 Stoneridge Mall Road, Suite 200 Pleasanton, CA 94588 Telephone: (925) 227-9200
Attorneys for Defendants

By

/s/

Marleen L. Sacks

I attest under penalty of perjury that the original version of this document is signed by Marleen L. Sacks and William S. Koski and that I have permission to e-file it.

Dated: August 16, 2005

By

/s/

William F. Abrams

STIPULATED JUDGMENT AND ORDER Case No. C 04-3306 WDB - 3 -

Case 4:04-cv-03306-WDB Document 35 Filed 08/17/2005 Page 4 of 4

Having read and considered the Joint Motion for Preliminary Approval of the Proposed Consent Decree and supporting papers, including the Proposed Consent Decree and the Proposed Notice to Class and Notice Plan, the Stipulated Judgment, and other pertinent documents filed in this action, and having considered the arguments of the parties, the Court orders that the foregoing Stipulated Judgment is an order of this Court.
The proposed Consent Decree is hereby approved and adopted as an Order of this Court. The Court will retain jurisdiction over this matter to enforce the terms of the Consent Decree.

Dated: August 17, 2005

/s/ Wayne D. Brazil
Honorable Wayne D. Brazil Magistrate Judge United States District Court

STIPULATED JUDGMENT AND ORDER Case No. C 04-3306 WDB - 4 -

 
 Case4:04-cv-03306-WDB Document47 Filed03/04/11 Page1 of 8

1 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Corporation
2 Paul M. Loya (State Bar No. 57652) Marleen L. Sacks (State Bar No. 161388)
3 5075 Hopyard Road, Suite 210 Pleasanton, California 94588-2797
4 Telephone: (925) 227-9200 Facsimile: (925) 227-9202
5 Attorneys for Defendants
6

7 LEGAL SERVICES FOR CHILDREN Abigail Trillin (State Bar No. 179052)
8 1254 Market Street, 3rd Floor 9 San Francisco, California 94102
Telephone: (415) 863-3762
10 YOUTH & EDUCATION LAW PROJECT
11 William S. Koski (State Bar No. 166061) 559 Nathan Abbott Way
12 Stanford, California 94305 Telephone: (650) 724-3718
13 Attorneys for Plaintiffs
14

15

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

19 YARMAN SMITH, a Minor, by LUGERTHA SMITH, his guardian and litem, et al.,
20 Plaintiffs,
21 vs.
22 THE BOARD OF EDUCATION OF THE
23 BERKELEY UNIFIED SCHOOL DISTRICT, et al.,
24 Defendants.
25

CASE NO. C 04-3306 WDB
JOINT MOTION FOR TERMINATION OF CONSENT DECREE AND REQUEST FOR HEARING

26

27

28

005251.00084/286918v1

JOINT MOTION FOR TERMINATION OF CONSENT DECREE Case No. C 04-3306 WDB

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1

Plaintiffs Yarman Smith, Lugertha Smith, Juan Muñoz, Margarita Chavez, Summer

2 McNeil, and Senobia Augustine (hereinafter collectively “Plaintiffs” or “Class Members”), and

3 Defendants Berkeley Unified School District; Members of the Board of Education of the

4 Berkeley Unified School District; (hereinafter collectively “Defendants” or the “District”),

5 hereby jointly submit this motion, requesting that the Court terminate/lift the consent decree that

6 was originally stipulated to and approved by the Court in 2005. A copy of the applicable

7 Consent Decree is attached hereto as Exhibit A.

8 I.

PROCEDURAL HISTORY

9

Plaintiffs initially filed this action in the U.S. District Court for the Northern District of

10 California on August 13, 2004, pursuant to 42 U.S.C. section 1983, seeking relief and damages

11 against the District for its alleged failure to provide Plaintiffs and those similarly situated with

12 their constitutional and statutory right to due process prior to excluding them from school and/or

13 reassigning them from comprehensive school programs to county community schools,

14 continuation schools, home-hospital instruction programs and independent study programs

15 (“Non-Comprehensive Alternative Programs”), in the context of student discipline. Plaintiffs

16 alleged that the District’s policies had a disparate negative impact on African American and

17 Latino students. Plaintiffs’ Complaint alleged discrimination on the basis of race, ethnic group

18 identification, or color in violation of the Fourteenth Amendment to the United States

19 Constitution, Article 1, section 7, of the California Constitution, and the California Government

20 Code sections 11135-111139.5 and its implementing regulations at Title 22, sections 98000 et

21 seq. of the California Code of Regulations. (Id.) On October 14, 2004, Defendants filed an

22 Answer to Plaintiffs’ Complaint, denying the allegations that their policies and practices violated

23 the law.

24

The Parties agreed to participate in a formal mediation process, and arranged for the

25 Honorable Read Ambler, of JAMS Resolution Center, to assist them in resolving the remaining

26 disputes. (See Stipulation & Order Selecting ADR Process.) On December 20, 2004, Judge

27 Ambler, counsel for Plaintiffs, Superintendent Lawrence, and counsel for Defendants met in

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Berkeley and reached resolution on the major principles embodied in the Consent Decree. Final
1
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1 settlement was reached in March 2005.

2

The required class action notices were posted on June 2 and June 3, 2005. The settlement

3 was formally approved by the Court pursuant to FRCP 23(e) in August 2005, following the filing

4 of a joint motion. In October 2005, the District submitted its initial proposal for the “Disparity

5 Action Plan,” called for under the terms of the Consent Decree, and the parties met and

6 conferred extensively until it was finalized in April 2006, and submitted to the Court.

7

The first “Monitoring Committee” meeting, called for under the terms of the Consent

8 Decree, was held on August 14, 2006. After acting under the terms of the Consent Decree for

9 more than the required six semesters (three years), in March 2009, the District requested that the

10 parties jointly petition this Court for lifting of the Consent Decree. Since then, the District has

11 been meeting and conferring with Plaintiffs’ counsel to resolve any outstanding concerns.

12 Following this meet and confer process, the parties have agreed jointly to file this motion

13 requesting termination of the Consent Decree.

14 II. THE REQUIREMENTS OF THE CONSENT DECREE HAVE BEEN MET

15

Section VI of the Consent Decree provides as follows:

16

After proceeding under the terms of this Consent Decree for at least six

consecutive semesters (three years), if the District believes that it has achieved

17

full compliance with this Consent Decree, the District may issue a report to

Plaintiffs’ counsel, the Monitoring Committee, and the Court documenting such

18

full compliance. The Parties or the District may then move the Court for an order

terminating this litigation and Consent Decree, and dismissal of the litigation with

19

prejudice. The Court shall conduct a hearing to determine whether the District

has achieved full compliance with this Decree. The District shall demonstrate to

20

the Court’s satisfaction that this Decree has been implemented, that all

requirements have been met, and that it has achieved compliance with the

21

Consent Decree. Upon the conclusion of the hearing, the Court may enter any

further orders it deems appropriate, including, but not limited to, an order

22

terminating this Consent Decree and its jurisdiction, on order continuing

jurisdiction, or an order modifying the Consent Decree.

23

24

The requirements of the Consent Decree are outlined in Sections III and IV of the

25 Consent Decree itself, and the District’s compliance is summarized below and in the attached

26 “Final Summative Report.” (Exhibit B.) Additional details supporting the District’s compliance

27 can be found in the previously filed “Quarterly Reports.”

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1

A. Identification of and Outreach to Class Members (Consent Decree,

Section III(A))

2

3

The Consent Decree provided that the District would reach out to three different

4 populations in order to ensure that any qualifying students would be reinstated and receive

5 compensatory services. The first population, composed of students who were recommended for

6 expulsion, placed in Non-Comprehensive Alternative Programs, or excluded from school

7 entirely for more than five (5) consecutive school days or twenty (20) cumulative school days

8 during either the 2002-03 or 2003-04 academic years, were to receive oral communication and

9 letters in English, Spanish, or the recipients’ primary language, as required by California

10 Education Code section 48985. The second population, all students enrolled in District

11 comprehensive and non-comprehensive alternative programs, were to receive letters in English,

12 Spanish, or the recipients’ primary language, as required by California Education Code section

13 48985. Posting at various local government offices and community organizations, and

14 publication in the Berkeley High School Jacket was to serve to inform the third population, the

15 Berkeley community at-large.

16

The District’s compliance with this requirement is outlined on page 5 of the attached

17 Final Summative Report.

18

B. Meeting to Determine Whether Students Were Unlawfully Excluded from

19

School (Consent Decree, Section III(B))

20

The Consent Decree required that each potential Class Member interested in meeting

21 with the District was to submit a Compensatory Education Claim form to the designated

22 representative. Legal Services for Children and the Youth and Education Law Clinic were to

23 provide potential Class Members pro bono assistance completing the Compensatory Education

24 Claim forms. Within fifteen days of receiving a completed form from a potential Class Member,

25 the District was to promptly schedule and convene a meeting with that student and his or her

26 parent or guardian. At the meeting, the District was to determine whether the student was

27 unlawfully excluded from school.

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1

The District’s compliance with this requirement is outlined on page 6 of the attached

2 Final Summative Report.

3

C. Offer to Immediately Reinstate Unlawfully Excluded Students to

4

Comprehensive Schools (Consent Decree III(C))

5

The Consent Decree provided that upon determination that a student is a Class Member,

6 the District would immediately offer the student reinstatement to an age- and grade-level

7 appropriate comprehensive educational program within the District, unless reinstatement was not

8 appropriate because of the student’s age or residence. The District was to appoint an

9 administrator who would have the authority and responsibility to ensure and facilitate the

10 immediate enrollment of the student.

11

The District’s compliance with this requirement is outlined on page 6 of the Final

12 Summative Report.

13

D. Development of Plan for Students to Earn Credits and Receive

14

Compensatory Educational Services (Consent Decree III(D))

15

The Consent Decree provided for compensatory educational services and academic credit

16 repair for any student found to have been unlawfully deprived of educational services, with the

17 goal of graduating the student on time with his/her age- and grade-level peers.

18

The District’s compliance with this requirement is outlined on page 7 of the Final

19 Summative Report.

20

E. Expungement and Modification of Educational Records of Unlawfully

21

Excluded Students (Consent Decree III(E))

22

The Consent Decree provided that within fifteen (15) days of the determination that a

23 student qualifies as a Class Member, the District would expunge or modify any Class Member’s

24 educational records to remove any language indicating that he or she had been properly expelled,

25 and to indicate that any exclusion from comprehensive school for more than five (5) consecutive

26 school days or more than twenty (20) school days in any school year was unlawful, unless such

27 suspension was lawful under the California Education Code. The Class Member would also

28
005251.00084/286918v1

have the opportunity to submit a written statement to be included in his/her educational record
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1 which explains the circumstances surrounding the student’s unlawful exclusion from

2 comprehensive school.

3

The District’s compliance with this requirement is outlined on page 7 of the Final

4 Summative Report.

5

F. Establishment of Policies, Procedures and Training Programs to Prevent

Unlawful Exclusion of Students from Comprehensive School (Consent

6

Decree III(F))

7

The Consent Decree provided that the Board of Education would revise the District’s

8 suspension/expulsion policies, devise a student suspension/expulsion monitoring system, and

9 draft necessary forms. The District would also conduct comprehensive training with all

10 appropriate staff members and administrators on these new policies.

11

The District’s compliance with this requirement is outlined on pages 7-19 of the Final

12 Summative Report.

13

G. Compliance with Due Process Requirements (Consent Decree III(G))

14

Under the Consent Decree, the District committed not to participate in any practice that

15 would involuntarily exclude students from comprehensive schools or involuntarily reassign them

16 from comprehensive schools to Non-Comprehensive Alternative Programs for disciplinary

17 reasons, without complying with legal due process requirements.

18

The District’s compliance with this requirement is outlined on pages 20-21 of the Final

19 Summative Report.

20

H. Plan to Address Racial/Ethnic Disproportionality in School Discipline

21

(Consent Decree III(H))

22

Because of Plaintiffs’ allegations that the District’s disciplinary procedures had a

23 disparate impact on African-American and Latino students, the District and Plaintiffs jointly

24 developed a Disparity Action Plan designed to measure, monitor and target these issues. The

25 District’s compliance with this requirement, including implementation of its Disparity Action

26 Plan, is outlined on pages 21-58 et seq. of the Final Summative Report.

27 28
005251.00084/286918v1

I. Appeals from District Determinations and Dispute Resolution (Consent Decree III(I))
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1

The Consent Decree provided for a neutral, third-party charged with resolving disputes

2 between individual students or Class Members and the District regarding the implementation of

3 the proposed Consent Decree.

4

The District’s compliance with this requirement is outlined on page 21 of the Final

5 Summative Report.

6

J. Reporting and Oversight

7

Under the Consent Decree, the Parties agreed upon a system of District reporting and

8 external monitoring of the District’s compliance with the terms of the settlement, including the

9 following:

10

a. Monitoring Committee

11

The Parties agree to establish a Monitoring Committee consisting of five persons to meet

12 on a quarterly basis throughout the duration of the Consent Decree. These quarterly meetings

13 would provide an opportunity for reviewing and commenting on District policies, procedures, or

14 forms revised pursuant to the Consent Decree, reviewing and commenting on the District’s

15 quarterly reports, and providing comments to the District regarding its efforts to implement the

16 Consent Decree.

17

b. District Reporting

18

The Consent Decree provided for quarterly reports to be provided to Plaintiffs’ counsel,

19 the Monitoring Committee, and the Court. The reports were to contain narrative detail on the

20 District’s efforts to implement the Consent Decree, data reflecting its progress in reducing

21 ethnic/racial disproportionality in school discipline, and data reflecting the number of students

22 who attempted to take advantage of the remedial provisions of the Consent Decree and the

23 outcomes of their efforts. The District has provided those reports to Plaintiffs’ counsel, made the

24 requested revisions, and submitted those reports to the Court, where they are currently on file.

25 III. PLAINTIFFS’ SEPARATE STATEMENT

26

Plaintiffs stipulate to this “Joint Motion for Termination of Consent Decree and Request

27 for Hearing” and stipulate to the relief and order requested by this Joint Motion. By so

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stipulating, Plaintiffs do not necessarily agree to the facts contained in the reports attached to this
6
JOINT MOTION FOR TERMINATION OF CONSENT DECREE Case No. C 04-3306 WDB

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1 Joint Motion. In addition, for the Court's information, Plaintiffs attach as Exhibit C a letter sent

2 to the Berkeley Unified School District Board of Education and Superintendent detailing

3 Plaintiffs’ remaining concerns regarding racial disparities in school discipline and alternative

4 school placement in the District.

5 IV. CONCLUSION

6

Based on this Joint Motion, the exhibits attached hereto, and the pleadings already on file

7 in this action, the parties respectfully request that the Court terminate the litigation and lift the

8 Consent Decree.

9 DATED: March 3, 2011

10

Respectfully submitted,

11

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

Paul M. Loya

12

Marleen L. Sacks

13

By:

/s/

14

Marleen L. Sacks

Attorneys for Defendants

15

16 DATED: February 16, 2011

17

Respectfully submitted,

18

LEGAL SERVICES FOR CHILDREN

Abigail Trillin

19

YOUTH & EDUCATION LAW PROJECT

20

William S. Koski

21 22 23 24 25 26 27 28
005251.00084/286918v1

UNITED S
ALIFORNIA

OURT NORTH

TATES DISTRICT C IT IS SO ORDERED

By:

/s/

William S. Koski

Attorneys for Plaintiffs

Judge Claudia Wilken

ERN DISTRICT OF C

7

JOINT MOTION FOR TERMINATION OF CONSENT DECREE

Case No. C 04-3306 WDB

 
 Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 1 of 8
ADRMOP,CLOSED,E−Filing,PRVADR
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:04−cv−03306−WDB

Smith et al v. The Board of Education of the Berkeley Unified School District et al Assigned to: Magistrate Judge Wayne D. Brazil Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/13/2004 Date Terminated: 08/17/2005 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Yarman Smith a Minor, by Lagurtha Smith, his guardian ad litem

represented by William Frederick Abrams Bingham McCutchen LLP 1900 University Avenue East Palo Alto, CA 94303 650−849−4400 Fax: 650−849−4800 Email: william.abrams@bingham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Trillin , Legal Services for Children 1254 Market Street 3rd Floor San Francisco, CA 94102 415−863−3762 Fax: 415−863−7708 Email: Abigail@lsc−sf.org ATTORNEY TO BE NOTICED

Gabriela Magda Ruiz Southern legal Counsel Inc 1229 NW 12th Avenue Gainesville, FL 32601 352−271−8890 Fax: 415−954−4480 ATTORNEY TO BE NOTICED

Molly Lorraine Dunn , Stanford Legal Clinic Youth &Education Law Project 559 Nathan Abbott Way Stanford, CA 94305−8610

650−725−8581 Fax: 650−723−4426 Email: mdunn−sls@comcast.net ATTORNEY TO BE NOTICED

Peter H. Nohle Pillsbury Winthrop Shaw Pittman LLP 2475 Hanover Street Palo Alto, CA 94304−1115 650−233−4500 Fax: 650−233−4545 Email: pnohle@pillsburywinthrop.com ATTORNEY TO BE NOTICED

William Sheldon Koski Youth and Education Law Project Crown Quadrangle

Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 2 of 8

559 Nathan Abbott Way Stanford, CA 94305−8610 650−724−3718 Fax: 650−723−4426 Email: bkoski@stanford.edu ATTORNEY TO BE NOTICED

Plaintiff
Juan Munoz a Minor, by Margarita Chavez, his guardian as litem

represented by William Frederick Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Trillin , (See above for address) ATTORNEY TO BE NOTICED

Gabriela Magda Ruiz (See above for address) ATTORNEY TO BE NOTICED

Molly Lorraine Dunn , (See above for address) ATTORNEY TO BE NOTICED

Peter H. Nohle (See above for address) ATTORNEY TO BE NOTICED

William Sheldon Koski (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Summer McNeil a Minor, by Sonobia Augustine, her guardian ad litem

represented by William Frederick Abrams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Trillin , (See above for address) ATTORNEY TO BE NOTICED

Gabriela Magda Ruiz (See above for address) ATTORNEY TO BE NOTICED

Molly Lorraine Dunn , (See above for address) ATTORNEY TO BE NOTICED

Peter H. Nohle (See above for address) ATTORNEY TO BE NOTICED

William Sheldon Koski (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 3 of 8

The Board of Education of the Berkeley Unified School District

represented by Marleen Lee Sacks Atkinson Andelson Loya Rudd &Romo 5075 Hopyard Road Suite 210 Pleasanton, CA 94588−2797 925−227−9200 Email: msacks@aalrr.com ATTORNEY TO BE NOTICED

Defendant
Gerald Herrick Director of the Office of Student Services of the Berkeley Unified School District

represented by Marleen Lee Sacks (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michele Lawrence Superintendent of the Berkeley Unified School District

represented by Marleen Lee Sacks (See above for address) ATTORNEY TO BE NOTICED

Defendant
John T. Selawsky President of Board of Education of the Berkeley Unified School District

represented by Marleen Lee Sacks (See above for address) ATTORNEY TO BE NOTICED

Defendant
Nancy Riddle Vice President of The Board of Education of the Berkeley Unified School District

represented by Marleen Lee Sacks (See above for address) ATTORNEY TO BE NOTICED

Defendant
Joaquin J. Rivera Director of the Board of Education of the Berkeley Unified School District

represented by Marleen Lee Sacks (See above for address) ATTORNEY TO BE NOTICED

Defendant
Terry S. Doran Director of the Board of Education of the Berkeley Unified School District

represented by Marleen Lee Sacks (See above for address) ATTORNEY TO BE NOTICED

Defendant
Shirley Issel Director of the Board of Education of the Berkeley Unified School District

represented by Marleen Lee Sacks (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/13/2004
08/13/2004 08/13/2004

# Docket Text
1 COMPLAINT (with jury demand) against Terry S. Doran, Gerald Herrick, Shirley Issel, Michele Lawrence, Nancy Riddle, Joaquin J. Rivera, John T. Selawsky, The Board of Education of the Berkeley Unified School District (Filing fee $150, receipt number 3362967). Filed by Summer McNeil, Juan Munoz, Yarman Smith. (cjl, COURT STAFF) (Filed on 8/13/2004) Additional attachment(s) added on 9/2/2004 (cjl, COURT STAFF). (Entered: 08/17/2004)
Summons Issued as to Shirley Issel. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
Summons Issued as to Terry S. Doran. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)

Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 4 of 8

08/13/2004 08/13/2004 08/13/2004 08/13/2004 08/13/2004 08/13/2004 08/13/2004 08/13/2004 10/15/2004
10/15/2004
12/02/2004 12/06/2004 12/06/2004
12/07/2004 12/07/2004 12/13/2004 12/13/2004 12/14/2004

Summons Issued as to Joaquin J. Rivera. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
Summons Issued as to Nancy Riddle. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
Summons Issued as to John T. Selawsky. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
Summons Issued as to Michele Lawrence. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
Summons Issued as to Gerald Herrick. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
Summons Issued as to The Board of Education of the Berkeley Unified School District. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 12/6/2004. Case Management Conference set for 12/13/2004 04:00 PM. (Attachments: # 1 Standing Order)(cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
CASE DESIGNATED for Electronic Filing. (cjl, COURT STAFF) (Filed on 8/13/2004) (Entered: 08/17/2004)
3 Defendants' ANSWER to Complaint by Terry S. Doran, Gerald Herrick, Shirley Issel, Michele Lawrence, Nancy Riddle, Joaquin J. Rivera, John T. Selawsky, The Board of Education of the Berkeley Unified School District. (Sacks, Marleen) (Filed on 10/15/2004) (Entered: 10/15/2004)
4 CERTIFICATE OF SERVICE by Terry S. Doran, Gerald Herrick, Shirley Issel, Michele Lawrence, Nancy Riddle, Joaquin J. Rivera, John T. Selawsky, The Board of Education of the Berkeley Unified School District Defendants' Answer to Complaint (Sacks, Marleen) (Filed on 10/15/2004) (Entered: 10/15/2004)
5 ADR Clerks Notice re: Failure to Comply with Court Order. (tjs, COURT STAFF) (Filed on 12/2/2004) (Entered: 12/02/2004)
6 STIPULATION and Proposed Order selecting Arbitration by Summer McNeil, Yarman Smith, Juan Munoz (Nohle, Peter) (Filed on 12/6/2004) (Entered: 12/06/2004)
7 JOINT CASE MANAGEMENT STATEMENT filed by Summer McNeil, The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Yarman Smith, Shirley Issel, Juan Munoz. (Nohle, Peter) (Filed on 12/6/2004) (Entered: 12/06/2004)
8 STIPULATION AND ORDER SELECTING ADR PROCESS. Signed by Magistrate Judge Wayne D. Brazil on 12−7−04. (wdblc2) (Filed on 12/7/2004) (Entered: 12/07/2004)
CASE REFERRED to Private ADR. (cjl, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
9 Minute Entry: Initial Case Management Conference held on 12/13/2004 before Wayne D. Brazil (Date Filed: 12/13/2004). (Tape #FTR 12/13/04 4:09 p.m.) (wdblc1) (Date Filed: 12/13/2004) (Entered: 12/13/2004)
Set/Reset Hearings: Further Case Management Conference set for 1/26/2005 02:30 PM. (cjl, COURT STAFF) (Filed on 12/13/2004) (Entered: 12/14/2004)
10 ORDER FOLLOWING INITIAL CASE MANAGEMENT CONFERENCE. Mediation, with Judge Ambler, set for 12/20/04. Further Case Management Conference, by telephone, set for 1/26/05 at 2:30. Signed by Magistrate Judge Wayne D. Brazil on 12/14/04. (wdblc1) (Filed on 12/14/2004) Modified on 12/15/2004 (cjl, COURT STAFF). Modified on 12/16/2004 (cjl, COURT STAFF). (Entered: 12/14/2004)

Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 5 of 8

12/14/2004 01/24/2005
02/14/2005 02/15/2005 03/14/2005 03/14/2005
03/14/2005
03/14/2005 03/14/2005
04/04/2005 04/04/2005 04/11/2005 04/15/2005 04/21/2005

Set Deadlines/Hearings: Case Management Statement due by 1/24/2005. (cjl, COURT STAFF) (Filed on 12/14/2004) (Entered: 12/15/2004)
11 FURTHER JOINT CASE MANAGEMENT STATEMENT filed by Summer McNeil, The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Yarman Smith, Shirley Issel, Juan Munoz. (Nohle, Peter) (Filed on 1/24/2005) Modified on 1/25/2005 (cjl, COURT STAFF). (Entered: 01/24/2005)
12 Minute Entry: Further Case Management Conference held on 2/14/2005 before Wayne D. Brazil (Date Filed: 2/14/2005). (Tape #05−4.) (wdblc1, COURT STAFF) (Date Filed: 2/14/2005) (Entered: 02/14/2005)
13 ORDER FOLLOWING FEBRUARY 14, 2005, FURTHER CASE MANAGEMENT CONFERENCE. Signed by Magistrate Judge Wayne D. Brazil on 2/14/05. (wdblc1, COURT STAFF) (Filed on 2/15/2005) Modified on 2/16/2005 (cjl, COURT STAFF). (Entered: 02/15/2005)
14 Joint MOTION for Settlement Preliminary Approval of Proposed Consent Decree and Provisional Certification of Class for Settlement Purposes filed by Summer McNeil, Yarman Smith, Juan Munoz. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Nohle, Peter) (Filed on 3/14/2005) (Entered: 03/14/2005)
15 Declaration of William S. Koski in Support of 14 Joint MOTION for Settlement Preliminary Approval of Proposed Consent Decree and Provisional Certification of Class for Settlement Purposes filed by Summer McNeil, Yarman Smith, Juan Munoz. (Related document(s) 14 ) (Nohle, Peter) (Filed on 3/14/2005) Modified on 3/15/2005 (cjl, COURT STAFF). (Entered: 03/14/2005)
16 Declaration of John O'Toole in Support of 14 Joint MOTION for Settlement Preliminary Approval of Proposed Consent Decree and Provisional Certification of Class for Settlement Purposes filed bySummer McNeil, Yarman Smith, Juan Munoz. (Related document(s) 14 ) (Nohle, Peter) (Filed on 3/14/2005) Modified on 3/15/2005 (cjl, COURT STAFF). (Entered: 03/14/2005)
17 Proposed Order re 14 Joint MOTION for Settlement Preliminary Approval of Proposed Consent Decree and Provisional Certification of Class for Settlement Purposes by Summer McNeil, Yarman Smith, Juan Munoz. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Nohle, Peter) (Filed on 3/14/2005) (Entered: 03/14/2005)
18 Declaration of Peter H. Nohle in Support of 14 Joint MOTION for Settlement Preliminary Approval of Proposed Consent Decree and Provisional Certification of Class for Settlement Purposes filed by Summer McNeil, Yarman Smith, Juan Munoz. (Related document(s) 14 ) (Nohle, Peter) (Filed on 3/14/2005) Modified on 3/15/2005 (cjl, COURT STAFF). (Entered: 03/14/2005)
19 Minute Entry: Telephonic Conference held on 4/1/2005 before Wayne D. Brazil (Date Filed: 4/4/2005). (Court Reporter Starr Wilson.) (wdblc1, COURT STAFF) (Date Filed: 4/4/2005) (Entered: 04/04/2005)
20 ORDER FOLLOWING APRIL 1, 2005, TELEPHONIC CONFERENCE. Signed by Magistrate Judge Wayne D. Brazil on 4/4/05. (wdblc1, COURT STAFF) (Filed on 4/4/2005) Modified on 4/5/2005 (cjl, COURT STAFF). (Entered: 04/04/2005)
21 NOTICE by Summer McNeil, Yarman Smith, Juan Munoz of Change of Firm Name (Nohle, Peter) (Filed on 4/11/2005) (Entered: 04/11/2005)
22 RESPONSE to Issues Raised by the Court Regarding Proposed Consent Decree and Joint Motion for Preliminary Approval by Summer McNeil, Yarman Smith, Juan Munoz. (Nohle, Peter) (Filed on 4/15/2005) Modified on 4/18/2005 (cjl, COURT STAFF). (Entered: 04/15/2005)
23 ORDER FOLLOWING REVIEW OF APRIL 15, 2005, SUBMISSION. Signed by Magistrate Judge Wayne D. Brazil on 4/21/05. (wdblc1, COURT STAFF) (Filed on 4/21/2005) Modified on 4/22/2005 (cjl, COURT STAFF). (Entered: 04/21/2005)

Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 6 of 8

05/03/2005 05/16/2005
05/17/2005
05/17/2005 05/18/2005 05/18/2005 05/18/2005 06/10/2005
06/10/2005 08/05/2005 08/05/2005 08/05/2005 08/16/2005 08/17/2005

24 Letter from William S. Koski Re Further Written Submission in Response to Order Following Review of April 15, 2005 Submission. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Nohle, Peter) (Filed on 5/3/2005) (Entered: 05/03/2005)
25 Letter from William S. Koski Re Further Written Submission in Response to Order Following Review of April 15, 2005 Submission.. (Attachments: # 1 Exhibit A (part 1) [Consent Decree with Attachments]# 2 Exhibit A (part 2) [Consent Decree with Attachments]# 3 Exhibit A (part 3) [Consent Decree with Attachments]# 4 Exhibit B [Notices]# 5 Exhibit C [Proposed Order with Attachments])(Nohle, Peter) (Filed on 5/16/2005) (Entered: 05/16/2005)
26 ORDER (1) PROVISIONALLY CERTIFYING CLASS FOR SETTLEMENT PURPOSES, (2) APPROVING PARTIES' PROPOSED NOTICE PLAN, (3) SETTING DATE FOR FAIRNESS HEARING, (4) PRELIMINARILY APPROVING CONSENT DECREE, AND (5) CONDITIONALLY GRANTING PETITION FOR APPROVAL OF THE ATTORNEYS' FEES PORTION OF THE SETTLEMENT y Magistrate Judge Wayne D. Brazil granting 14 . (wdblc1, COURT STAFF) (Filed on 5/17/2005) Modified on 5/18/2005 (cjl, COURT STAFF). (Entered: 05/17/2005)
Set/Reset Hearings: Fairness Hearing set for 7/27/2005 01:00 PM. (cjl, COURT STAFF) (Filed on 5/17/2005) (Entered: 05/18/2005)
27 STIPULATION and [Proposed] Order Continuing Final Fairness Hearing by The Board of Education of the Berkeley Unified School District. (Sacks, Marleen) (Filed on 5/18/2005) (Entered: 05/18/2005)
28 STIPULATION AND ORDER CONTINUING FINAL FAIRNESS HEARING. Signed by Magistrate Judge Wayne D. Brazil on 5/18/05. (wdblc1, COURT STAFF) (Filed on 5/18/2005) Modified on 5/19/2005 (cjl, COURT STAFF). (Entered: 05/18/2005)
Set/Reset Hearings: Fairness Hearing set for 8/3/2005 01:00 PM. (cjl, COURT STAFF) (Filed on 5/18/2005) (Entered: 05/19/2005)
29 Declaration of Michele Lawrence re Posting of Required Notices re 26 Order on Motion for Settlement by The Board of Education of the Berkeley Unified School District. (Attachments: # 1 Exhibit Legal Notice# 2 Exhibit Proof of Posting by District Employees# 3 Exhibit Schools List, Part 1# 4 Exhibit Schools List, Part 2# 5 Exhibit Schools List, Part 3)(Sacks, Marleen) (Filed on 6/10/2005) Modified on 6/13/2005 (cjl, COURT STAFF). (Entered: 06/10/2005)
30 Proof of Service re 29 Affidavit by The Board of Education of the Berkeley Unified School District, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Shirley Issel. (Sacks, Marleen) (Filed on 6/10/2005) Modified on 6/13/2005 (cjl, COURT STAFF). (Entered: 06/10/2005)
31 Consent Decree filed by Summer McNeil, Yarman Smith, Juan Munoz. (Abrams, William) (Filed on 8/5/2005) Modified on 8/8/2005 (cjl, COURT STAFF). (Entered: 08/05/2005)
32 Minute Entry: Fairness Hearing held on 8/3/2005 before Wayne D. Brazil (Date Filed: 8/5/2005). (Court Reporter Diane Skillman.) (wdblc1, COURT STAFF) (Date Filed: 8/5/2005) (Entered: 08/05/2005)
33 ORDER FOLLOWING FINAL FAIRNESS HEARING. Signed by Magistrate Judge Wayne D. Brazil on 8/3/05. (Attachments: # 1)(wdblc1, COURT STAFF) (Filed on 8/5/2005) Modified on 8/8/2005 (cjl, COURT STAFF). (Entered: 08/05/2005)
34 Stipulated Judgment and Proposed Order Certifying Plaintiff Class and Designating Class Representives and Class Counsel by Summer McNeil, Yarman Smith, Juan Munoz. (Abrams, William) (Filed on 8/16/2005) Modified on 8/17/2005 (cjl, COURT STAFF). (Entered: 08/16/2005)
35 STIPULATED JUDGMENT. Signed by Magistrate Judge Wayne D. Brazil on 8/17/05. (Attachments: # 1)(wdblc1, COURT STAFF) (Filed on 8/17/2005) Modified on 8/18/2005 (cjl, COURT STAFF). (Entered: 08/17/2005)

Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 7 of 8

09/12/2006
03/15/2007
03/16/2007 03/16/2007 03/29/2007 01/11/2008 01/11/2008 04/04/2008 07/24/2008

36 Declaration of Marleen L. Sacks in Support of 31 Filing of Disparity Action Plan and First Quarterly Report filed by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Attachments: # 1 Exhibit Exhibit A to Sacks Decl ISO Filing of Disparity Action Plan# 2 Exhibit Exh. B, Part 1 of 8# 3 Exhibit Exh. B., Part 2 of 8# 4 Exhibit Exh. B, Part 3 of 8# 5 Exhibit Exh. B, Part 4 of 8# 6 Exhibit Exh. B, Part 5 of 8# 7 Exhibit Exh. B, Part 6 of 8# 8 Exhibit Exh. B, Part 7 of 8# 9 Exhibit Exh. B, Part 8 of 8)(Related document(s) 31 ) (Sacks, Marleen) (Filed on 9/12/2006) Modified on 9/13/2006 (cjl, COURT STAFF). (Entered: 09/12/2006)
37 *** FILED IN ERROR. DOCUMENT LOCKED. PLEASE SEE DOCKET # 39 . *** Declaration of Marleen L. Sacks Supporting Filing of Third Quarterly Report by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Attachments: # 1 Appendix Appendices A−G to Exhibit A to Sacks Decl.# 2 Appendix Appendices A−G to Exhibit A to Sacks Decl.)(Sacks, Marleen) (Filed on 3/15/2007) Modified on 3/16/2007 (cjl, COURT STAFF). Modified on 3/16/2007 (ewn, COURT STAFF). (Entered: 03/15/2007)
38 MOTION to Remove Incorrectly Filed Document filed by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Sacks, Marleen) (Filed on 3/16/2007) (Entered: 03/16/2007)
39 Declaration of Marleen Sacks Supporting Filing of Third Quarterly Report Correction of Docket # 37 by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Attachments: # 1 Exhibit Ex A to Sacks Decl# 2 Appendix to Ex A to Sacks Decl re 3d Qtr Report)(Sacks, Marleen) (Filed on 3/16/2007) Modified on 3/19/2007 (cjl, COURT STAFF). (Entered: 03/16/2007)
40 Declaration of Marleen L. Sacks Supporting Filing of Second Quarterly Report by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Sacks, Marleen) (Filed on 3/29/2007) Modified on 3/30/2007 (cjl, COURT STAFF). (Entered: 03/29/2007)
41 Berkeley Unified School District's Year Two, First Quarterly Report by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Attachments: # 1 Exhibit to Affidavit)(Sacks, Marleen) (Filed on 1/11/2008) Modified on 1/14/2008 (cjl, COURT STAFF). Modified on 1/14/2008 (cjl, COURT STAFF). (Entered: 01/11/2008)
42 Declaration of Marleen L. Sacks Supporting Filing of Year Two, First Quarterly Report by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Sacks, Marleen) (Filed on 1/11/2008) Modified on 1/14/2008 (cjl, COURT STAFF). (Entered: 01/11/2008)
43 Declaration of Marleen L. Sacks re 31 Consent Decree by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Attachments: # 1 Exhibit to Sacks Decl. supporting filing of Yr 2, Qtr 2 report, # 2 Appendix A−E to Ex A to Sacks Decl. re filing of Yr 2, Qtr 2 report)(Sacks, Marleen) (Filed on 4/4/2008) Modified on 4/7/2008 (oh, COURT STAFF). (Entered: 04/04/2008)
44 Declaration of Marleen L. Sacks Supporting Filing of Year Two, Third Quarterly Report by The Board of Education of the Berkeley Unified School District, Gerald Herrick, Michele Lawrence, John T. Selawsky, Nancy Riddle, Joaquin J. Rivera, Terry S. Doran, Shirley Issel. (Attachments: # 1 Exhibit "A" Part 1 of 2, Yr 2, 3d Qtr, # 2 Exhibit "A" Part 2 of 2, Yr 2, 3d Qtr)(Sacks, Marleen) (Filed on 7/24/2008) Modified on 7/25/2008 (cjl, COURT STAFF). (Entered: 07/24/2008)

Case: 4:04-cv-03306-WDB As of: 06/04/2012 12:07 PM PDT 8 of 8

03/03/2011 03/03/2011
03/04/2011 03/04/2011

45 Joint MOTION for Hearing JOINT MOTION FOR TERMINATION OF CONSENT DECREE AND REQUEST FOR HEARING filed by The Board of Education of the Berkeley Unified School District. (Sacks, Marleen) (Filed on 3/3/2011) (Entered: 03/03/2011)
46 EXHIBITS re 45 Joint MOTION for Hearing JOINT MOTION FOR TERMINATION OF CONSENT DECREE AND REQUEST FOR HEARING filed byThe Board of Education of the Berkeley Unified School District. (Attachments: # 1 Exhibit, # 2 Exhibit)(Related document(s) 45 ) (Sacks, Marleen) (Filed on 3/3/2011) (Entered: 03/03/2011)
MOTION REFERRED to General Duty Judge, Claudia Wilken. (cjl, COURT STAFF) (Filed on 3/4/2011) (Entered: 03/04/2011)
47 ORDER by Judge Claudia Wilken granting 45 Motion for Hearing (ndr, COURT STAFF) (Filed on 3/4/2011) (Entered: 03/07/2011)