J.G. v. Rochester Bd. of Ed.

CW-NY-002-004 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK
J.G., by his mother and next friend, Mrs. G., et al.,
Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT, et al..
Defendants.

STIPULATION AND ORDER ON MOTION FOR ENFORCEMENT AND FURTHER RELIEF
Civil Action No. 81-173T

Findings of Fact 1. On August 16, 1983, a Stipulation to Entry of Judgment was entered into by the parties to this action and filed with this Court. The provisions of this Stipulation were incorporated into a Consent Judgment that was entered on September 6, 1983. 2. In November 1, 1989 a Modified Stipulation to Entry of Judgment was agreed to by the parties to this action. The provisions of this Stipulation were incorporated by the Court into the Consent Judgment. 3. In October, 1991, plaintiffs' attorneys notified defendants of several areas covered by the consent judgment where non-compliance had increased substantially. 4. Plaintiffs' attorneys identified the following areas of non-compliance during their monitoring:
a. Referrals to the Committee on Special Education (CSE) of children with suspected disabilities were not completed within the time provisions required by law and agreed to in the Consent Judgment. The monitoring reports show that in the 19921993 school year, 4,400 referrals to the Committee on Special

Education were made and in 72% of such referrals a determination of the Committee on Special Education as to whether the child needed special educational services was not completed in a timelymanner and of that percentage at least 52% were not completed for a reason which is not permissible under the Consent Judgement and the applicable federal and state regulations.
b. Individualized Educational Programs (IEPs) developed at the Committee on Special Education meetings are not consistently implemented at the building level. Monitoring by plaintiffs' counsel and the District's self-review showed that some students were not provided with the full educational program contained in their IEPs including failures to provide mainstreaming, alternative testing, and the complete instructional program required by their IEPs. This problem was especially significant for students with disabilities who were to be receiving their instruction in general education classes.
c. Efforts by Special Instructional Services (SIS) staff to enforce compliance with the provisions of the Consent Judgment often have not been successful. Violations identified by central office staff are often not corrected at the building level. Compliance plans requested of buildings by SIS staff contain excuses rather than constructive plans to resolve site-level compliance issues.
d. Students with disabilities in certain instances do not have access to the full range of programs and equipment, such as laboratories and computer rooms, which are available to general education students.

e. Disciplinary procedures agreed to in the Michael T. consent judgment and incorporated into the J.G. consent judgment are not being fully implemented.
5. In November, 1991, both parties began negotiations in good faith to improve compliance.
6. As a result of nearly two years of negotiations, during which defendant's employees met repeatedly with the plaintiffs' attorneys to cooperatively identify compliance problems and design strategies to correct identifiable problems, both parties now agree to the following plan to remedy compliance problems identified by plaintiffs' counsel and by the defendant's self-review.
7. The additional provisions as set forth in appendices A through E attached hereto shall supplement the provisions of the current consent judgment and unless expressly stated otherwise the provisions of the consent judgment shall remain in effect.
IT IS THEREFORE STIPULATED AND AGREED by the attorneys for parties hereto and the Superintendent of Schools, that the school district agrees to the attached provisions, subject to the approval of the Court:
1. That the School District commits to provide those resources reasonably calculated to carry out the goals and objectives of the provisions as set forth in appendices A through E attached hereto.
2. That the plaintiffs' attorneys shall continue to monitor the defendant and the Court shall retain jurisdiction over this matter for a period of an additional three years from the date of the entry of this Stipulation and Order.

3. That attorneys fees in the amount of $60,679.50, unless otherwise stipulated by the parties or determined by the Court, shall be paid to Monroe County Legal Assistance Corp. in full settlement of attorney's fees claims through September 5, 1993.
4. That if attorney's fees for future monitoring and compliance activities are incurred, they shall be paid on a monthly basis for time spent at the prevailing rate for attorney's with similar experience in the community. If defendant, disagrees with the time spent or with the rate charged, the parties will discuss the issues raised. If the parties, are unable to reach an agreement than the parties will submit the issues to the Judge by letter.
5. The terms of this Motion shall be incorporated in an Order and Judgment of the Court. Dated: October,/£Tl993

Manuel Superintendent Rochester City Schools
Donald T. Schmitt, Esq. Acting Counsel Rochester City Schools 131 West Broad Street Rochester, NY 14614 Tel.: (716) 262-8412 Attorney for Defendants
SO ORDERED:

Bryan/D. Hetherini§ton, Esq. Kathryn Smolarek/Esq. Monroe County Legal Assistance Corp 87 N. Clinton Avenue
Rochester, NY 14604 Tel.: (716) 325-2520
Attorneys for Plaintiffs

DATED: October

1993

Hon. Michael A. Telesca Chief Judge United States District Court Western District of New York

Appendix A Referrals 1. Staff development will be provided through faculty meetings, citywide meetings, and Superintendent Conference Days for all general educators regarding the indicators of educational disabilities. 2. Evaluation and reporting forms used by Student Support Services staff will focus on student potential and strengths with an emphasis on the provision of services necessary to keep a child in general education classes. Any change or substitution in the current reporting forms shall be approved by the plaintiffs' counsel prior to implementation. 3. Sufficient release time will be provided for staff development for Student Support Services managers and team members to ensure they possess the knowledge and skills necessary to function as student support teams. 4. Sufficient release time will be provided for discipline specific staff to ensure they possess the knowledge and skill necessary to function in the changing role of "diagnostic staff" . 5. Adequate Student Support Services staff will be provided in the schools to ensure that sufficient support services are provided to at risk students, general education and special education teachers with the emphasis on maintaining students in general education classes. 6. Adequate staff will be provided to ensure that referrals to the Committee on Special Education are processed and completed in a timely manner.

7. Sufficient district staff development will be provided to refine diagnostic and identification processes to assure nondiscrimination on basis of ethnicity and culture.
Appendix B Compliance and Accountability 1. Individualized Educational Programs (IEP) for students with disabilities will be fully implemented by the building sites. The building principal as instructional leader will be responsible for compliance. 2. The defendant commits to providing sufficient reserve classrooms at the elementary, middle and senior level to ensure that students are not waiting for special education placements within the District. 3. To facilitate school-site ownership and compliance, the Superintendent or his or her designee will develop explicit expectations and consequences for non-compliance. 4 . Districtwide student accountability measures will include achievement of students with disabilities. 5. Individual school-site administrators in conjunction with school based planning teams will develop and submit to the Superintendent individual site plans to insure compliance with federal and state laws and the provisions of the J.G. consent decree. 6 . The defendant will establish procedures for effective internal compliance monitoring with sufficient allocation of resources. 7. Parties agree to develop a plan for compliance monitoring

which will be included as an attachment by December 15, 1993. 8. Adequate Special Instructional Services administrators
and staff will be provided to fulfill their role in providing instructional leadership, training for buildings, technical assistance, and monitoring.
Appendix C Discipline 1. Procedures will be developed whereby paraprofessionals required by the Michael T. consent decree will be provided within 5 days to any student who the CSE decides needs the additional support. 2. School administrators will, in conjunction with the Student Support Team, develop a plan to return a student to their school after a suspension. The plan developed will be presented to the Committee on Special Education (CSE). 3. Short term suspension procedures provided in J.G. and Michael T. shall be followed at the building level. The principal as instructional leader will be responsible to ensure that mandated short term suspension meetings and IEP meetings are held as required. 4. Parties will no later than December 15, 1993 revise the school based procedures required by Michael T. 5. CSE members shall require that the procedures of Michael T. are followed at the building site, and shall recommend no change in placement inconsistent with the provisions of Michael T. 6. Sufficient inservice time will be made available to instruct CSE, building administrators and building staff as to the

philosophy and requirements of Michael T.
Appendix D Accessibility 1. School sites employing an entrance criteria will modify same to assure that students with disabilities shall have equal access to all District programs. 2. District programs shall allocate spaces at each site beginning in 1994-1995 school year for students with disabilities. 3. Recruitment procedures will be implemented to encourage students with disabilities to apply for the allocated spaces. 4. Students with disabilities will be assigned a space in general education classrooms in their school of attendance to ensure appropriate implementation of their IEPs. 5. Students with disabilities will be fully mainstreamed in accordance with their abilities and as provided by their IEPs. 6. Students with disabilities shall have access to instructional equipment and services equivalent to that available to general education students. 7. Building administrators shall schedule laboratories and arrange for the purchasing of textbooks to ensure that students with disabilities have equitable access to laboratories, computers, books and other educational supports provided to general education students. 8. Procedures for requesting a reasonable accommodation pursuant to §504 of the Rehabilitation Act and the Americans with Disability Act and a system for tracking when a reasonable accommodation has been granted or denied will be developed.

9. To ensure equal access of students with disabilities to course selection, each school will schedule students with disabilities at the same time and through the same process as their peers.
Appendix E Inclusion 1. To ensure that most of the defendant's students will receive special education in their home schools or schools of choice, the School District will redefine catchment areas with respect to special education students for home schools and provide sufficient space for students with disabilities at each site. 2. The defendant shall develop a plan for the implementation by April 1, 1994 and the defendant shall fully implement said plan by the 1999-2000 school year. 3. The defendant will expand its school based support, including but not limited to consultant, resource teacher, and school based support team services, to both special and general education staff and students to facilitate the placement of students with disabilities in their home schools or schools of choice. 4. To provide for a more even distribution and space for students with disabilities, newly developed magnet programs shall be located in schools of traditionally low general education enrollment. 5. All new schools as well as schools undergoing a major redesigning of program or facility will be opened or re-opened with an inclusion model in place, this currently includes the new School

of the Arts, School #8, Northeast Middle School, and John Marshall Center for Learning.
6. School administrators in conjunction with school based planning teams at each school will develop plans to provide services to all children with disabilities assigned to their building as the home school or school of choice in the general education by June of 1995. The parties shall agree upon an implementation schedule which will provide for full implementation of all plans no later than the 1999-2000 school year.
7. To provide incentives to schools, monies will be made available to schools willing to implement an approved plan for educating home school students with disabilities in their site beginning in September 1994.
8. Resources shall be made available to assure sufficient support staff to District students and staff to implement the inclusion model including, but not limited to: human supports, modification of the learning environment, instructional equipment, testing modifications, and instruction in techniques necessary to remain in general education programs and meet the needs of the individual learner.
9. Service models will be developed to meet the needs of students with disabilities in the home school or school of choice for those students presently attending BOCES or agency programs.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
J.G., by his mother and next friend, Mrs. G., et al.,
Plaintiffs,
- vs -
THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT, et al. ,
Defendants.

8J-CV-173T

Take notice of an Order of which the within is a copy, duly granted in the within entitled action on the 15th day of October, 1993 and entered in the office of the Clerk of the United States District Court, Western District of New York, on the 14th day of June, 1994.

Dated:

Rochester, New York June 14, 1994

TO:

all counsel

RODNEY C. EARLY, Clerk U. S. District Court Western District of New York 282 U. S. Courthouse Rochester, New York 14614

 
 J.G. v. Rochester Bd. of Ed.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
J.G., et al..

- -• •

•• •• •• • • i

CW-NY-002-005

Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT, et al.,

Civil Action No. 81-173T
MODIFIED STIPULATION TO ENTRY OF
CONSENT I>ELCREE

Defendants. -n
o
INTRODUCTION
ffiQ m <S •'zr
1. This class action was filed in 1981 to en&^agcerothe

provisions of the Individuals With Disabilities Education Act, 2 0

U.S.C. §§ 1400 et seq., and Section 504 of the Rehabilitation Act,

29 U.S.C. § 794, and the federal regulations implementing both

statutes. The plaintiff class consists of all students with

disabilities in the Rochester City School District (the District)

and their parents and all students in the District who have been

referred to the CSE/CPSE. The defendants are the Board of

Education of the Rochester City School District, all of its

officers and employees, all such persons' successors in office,

agents and servants, and those other persons in active

participation with them who receive or have received actual notice

of this judgment by personal service or otherwise. Plaintiffs

sought system-wide changes in the District's special education

delivery system which would provide them with, among other things:

a. timely evaluations, program recommendations and

placements;

b. full parental involvement in meetings of the Committee on Special Education (CSE) and in other aspects of their children's special education;
c. education in the least restrictive environment and a reduction in the number of students with disabilities placed on home instruction;
d. equal access by students with disabilities to the District's special schools and programs, curricular and extracurricular activities, and school facilities, equipment and supplies; and
e. a self-monitoring system which the District itself could use to monitor and maintain compliance.
2. In 1983 the District and the plaintiffs entered into a Consent Decree describing the manner in which the District would make the system-wide changes needed to correct the problems identified above. For several years the District successfully implemented many of the provisions of the Consent Decree and substantially improved its compliance in the areas of timely evaluation, recommendation and placement and parental participation. In 1989 the original Consent Decree was modified by agreement between the parties to reflect minor changes in regulatory requirements and other agreed-upon changes.
3. In order to address compliance problems, as well as problems arising in compliance with the Consent Decree in the related case of Michael T. v. Board of Education (regarding discipline of students with disabilities), the parties negotiated

for two years and agreed to an Enforcement Order, which was entered in October, 1993. In the 1993 Order the District committed to take specified action to correct compliance problems in five major areas: timely evaluation and placement; internal compliance monitoring and accountability; discipline of students with disabilities; equal access; and inclusion (education in the least restrictive environment).
4. The District desired to achieve compliance by means different from those articulated in the 1989 Consent Decree and the 1993 Enforcement Order. Plaintiffs agreed to negotiate changes in the Decree and Order if the District could present different and better ways of achieving compliance.
5. After months of negotiations, the parties have agreed that the best way to achieve a quality education for students with disabilities and compliance with the law is to focus on achieving a clear set of defined outcomes for students.
6. The parties now enter into the following Stipulation and agree that its terms may be ordered by the Court as a Consent Decree. The Court shall retain jurisdiction of this matter for an additional three years from the date of the signing of the Consent Decree unless the Court determines, after a motion on notice to the parties, that the District has met the requirements for disengagement from Court supervision, as described below, at an earlier date.
7. The parties acknowledge that the District will develop an early intervention plan as required by its agreement with the

United States Department of Education's Office of Civil Rights. The District has shared with plaintiffs' counsel the draft of the plan it forwarded to the Office of Civil Rights for review on April 30, 1997. The parties will meet and discuss the interface of the plan with this Consent Decree before the plan is implemented.

I. TIMELY RECOMMENDATION BY CSE

1. These provisions apply to all referrals to either the CSE

or CPSE which are: (a) initial referrals; (b) referrals for a

change in classification, program or placement, or referrals for an

amendment to the IEP; and (c) triennial or annual reviews which are

treated as changes or amendments.

2. When used in this agreement, "days" means school work

days except in July and August when it means every day except

Saturday, Sunday and legal holidays.

3. The District will require that the CSE meet and agree

upon a CSE recommendation (including classification and

program/services to be provided) within thirty-five (35) days from

the date of referral. The number of CSE meetings at which this

requirement is not met shall be reduced to no more than the

following:

For School Year

Over 3 5 Days Over 60 Days

1996-97

500

0

1997-98

350

0

1998-99

270

0

In the event that the total number of CSE meetings held goes up or

down by more than 10% from the total for 1995-96 (4,500), then the

numbers listed above will be increased or decreased by the percent

of the change.

4. The District will require that the CPSE meet and agree

upon a CPSE recommendation (including classification and program/

services to be provided) within thirty-five (3 5) days from the date

of referral (or, for initial referrals, from the date of receipt of

parental consent to test and parental selection of an evaluator).

The number of CPSE meetings at which this requirement is not met

shall be reduced to no more than the following:

For School Year

Over 35 Days Over 60 Days

1996-97

900

0

1997-98

550

0

1998-99

200

0

In the event that the total number of CPSE meetings held goes up or

down by more than 10% from the total for 1995-96 (1,021), then the

numbers listed above will be increased or decreased by the percent

of the change.

5. At the time of disengagement, the percentage of bilingual

CSEs and CPSEs in which the CSE/CPSE fails to meet and agree upon

a recommendation within thirty-five (35) days from the date of the

referral shall be substantially equivalent to (no greater than five

(5) percentage points more than) the overall percentage of all

CSE/CPSE meetings in which the CSE/CPSE fails to meet and agree

upon a recommendation within thirty-five (35) days from the date of

the referral.

6. During the 1996-97, 1997-98 and 1998-99 school years the District will be in a transition phase with regard to triennial reviews in an effort to combine these reviews with annual reviews. During these three years, the District will ensure that all students receive their triennial reviews during the school year in which they are due. After the three (3) year transition period, the District will ensure that triennial reviews are completed within three (3) calendar years after each student's previous complete evaluation.
7. Schools will track and report on annual reviews to ensure that reviews are conducted within one calendar year of the previous review or most recent CSE/CPSE meeting at which IEP goals were updated, and that referrals to a central CSE/CPSE, if necessary, are made in time to obtain a CSE/CPSE recommendation within the same timeframe. Because the District is transitioning to a system whereby elementary annual reviews are conducted in the first semester and middle/secondary annual reviews are conducted in the second semester, students who are moving from elementary school to middle school may go more than one calendar year between annual reviews during the transition so long as their IEPs are reviewed for appropriateness at the beginning of their first year in middle school and amended at that time if necessary, and their annual review is held during the second semester of that year. For purposes of this paragraph only, "calendar year" means within fourteen (14) months of the previous annual review.
8. CSE/CPSE recommendations will be produced and ready for

mailing within five (5) days of the CSE/CPSE meeting in 95% of the cases and within ten (10) days of the CSE/CPSE meeting in 100% of the cases. The date of production shall appear on the recommendation or the accompanying cover letter.
9. All CSE/CPSE recommendations shall be mailed within one business day after they are produced and dated.
10. "Legal" reasons for delayed recommendations, as defined in the document attached as Exhibit A, do not count in the calculations described in paragraphs 1.3. , 1.4. and 1.5. above.

II. TIMELY START OF NEW PLACEMENT, PROGRAM AND SERVICES.

1. Letters notifying parents of the location of their

child's special education program (placement letters, including

"Information Regarding Placement") will be produced and ready for

mailing within nineteen (19) days from the date of the CSE/CPSE

meeting so as to meet the following standards:

For School Year

Within 20 Days

Within 30 Days

1996-97

92%

100%

1997-98

96%

100%

1998-99

100%

100%

When a student is being classified as a student with a disability

and provided with special education services for the first time, no

placement letter will be deemed untimely if parental consent to

provision of services was not received by the District within

fifteen (15) days from the date of the CSE/CPSE meeting so long as

a placement letter is mailed no later than five (5) days after

receipt of parental consent or an impartial hearing decision.

2. Students placed or being placed in a District-operated

program will be placed, and all services on their IEPs will be in

place, within thirty (30) days from the CSE/CPSE meeting at which

the recommendation was made so as to meet the following standards:

For School Year

Within 30 Days

Within 40 Days

1996-97

92%

100%

1997-98

96%

100%

1998-99

100%

100%

3. The standards in paragraph II.1. and II.2. above will not

apply in cases where the placement is specifically designated by

the CSE to begin the following school year, such as: a) placements

recommended at annual review for the following school year; b)

placements recommended after the beginning of the fourth marking

period which require movement to a special class or different

school and the parents and the CSE agree that the student will be

maintained in his/her current placement until the end of the school

year. In the latter type of cases, where the CSE meeting was held

prior to May 15th, the District will document that placement

letters were mailed sufficiently prior to the end of the school

year to allow the parents to observe the proposed placement while

school is in session.

4. For students being placed in a privately-operated

program, the following standards apply:

a. The District will send all necessary information to

all private agency(ies) recommended by the CSE and to the State

Education Department (SED) within six (6) days of the CSE meeting at which the recommendation was made in 100% of cases.
b. If an appropriate private agency accepts the student and the placement will be available within sixty (60) days, the student will be placed (and any necessary transportation provided) within five (5) days in 95% of cases and within ten (10) days in 100% of cases. Time will be measured from the date of District receipt of the acceptance if the placement is immediately available and from the placement availability date if the placement will be available within sixty (60) days.
c. If an appropriate private agency does not accept the student or if the placement will not be available within sixty (60) days, the student's case will be returned to the CSE/CPSE within ten (10) days of District receipt of such notification in 95% of cases and within fifteen (15) days in 100% of cases for an alternative recommendation or other action to facilitate placement.
III. PARENTAL SATISFACTION 1. For at least the next three (3) school years, the District will conduct annually a statistically valid survey measuring attitudes of parents of students with disabilities toward the referral, evaluation, recommendation and placement processes. The survey shall allow parents to make narrative comments. The results of the survey shall be provided to plaintiffs' counsel. 2. At or immediately after each CSE/CPSE meeting, the District will provide parents with the "Parent Comment" survey now

in use (or its substantial equivalent). The information received from these surveys will be compiled and sorted by each Central Office or regional CSE/CPSE and will be provided to plaintiffs' counsel semi-annually.
3. The District will continue to consult with plaintiffs' counsel before making any changes to the parental rights notice attached hereto as Exhibit B.
4. The District will continue to instruct all CSE/CPSE and CSE/CPSE Sub-Committee members, on at least an annual basis, to provide parents with a blank IEP form at the beginning of all CSE/CPSE meetings to use in following along with the discussion at the meeting and to discuss each item on the IEP form at each CSE/CPSE meeting (other than those meetings scheduled for the purpose of changing only one or two specific items on the IEP).
5. The District will continue to instruct all administrative and instructional staff, on at least an annual basis, of their responsibility to advise parents of their right to request an impartial hearing or mediation if they disagree with any part of a CSE/CPSE recommendation (including all elements of the recommendation as defined by state regulation).
6. When a parent requests an impartial hearing, the hearing will be held and a decision mailed to the parents within thirty (30) calendar days of receipt of the request for a hearing for preschool-age children or within forty-five (45) calendar days of receipt of the request for a hearing for school-age children.
a. The District will take no action which would delay
10

the convening and completion of the impartial hearing, except when unforeseeable events occur, such as the illness of a critical witness.
b. The provisions of this paragraph apply regardless of whether the hearing will take place during the school year or during the summer.
c. The District will report twice a year to plaintiffs' counsel on the timeliness of impartial hearing decisions, including at least the following information:
i. the date the hearing was requested; ii. whether the hearing involved a CSE or CPSE issue; iii. the date the hearing was scheduled; iv. the date the hearing was held; v. whether an adjournment was granted and, if so, who requested the adjournment and for what reason; vi. the date the decision was mailed to the District; and vii. the name of the hearing officer. d. The District will be deemed to be in compliance with the requirements of this paragraph in cases where the hearing was held by the 20th (pre-school) or 35th (school-age) day after the request for a hearing was received, the District had clearly notified the hearing officer of the necessity of issuing a decision by the 30th (pre-school) or 45th (school-age) day and the consequences of failing to do so, and the District did nothing to
11

delay the issuance of a timely hearing decision. For hearings that would take place during the summer recess which involve students receiving 10-month programming, the District will be deemed to be in compliance with the requirements of this paragraph if the hearing decision is received in time for the student to be placed in accordance with the hearing decision on the first day of the upcoming school year.
IV. NONDISCRIMINATION AND EQUAL ACCESS 1. The District will not discriminate against students with disabilities in the areas of: a) provision of books, equipment, supplies and location and size of classroom space; or b) access to extracurricular activities (e.g., school sports, clubs and teams, student dramatic and musical performances and groups, student publications, student government, but not including activities such as school assemblies and dances). 2. Each school in the District shall conduct an annual selfreview in order to identify any different treatment of students with disabilities in area a) of paragraph IV.1. above and also to measure the relative rates of participation of students with and without disabilities in all extracurricular activities sponsored by the school. 3. The first self-review (covering the 1996-97 school year) shall be completed no later than June 30, 1997; thereafter, each self-review shall be completed no later than June 30th for the school year just ended. The methodology of the self-review shall
12

be uniform for all schools in the District, shall include the opportunity for input from staff, students and parents in some manner, and shall be developed in consultation with plaintiffs' counsel. Both the methodology and the results of the annual selfreview for each school shall be documented and shared with plaintiffs' counsel.
4. Any differences in treatment identified in the annual self-review in area a) of paragraph IV. 1. above which are not justified by non-discriminatory reasons shall be the subject of a corrective action plan by the school, which shall be shared with plaintiffs' counsel. The corrective action plan shall focus on removal of barriers (e.g., administrative, logistical, or physical) found to have caused the different treatment. The school shall include a report on progress on the plan in subsequent annual reviews.
5. With regard to extracurricular activities, if the annual self-review reveals a rate of participation of students with disabilities in extracurricular activities sponsored by a school and taken as a whole which is less than two-thirds (2/3) of the rate of participation of students without disabilities, the school shall include in its corrective action plan appropriate steps to encourage increased participation of students with disabilities in extracurricular activities.
6. With respect to such a plan, the parties acknowledge that participation of students both with and without disabilities in extracurricular activities is in part a matter of personal choice,
13

depending upon many factors, only some of which are within the school's sphere of influence or control. Therefore, any plan will take into consideration the following principles:
a. If a student with a disability can perform the essential functions or tasks required to participate in an extracurricular activity, the student is eligible for the activity and cannot be barred on account of his or her disability.
b. If a student with a disability is eligible for an activity but needs reasonable accommodation(s) (as defined by federal statutory, regulatory and decisional law) to participate, the District or school will provide the needed such reasonable accommodation(s).
c. All students should be encouraged to participate in extracurricular activities, but District staff shall have discretion within the law to determine the degree or level of participation of each student.
7. Based on the data derived from the District's first selfreview, the District shall consult with plaintiffs' counsel in an effort to develop mutually agreed upon disengagement standards. The standards will focus primarily on faithful performance of the annual reviews and development and implementation of corrective action plans designed to encourage increased participation of students with disabilities in extracurricular activities. If the parties are unable to agree, each party shall propose disengagement standards to the Magistrate Judge, who, after hearing the positions of both parties, will determine the appropriate disengagement
14

standards. 8. Students with disabilities presently receiving services
at an Option I (15:1) or lesser level (related services only, consultant teacher, resource room) shall be included in the Superintendent's academic performance benchmarks, a copy of which is attached as Exhibit C.
a. By June 1, 1997, the Superintendent, in consultation with plaintiffs' counsel concerning the composition and task of the committee, will convene a committee which includes an independent expert in special education standards to determine the extent to which inclusion in District academic performance benchmarks is appropriate for students with disabilities presently receiving services at Option II (12:1:1) or higher levels of service (Options III and IV, home and hospital instruction, agency placements, etc.). The committee will apply no presumption that the existing District benchmarks are not appropriate for all students with disabilities.
b. To the extent that the committee determines that the existing District benchmarks are inappropriate for any students with disabilities, the committee will develop alternative standards for improvement of academic/graduation/dropout outcomes for all students.
c. In order to be disengaged, students with disabilities will be meeting the applicable academic/graduation/ dropout benchmarks described in this paragraph to at least the same degree as students without disabilities.
15

9. The District will ensure that students with disabilities enrolled in general education or special education classes whose IEPs indicate that they are expected to achieve the goals of the general education curriculum, and who do not pass from one grade to the next (elementary) or who fail individual courses (middle and secondary), have an equal opportunity to participate in summer school to that afforded to students without disabilities and to receive reasonable accommodation(s) in the delivery of summer school instruction.
10. The District will ensure that high school students with disabilities who are working toward a local or Regents diploma are not educated in classes in which multiple academic courses are taught during a single class period to any greater extent than this is done for the same academic courses and in the same school for students without disabilities.
11. The District will collect and report to plaintiffs' counsel on the following statistics for each school and each special program within a school or independent of a school to which students are assigned by Central Office staff. A listing of all such schools and special programs will be included in the Implementation Plan.
a. The present total number of students in the school (excluding the special program(s)) and in each special program within the school, and the total number of students with disabilities in the school and in each special program with a calculation of the percentage of students with disabilities.
16

b. A profile of the students with disabilities in the school or special program showing:
i. the number of students at each level of service;
ii. the number of students with each type of disability;
c. the number of students without disabilities and number and profile of students with disabilities who applied for each special school or program during the 1996-97 school selection cycle;
d. the number of students without disabilities and number and profile of students with disabilities who were accepted for each special school or program during the 1996-97 school selection cycle;
e. the number of students without disabilities and number and profile of students with disabilities who actually enroll and participate in each school or program at the beginning of the 1997-98 school year.
12. The statistics referred to in paragraph IV.11.a. - d. will be provided to plaintiffs' counsel by June 1, 1997. The statistics referred to in paragraph IV.ll.e. will be provided to plaintiffs' counsel by October 1, 1997.
13. Based on the statistics to be provided by June 1, 1997, the District shall consult with plaintiffs' counsel in an effort to develop mutually agreed upon disengagement standards. The standards will focus on remedying any statistically significant
17

discrepancies that may exist between the participation of students with disabilities and students without disabilities in schools and special programs. If the parties are unable to agree, each party shall propose disengagement standards to the Magistrate Judge, who, after hearing the positions of both parties, will determine the appropriate disengagement standards.
14. The statistics described in paragraph IV.11. shall be provided annually at times to be set in the Implementation Plan.
15. The Superintendent and counsel for plaintiffs will present the results of this survey and their joint or respective recommendations to the group which the Superintendent is convening to make recommendations regarding changes in the school selection process. Any changes recommended to the Board of Education by that group will accommodate the changes and actions required as a result of the process described in paragraph IV.13. above.
16. The District will ensure that its procedures for publicizing, receiving and acting on requests for accommodations or complaints under Section 504 of the Rehabilitation Act (§504) and the Americans With Disabilities Act (ADA) include at least the following:
a. an annual statement in the District Calendar/Directory of information about the availability of §504/ADA accommodations and the method of requesting accommodations or lodging a complaint;
b. instructing appropriate staff at Central Office, home/hospital teachers, and staff at the schools on identification
18

of students with disabilities who may be eligible for services under S504/ADA and on how to assist parents in accessing the §504/ADA process;
c. establishment of a form to be used by all personnel, parents and students to initiate a §504/ADA request or complaint;
d. establishment of a form letter to parents and procedure for acknowledgment of receipt of a request or complaint, which includes full notification of due process rights;
e. establishment of a mechanism for gathering documentation of a student's disability and need for accommodations, including a mechanism for timely completion of any necessary evaluations;
f. establishment of a timetable and mechanism for periodic review and re-evaluation, upon notice to parents, including a mechanism for identifying students who will have surgery or other significant medical procedures or treatments during the summer and a procedure for reviewing the needs of such students before the beginning of school in the fall;
g. use of Accommodation Plans which remain in effect until a review or re-evaluation shows that the student no longer needs the accommodations;
h. a procedure which ensures that Accommodation Plans are mailed to parents with notice of their due process rights and instructions on how to take an appeal;
i. a mechanism to ensure that decisions regarding the needs of students with disabilities who are entitled to
19

accommodations under §504/ADA are made by a knowledgeable group of persons, and are made with parental involvement;
j. a procedure which ensures that notice of a proposed change or termination of an Accommodation Plan is mailed to parents with notice of their due process rights and instructions on how to take an appeal prior to the effective date of the proposed change or termination;
k. a mechanism for promptly referring students who appear to be eligible for services under the IDEA to the CSE, including making expedited CSE meetings available when appropriate;
1. provision of staff development for CSEs related to the appropriate identification and classification of "other health impaired" students and their needs;
m. instruction of decision-making staff on the need to individualize accommodations to meet the needs of the student; and
n. a mechanism for maintaining accountability for a student's performance with the student's school of attendance during periods when the student must receive temporary home or hospital instruction.
V. INCLUSION/LEAST RESTRICTIVE ENVIRONMENT 1. No later than May 15, 1997, the Superintendent will convene a committee, composed of District staff and one or more independent experts in inclusion, to develop a plan for inclusion to be completed by July 15, 1997. The plan will include appropriate interim timeframes and targets and a method of
20

reporting to plaintiffs' counsel on progress toward achieving those targets. The plan will enable the District to implement an inclusive IEP, in any school in the District, for every child for whom inclusion is an appropriate program by a date to be determined by the committee, but in any event no later than the 2001-2002 school year.
2. The expert to be selected will meet the following qualifications:
a. familiarity with the relevant federal and New York statutes and regulations concerning the identification and provision of special education services to students with disabilities;
b. substantial practical, field or consultant experience with the design and implementation of a program or system for the identification of, and provision of special education instruction and/or services to, students with disabilities in at least one large, urban school district with varied cultural and linguistic needs other than the Rochester City School District; and
c. practical, field or consultant experience with providing special education to students with disabilities in inclusive settings at the elementary, middle and secondary levels.
3. The Superintendent will consult with plaintiffs' counsel about the expert to be selected and concerning the composition and task of the committee. Plaintiffs' counsel shall have one seat on the committee.
21

4. The plan will be presented to the Superintendent, who

shall adopt it, with or without modifications, within 3 0 calendar

days of presentation.

Prior to adopting the plan, the

Superintendent will consult with plaintiffs' counsel regarding any

objections they may have to the plan. No later than 3 0 calendar

days after adoption by the Superintendent, any objections regarding

the legality or achievability of the plan may be referred by

plaintiffs' counsel, on notice to the District, to the Magistrate

Judge for resolution. Implementation of the plan shall begin prior

to the beginning of the 1997-98 school year.

5. Based on the plan, the District shall consult with

plaintiffs' counsel in an effort to develop mutually agreed upon

disengagement standards to be achieved by the end of the 1998-99 or

1999-2000 school year. If the parties are unable to agree, each

party shall propose disengagement standards to the Magistrate Judge

who, after hearing the positions of both parties, will determine

the appropriate disengagement standards. The District will report

annually to plaintiffs' counsel on its progress toward achieving

inclusion in a manner to be determined by the parties at the time

that the disengagement standards are negotiated.

6. The definition of inclusion will be the existing

District-approved definition, a copy of which is attached as

Exhibit D. An inclusive placement is one that meets all the

elements of the definition.

7. By the date established by the committee, but in any

event no later than the 2001-2002 school year, the District will

22

educate the majority of students with disabilities in inclusive settings and will integrate the operation of the general and special education systems.
8. During the 1997-98 and 1998-99 school years, the District will take all reasonable steps to ensure that all existing inclusive programs (including at least School #8 and School of the Arts), and those programs where inclusion experiments are taking place, receive the support to successfully implement inclusion and are used as demonstration sites to learn how inclusion works. By July 15, 1997, the District will develop a schedule and plan to make these sites successful inclusion sites (i.e., meeting the academic benchmarks, meeting equal access participation and enrollment benchmarks, meeting the District definition of inclusion, implementing appropriate inclusive IEPs) by the end of the 1998-99 school year.
a. Specific attention will be given in the plan to students presently attending School of the Arts and School #8 to ensure that inclusive IEPs are properly developed and fully implemented for the 1997-98 and 1998-99 school years.
b. With regard to School of the Arts, the plan will include, at a minimum:
i. a method for increasing enrollment in the high school (including ninth grade) of students with disabilities who require services at an Option I or more intensive level to a percentage of the total high school student population which reaches or approximates the percentages of such students found in
23

other District high schools; ii. a method for determining whether different or
additional staffing is needed to properly implement inclusive IEPs until such time as the number of students with disabilities enrolled in the high school who require services at an Option I or more intensive level reaches or approximates the percentages of such students found in other District high schools;
iii. a plan for providing such staffing as is determined to be necessary;
iv. a plan for developing IEPs for SOTA students which will identify each student's need for special education support throughout the school day, including any support needed if the student wishes to participate in extracurricular activities before or after school;
v. a plan for implementing each student's IEP and providing the necessary staff support;
vi. a plan for providing time for general education and special education staff involved with each student with disabilities to meet together on a regular basis;
vii. a plan for providing hands-on staff development for SOTA general and special education staff on an as-needed, individualized basis.
c. The Superintendent will fully support the on-going expansion and improvement of School #8 and School of the Arts as schools of inclusion.
9. The District shall immediately instruct all CSEs, CSE
24

Sub-Committees and SSS teams that students shall not be moved from

inclusive settings to self-contained settings, or vice versa,

without a CSE determination that such a change is appropriate. The

District shall immediately instruct the Supervising Directors of K-

8 and the high schools and all principals that neither inclusive

programs in their schools (such as "blended" classes) nor self-

contained special education classes in their schools may be

eliminated if the result will be that students with disabilities

cannot be maintained in their current educational program.

10. Placements of students with disabilities on home

instruction (including "home instruction" delivered in a location

outside of the home) shall be reduced so that on the average no

more than the following number of students with disabilities are

receiving home instruction during each month during the period from

September through June:

For School Year

Receiving Home Instruction

1996-97

80

1997-98

55

1998-99

35

11. The District will instruct the CSEs, on at least an

annual basis, as to the requirements of the surviving paragraphs of

the 1989 Consent Decree regarding limitations on placements on home

instruction (see Exhibit E, paragraphs 44-47, 50).

12. At the time that the CSE/CPSE recommends that any student

with a disability be placed, temporarily or permanently, on home

instruction, the CSE/CPSE shall develop a plan to move the student

25

to a less restrictive placement and shall also identify the date by which the student's case will be returned to a Central Office CSE for review and consideration of movement to a less restrictive placement. A Central Office CSE shall review the case of each student with a disability receiving home instruction at least once each school year.
13. The District shall provide to all teachers information regarding strategies and techniques to address the behavioral problems of students with disabilities and will make available to teachers at the school level one or more designated knowledgeable individuals with whom teachers may consult regarding such strategies and techniques. No student with a disability shall be placed on home instruction solely because of the student's behavioral problems unless the student's teacher has first attempted to use behavior management strategies and techniques appropriate to the particular circumstances, except in an emergency. Nothing in this paragraph is intended to modify the rights and responsibilities governing disciplinary action under the Michael T. Consent Decree.
14. The parties will meet and mutually agree upon the deployment and changing roles of the E.D. support teachers and cadre teachers created by the 1983 and 1989 Consent Decree during the transition to inclusion.
15. The District will make substantial efforts to develop placement options for students with disabilities who would otherwise be recommended for agency placement designed to avoid
26

temporary placements of these students on home instruction and/or delays of more than 60 days in making agency placements.
VI. DISCIPLINE 1. The District will abide by and implement the existing provisions of the Michael T. Consent Decree unless and until any changes to its provisions are negotiated with plaintiffs' counsel. 2 . The District will provide students with disabilities with equal access to the Weapons Diversion Program when the CSE recommends the student's participation in the program. Students with disabilities shall not be required to attend the Tutoring Center in order to participate in the Weapons Diversion Program. 3. The District will instruct the CSEs and the building principals regarding the existing requirements of the Michael T. Consent Decree and their responsibilities with regard to enforcement. 4. The parties agree to meet, within one month of the signing of this Consent Decree, to discuss how to effectively achieve implementation of the early intervention provisions of the Michael T. Consent Decree and/or decide what changes, if any, are necessary to ensure that meaningful early intervention takes place or to otherwise improve the effectiveness of the Consent Decree.
VII. IMPLEMENTATION PLAN 1. By July 3, 1997, the District shall submit to plaintiffs' counsel and the Court a detailed plan for implementation of all
27

provisions of this Consent Decree. The Implementation Plan shall specifically address, among other things:
a. developing and sustaining adequate management and staff capacity with enough time and resources to ensure implementation;
b. a cost analysis and identification of financial resources to support implementation;
c. developing a mechanism for educating all staff who have responsibility for implementing this Consent Decree about the provisions of the Consent Decree and their particular responsibilities under it; and
d. a timetable for achieving implementation with appropriate interim timeframes and targets;
2. If plaintiffs' counsel have any questions about or objections to the Implementation Plan, the parties shall meet in order to clarify the questions or attempt to resolve the objections. If the parties are unable to reach agreement by July 18, 1997, the unresolved objections may be brought by plaintiffs' counsel before the Magistrate Judge within thirty (30) days.
VIII. ACCOUNTABILITY 1. The Superintendent shall be responsible for the overall implementation of this Consent Decree. The Superintendent will designate one individual who will be responsible for supervising and coordinating all aspects of implementation, for resolving any inter-departmental conflicts which arise in implementation, for
28

providing all monitoring information, and for responding to issues raised by plaintiffs' counsel regarding implementation. This individual will be provided sufficient authority, time and staff to accomplish these responsibilities.
2 . The Supervising Directors of K to 8 and the high schools shall be responsible for: a) provision to each school within his or her jurisdiction in a timely manner of resources sufficient to meet the aggregate needs of students with disabilities in each school; b) supervision and evaluation of principals under their jurisdiction in the performance of their responsibilities under this Consent Decree; c) implementation of non-discrimination and equal access provisions affecting access to special schools and programs within schools to which students are assigned by Central Office staff, including summer school; d) implementation of the District-wide inclusion plan in the schools under their jurisdiction; e) supporting existing inclusive programs in the schools under their jurisdiction; f) projecting and ensuring that spaces for placement of special education students are available in the schools under their jurisdiction; and g) ensuring that all staff development required by this Consent Decree occurs.
3. Principals shall be responsible for: a) reserving spaces in the school for placement of students with disabilities; b) implementation of the non-discrimination and equal access provisions of this Consent Decree as they apply to the school; c) supervision and evaluation of teachers, psychologists, social workers, related service providers, and other personnel in their
29

school in the performance of their responsibilities under this Consent Decree; d) maintaining existing inclusive and/or special class programs within their schools as required under this Consent Decree; e) delivery to the Clerk of the CSE in a complete and timely manner the necessary evaluation materials for each student in the school who is referred to the CSE/CPSE; f) implementation of the IEP or section 504 Accommodation Plan of each student with a disability in the school; g) implementation of the District-wide inclusion plan as it applies to the school; h) completion of timely triennial reviews, annual reviews, and (for students moving from elementary to middle school) beginning of the school year reviews for each student with a disability in the school who requires any or all of these; and i) implementing the school-based provisions of the Michael T. Consent Decree.
4. General and special education teachers shall be responsible for the academic achievement of students with disabilities in the classes they teach and the implementation of the relevant portion(s) of the IEPs of students with disabilities in the classes they teach.
5. Psychologists, social workers, related service providers, nurses and other personnel involved in evaluating students referred to the CSE/CPSE, as well as non-District evaluators of preschool children, shall be responsible for the performance of their evaluation tasks in a complete, competent and timely manner.
6. The Supervising Director of Student Support Services shall be responsible for: a) scheduling and conducting timely
30

CSE/CPSE meetings; b) allocation and re-allocation among schools of all evaluative staff, including bilingual evaluative staff, as needed to ensure compliance; c) supervision and evaluation of "cadre" teachers and Coordinating Administrators of Special Education; d) timely production and mailing of CSE recommendations and producing and mailing IEPs in a proper and timely manner; e) timely processing of agency placements and returning cases to CSE/CPSE in timely manner when necessary; f) implementation of the provisions regarding reduction of the number of students with disabilities placed on home instruction; g) implementation by the CSEs of the requirements of the Michael T. Consent Decree; and h) disseminating and collating information from parent surveys.
7. The Director of Student Affairs and Placement shall be responsible for: a) timely production and mailing of placement letters; b) placing students with disabilities into District-based programs in a timely manner; c) implementing provisions regarding fourth marking period placement of students with disabilities; d) timely placement of students accepted by agencies; and e) implementation of the long-term suspension provisions of the Michael T. Consent Decree.
8. The Supervising Director of Curriculum and Instruction shall be responsible for: a) disseminating information to schools and teachers regarding academic and other benchmarks for students with disabilities; b) developing, in conjunction with the Supervising Director of Student Support Services, placement options as alternatives to agency placement; and c) implementation, in
31

conjunction with the Supervising Director of Student Support Services, of the first sentence of paragraph V.13. of this Consent Decree.
9. The District's General Counsel shall be responsible for: a) developing, in conjunction with the Director of Research and Evaluation, a methodology for the schools' non-discrimination and equal access self-reviews; b) timely scheduling of impartial hearings; c) implementation of the provisions of this Consent Decree regarding section 504/ADA accommodations and procedures for students; and d) timely processing of plaintiffs' counsels' attorneys' fees.
IX. DISENGAGEMENT 1. In order to be disengaged from this class action, the District must achieve or substantially achieve each of the disengagement standards in paragraphs 1.3., 1.4., 1.5., 1.8., II.1., II.2., II.4.b., II.4.c, III.6., IV.2., IV.4., IV.7. (to be developed), IV.8.c. (to be developed), IV.13. (to be developed), V.5. (to be developed), and V.10. "Disengagement" shall mean termination of Court supervision and dismissal of this class action. 2. Annually, no later than August 31st, the District shall file a report with the Court and with plaintiffs' counsel describing its progress in meeting the disengagement standards. At the request of the Court or of plaintiffs' counsel, counsel for the parties shall meet with the Court no later than September 3 0th to
32

discuss progress toward meeting the goals for disengagement as of the fiscal year ended the previous June 3 0th.
3. The District shall be eligible to be disengaged and may make a motion to end Court supervision and dismiss this class action, based on the grounds that the disengagement standards have been substantially achieved and there is a probability that the District will continue to meet those standards, thirty (30) days after the report (referenced in paragraph IX.2. above) for the 1998-99 school year has been filed, or at any time thereafter. Any such motion shall be made upon thirty (30) days notice to plaintiffs' counsel.
X. MONITORING 1. The District shall create a monitoring system as set forth below that will allow both District staff and plaintiffs' counsel to accurately and timely assess the District's and the individual schools' progress toward meeting their obligations under this Consent Decree. This monitoring system will be established within six months of the signing of this Consent Decree. 2. For each of the following areas in which the District must achieve certain standards in order to be disengaged, as described in paragraph IX.1. above, the District shall, in consultation with plaintiffs' counsel, develop a format for reporting progress toward meeting the standards and shall submit such reports to plaintiffs' counsel periodically, as indicated below:
33

a. timeliness of CSE meetings and recommendations -monthly with an annual summary;
b. timeliness of CPSE meetings and recommendations -monthly with an annual summary;
c. timeliness of bilingual CSE and CPSE meetings and recommendations -- monthly with an annual summary;
d. timeliness of producing CSE/CPSE recommendation letters -- monthly with an annual summary;
e. timeliness of producing CSE/CPSE placement letters to parents -- monthly with an annual summary;
f. timeliness of placement in District-operated programs and provision of District-delivered services on IEP (single date) -- monthly with an annual summary;
g. timeliness of placement in non-District agencies -monthly with an annual summary;
h. timeliness of return to CSE for review when placement in non-District agency is not available within 60 days -bi-monthly with an annual summary;
i. number of students receiving temporary or permanent home instruction -- monthly with an annual summary;
j. the information with respect to impartial hearings set forth in paragraphs III.6.C. above -- twice a year on August 30th and February 28th;
k. self-review results regarding non-discrimination and equal access -- annually, no later than July 15th;
1. corrective action plans regarding non-discrimination
34

and equal access -- annually, no later than September 15th; m. progress toward meeting disengagement standards
related to non-discrimination and equal access within schools-annually, no later than September 1st;
n. information regarding schools and programs of choice as set forth in paragraphs IV.11. and 13. above and information regarding progress toward meeting action plan goals and disengagement standards related to equal access to all District schools and programs -- annually, at times to be set in the Implementation Plan;
o. progress of students with disabilities toward meeting academic/graduation/dropout benchmarks -- annually, no later than September 1st; and
p. progress toward achieving inclusion as required by paragraph V.5. above.
3. The District shall submit the reports described in paragraph X.2.(a)-(j) and (n)-(p) above for a period of two (2) years after the effective date of disengagement.
4. In addition to the foregoing reports, the District shall provide plaintiffs' counsel through the effective date of disengagement with copies of the following materials periodically, as indicated below:
a. results of the "Parent Comment Survey" -- twice yearly on August 30th and February 28th;
b. results of the District's annual survey of parental satisfaction -- annually, no later than October 15th;
35

c. minutes of the following types of CSE meetings -within 30 days of such meetings:
i. for students being re-reviewed by the CSE because a previous CSE recommendation for a non-District agency placement could not be implemented within 60 days;
ii. for students recommended to be placed or continued, temporarily or permanently, on home instruction;
iii. for students referred to the Superintendent for further disciplinary action;
d. executed Withdrawal of Referral forms -- within 30 days of receipt by Central Office;
e. documentation that the IEPs of students with disabilities who moved from elementary to middle school were reviewed at the middle school at the beginning of the school year and revised, if necessary - - b y October 15th;
f. documentation that students not placed because recommendations were made after the beginning of the fourth marking period were maintained in their then-current programs and placements and received timely placement letters -- by July 15th;
g. documentation that the section 504/ADA procedures have been established and implemented -- by July 15th;
h. documentation that high school special education classes for students with disabilities seeking a local or Regents diploma do not encompass multiple courses being taught during the same class period -- each semester, one month after the semester begins;
36

i. documentation that behavior management consultants have been designated and are serving in schools on as-needed basis - - b y July 15th (beginning in 1988) ;
j. documentation of progress toward development of alternative placement options for students otherwise in need of agency placements - - b y July 15th (beginning in 1998);
k. documentation of progress toward meeting interim targets set in Implementation Plan -- by July 15th (beginning in 1998);
1. documents submitted to the Board of Education which relate to obligations encompassed by the Consent Decree or to development or enactment of special education policy, generally within two (2) weeks of the date of such submission, but in any case at least one (1) week before any Board action is taken regarding such matters or, if such documents are submitted to the Board less than one week before a meeting, simultaneously with delivery to the Board;
m. minutes and resolutions of the Board of Education resulting from any official open meeting of the Board which relate to obligations encompassed by the Consent Decree or to special education policy, within thirty (30) days of the date of such meeting;
n. documents directed to Central Office or school staff which include information or instructions relating to obligations encompassed by the Consent Decree or to requirements of laws, regulations or Board policy regarding special education, within two
37

(2) weeks of the date of distribution; o. documents (in any form) exchanged between the
District and either the U.S. or New York State Departments of Education which relate significantly to special education, including: (i) conclusions (however labeled) of compliance reviews and resolutions (however labeled) thereto; ii) pleadings in judicial or administrative proceedings; (iii) applications for variances and/or mandate relief and determinations with respect thereto; (iv) statistical reports; and (v) other correspondence from the Departments of Education, but not including documents relating to concerns raised regarding only an individual student, within two (2) weeks of their sending or receipt by the District;
p. non-disciplinary grievances which relate significantly to special education submitted to the District by the Rochester Teachers Association or the Association of Supervisors and Administrators of Rochester on behalf of their members, solely for the purpose of communication with counsel for the District exclusively regarding any perceived impact on this Consent Decree, and the final resolutions thereto (including arbitration decisions), within thirty (30) days of their receipt by the District; and
q. information as to whether students with disabilities are scheduled for courses at the same time and through the same process as their peers, annually by July 15th.
5. The District shall provide plaintiff's counsel, within 3 0 calendar days of plaintiffs' counsel's written request, of evidence
38

of compliance or progress toward compliance, to the date of the request, with all other obligations of the Consent Decree not covered by the reports and copies listed above, in a form satisfactory to plaintiffs' counsel. This obligation shall be operative through the effective date of disengagement.
6. If District counsel believes a document is protected by a privilege, a brief description of the document will be provided to plaintiffs' counsel on the date that the information is due with an explanation of why it is believed to be privileged. Any disputes which cannot be resolved will be brought before the Magistrate Judge.
7. The District will annually create, and share with plaintiffs' counsel, a staff development plan covering all the areas of staff development necessitated by this agreement (including areas such as inclusion and equal access which flow from this agreement). The District will annually tabulate the number and type of staff trained in the various areas and provide this tabulation annually to plaintiffs' counsel. This obligation shall be operative through the effective date of disengagement.
XI. PRESERVATION OF INDIVIDUAL AND DISTRICT RIGHTS 1. Nothing in this Consent Decree shall be construed to waive any procedural or substantive rights pertaining to special education granted any child or parent by state or federal law or regulations, or any remedies otherwise available to the New York State Education Department or the United States Department of
39

Education. Nor shall anything in this Consent Decree be construed to waive any defenses available to the District in any case covered by this paragraph.
2. At any time prior to disengagement, plaintiffs may bring a motion to enforce the provisions of this Consent Decree if the District fails significantly to carry out any of its obligations under the Decree and has no adequate plan to correct the violation(s) of the Decree within a reasonable period of time.
3. In the event of a change of law or regulation governing special education at any time prior to disengagement, either party may propose an alteration of this Consent Decree which would faithfully reflect the change through the following process:
a. Counsel for the party proposing the change will provide a written notice of the proposed change to counsel for the other party. The written notice must contain the actual language of the proposed new provision, the existing language proposed to be deleted (if any), the section of the Consent Decree to be changed, and the citation to the new law or regulation the party believes supports the proposed change.
b. If counsel for the party receiving the notice of proposed change believes that the proposed provision does not faithfully reflect the change of law or regulation, that the proposed method of implementing the change is unlawful, or that the change of law or regulation itself is unlawful, counsel shall advise counsel for the party proposing the change in writing of the basis for that belief within fifteen (15) days of the date of the
40

notice of proposed change. c. If, pursuant to subparagraph b. above, an objection
to a proposed change is timely interposed, the District shall not implement the proposed provision for an additional fifteen (15) days. During that period counsel for the parties shall meet within ten (10) days and negotiate in good faith to resolve the objection.
d. If either no objection is interposed or the parties resolve the objection, counsel for the party proposing the change shall promptly notify the Court in writing of the agreed change and shall request that the Court approve the change and order that the Consent Decree be amended accordingly. The District may implement the proposed change while awaiting Court approval.
e. If an objection is not resolved, counsel for the party proposing the change may make an application to the Magistrate Judge to resolve the dispute. The application shall be in writing and upon reasonable notice to counsel for the party opposing the change. The application may be made either by letter or by motion. During the pendency of an application, the District shall not implement the proposed provision to be substituted. The Magistrate Judge will hear and determine the application based on the standards set forth in subparagraph b. above as quickly as possible. Plaintiffs' counsel shall be entitled to attorneys' fees for time spent on negotiations and the application only if they are "prevailing parties" on the application.
4. At any time prior to disengagement, in any case not covered by the preceding paragraph, either party may make a motion
41

pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for appropriate relief.
XII. SURVIVAL OF PREVIOUS ORDERS 1. This Consent Decree shall supersede and replace the provisions of the 1989 Consent Decree and the 1993 Enforcement Order except those provisions listed in Exhibit E, which shall survive and are incorporated by reference herein.
XIII. ATTORNEYS' FEES 1. Plaintiffs' counsel shall submit to the District's counsel time sheets and bills for time spent monitoring compliance on a monthly basis. Bills for each month shall be mailed by the tenth (10th) day of the following month. Time spent by plaintiffs' counsel serving on the inclusion committee described in paragraph V.I. shall not be counted as time spent monitoring compliance. 2. The District shall either pay each bill as submitted or raise any objections it may have to the bill within thirty (30) calendar days of receipt of the bill. If only a portion of the bill is objected to or in dispute, the District shall pay the portion which is not in dispute within thirty (3 0) calendar days of receipt. 3. If the District fails to pay any undisputed portion of a bill within thirty (30) calendar days of receipt of the bill, interest shall be added to the amount due at the prevailing federal rate, effective the fortieth (40th) calendar day after the bill in
42

question was mailed by plaintiffs' counsel to the District. 4. If objections to a bill are raised, counsel for the
parties will meet and attempt to resolve the dispute within ten (10) calendar days after the objections were raised. Any disputes not resolved by the parties may be brought by plaintiffs' counsel before the Magistrate Judge.
5. Plaintiffs' counsel shall continue to make every effort, consistent with their professional responsibility to the plaintiff class, to minimize the time spent and fees billed to the District. The hourly rate billed for attorney time by plaintiffs' counsel through June 30, 2 000 shall not exceed $165 and for non-attorney time shall not exceed $90. Not later than January 1, 1998, counsel for the parties shall meet and agree upon the maximum fees for routine monitoring to be billed in future fiscal years.
6. Plaintiffs' counsel shall not be entitled to, and the District shall not be liable for, attorneys' fees for time spent monitoring compliance with this Consent Decree after the effective date of disengagement.

Dated:

i
*_•

ELIZABETH L. S
BRYAN Vi. HETHERINGT0N\T ESQ. PUBLIC INTEREST LAW OFFICE OF
ROCHESTER 80 St. Paul Street Suite 701 43

Dated:
Dated:

Rochester, New York 14604 Tel.: 716-454-4060
orneys for Plaintiffs
IS N. KASH, ESQ. OCHESTER CITY SCHOOL DISTRICT 131 West Broad Street Rochester, New York 14614 Tel.: 716-262-8412
Attorney for Rochester City School District
CLIFFORD SUPERINTENDENT OF SCHOOLS ROCHESTER CITY SCHOOL DISTRIC

IT IS SO ORDERED.

Dated:

May 1, 1997 Rochester, New York

Hon. Michael* A. Telesca United States District Judge

44

REASONS FOR RESCHEDULED MEETINGS
ILLEGAL REASONS
No Packet No Packet -- 2nd Instance Incomplete Packet -- OT/PT Evaluation Incomplete Packet -- Classroom Observation Incomplete Packet -- Physician Report Incomplete Packet -- Health Report Incomplete Packet -- Bilingual Report Incomplete Packet -- Social History Incomplete Packet -- Psychological Report Incomplete Packet -- S/L Report Incomplete Packet -- Multiple Reports Incomplete Packet -- Counseling Report No School Representation No School Representation and No Packet No School Representation and Incomplete Packet Student Absence -- Shelter/Jail CSE Not Held -- Absent Member Parental Notification of Meeting Not Received Consent to Test Not Valid Parents Did Not Receive Summary (Preschool only) Folder Missing or Misfiled Insufficient Time to Complete Meeting
LEGAL REASONS Student Absence -- Illness (more than 15 days) Student Absence -- Truancy (documented -- more than 15 days) Student Absence -- In-District Transfer (more than 1 transfer in 3 0
days) Additional Information Requested Parent Request for Reschedule Appointment Not Kept for Testing (summer only) Independent Evaluation Requested Review Student Progress in Program CSE Not Held -- Office Closed Meeting Scheduled in Error Split Vote Among Committee

Rochester City School District

RIGHTS OF PARENTS IN THE COMMITTEE ON SPECIAL EDUCATION PROCESS

State and federal laws list the steps which a school district and parents must follow in developing an appropriate educational program for a student with a disability. They also list the rights of parents and students involved in the Committee on Special Education (CSE1 process. Free or low cost legal and/or other relevant services are available at the following places or other places of your choice:

Youth Advocacy Program of the Legal Aid Society
65 West 8road Street (14614)
232-4090

Association for the Learning Disabled of Genesee Valley
259 Monroe Avenue (14607) 263-3323

Public Interest Law Office of Rochester 80 St. Paul Street Rochester, New York (14604)
454-4089

The Advocacy Center Medical Arts Building
277 Alexander Street, Suite 500 Rochester, New York (14607) 546-1700

The following outline summarizes your rights:

I. REFERRAL AND EVALUATION PROCESS

• Once a written request for evaluation (referral) has been received by your child's school, within 40 school days, the District must:

- get your written consent for the evaluation
- complete the evaluation - make a recommendation for your child's classification, placement and
program
- If the evaluation and recommendation are not completed within 30 school days after your consent, you may request a hearing.

- You have the right to meet with the CSE when the recommendations concerning your child are discussed.

- You have the right to see all of your child's school records, tests and reports and to have them explained to you. You may have copies of anything in your child's records at 10 cents per page. The cost can be waived if necessary.

• If you disagree with the results of the evaluations which were done by the District, you have the right to get an independent evaluation, which the CSE must consider. You may get an independent evaluation at one or more of the following places or other places of your choice:

Anthony L. Jordan Health Center 82 Holland Street (14604) 423-2800

The Halpern Educational Center 1425 Portland Avenue (14621) 544-5220

RIGHTS.00C Oct 24, 1996

131 West Broad Street • Rochester. New York 14614 - (716) 262-8100

ir

iT\ T

irU J

Crestwood Children's Center 2075 Scottsville Road (14623) 436-4442

Strong Memorial Hospital Diagnostic Clinic for Developmental Disorders 601 Elmwood Avenue (14620) 275-2986

St. Mary's Mental Health Center 835 West Main St. (14611) 436-4840

Wilson Health Center 800 Carter Street (14621) 338-1400

- You have the right to an independent evaluation paid for by the City School District. If you want the school district to pay for this independent evaluation, you may ask the CSE to pay for it at the CSE meeting. If you did not ask the District to pay for it at the CSE meeting, you should notify the CSE in writing of your request and the CSE will schedule a expedited meeting to discuss your request. The CSE may decide at its meeting that an independent evaluation at no cost to you is appropriate, or the CSE may request a hearing to determine if the District's evaluation is appropriate. If the hearing officer determines that the District's evaluation is appropriate, the independent evaluation will not be paid for by the District. Therefore, it is advisable to get CSE approval before going ahead with the evaluation. The CSE will review any independent evaluation, regardless of who pays for it.
II. COMMITTEE ON SPECIAL EDUCATION RECOMMENDATION
- The CSE recommendation concerning your child must include:
- whether or not your child has an educational disability
- the notice of your due process rights
• If your child is found eligible for special education, the CSE must state:
- Your child's classification (type of educational disability); - Your child's present levels of performance and needs in eacn of these
areas: academic or educational achievement; social development; physical development, and management needs; - The annual goals, instructional objectives, strategies and method of evaluation for your child; - The proposed placement of your child, including the type of program and class size; - Any related services (such as physical therapy, speech therapy or transportation) your child will be given; - The date that special education and related services will begin, the amount of time per day that your child will receive such services and the
Broposed date for review of your child's needs; helher your child's program will last ten months or twelve months; - The extent to which your child will participate in general education programs; - Any specialized equipment and/or adaptive devices your child requires (such as braille typewriter, calculator): - Any testing modifications your child will need; - A list of the tests or reports on which the recommendation is based; - For a child age 15 or older, the transition services (to promote movement from school to post-school activities) needed by the child (such as special instruction, community experiences, developing employment skills and/or acquiring daily living skills).

RIGHTS.DOC
Oct 24, 1996

- If your child is being placed in Special Education for the first time, you must indicate that you agree with that recommendation by signing page 1 of your child's IEP (Individual Education Plan).
- If your child is found not eligible for special education (no educational disability), the CSE must state the reasons s/he was found not eligible.
III. INDIVIDUALIZED EDUCATIONAL PROGRAM (IEP)
- Every child with an educational disability must be provided with special programs and/or services according to a written IEP.
- Your child's IEP is developed in your meeting with the CSE and is part of the CSE recommendation. It includes your child's classification, class size, type and location of program, specific special education and related services to 6e provided, duration of program (10 nraihth or 12 month), present levels of educational performance and needs, annual goals, short term objectives, extent of participation in general education programs, any special need for transportation, any special testing procedures or equipment to be used, and the way your child's progress toward meeting the IEP goals will be measured and reported to you.
Your child's IEP must be reviewed and modified, if necessary, at least once a year. You have the right to participate in this review. Your child has the right to a complete evaluation at least once every three years.
- AT ANY TIME, YOU MAY ASK FOR A REVIEW OF YOUR CHILD'S IEP, OR HIS/HER CLASSIFICATION AND/OR PLACEMENT. To do so, you should write to your child's principal or the CSE Chairperson (131 West Broad Street Rochester, New York 14614)
IV. PLACEMENT AND SERVICES
• If you agree with the CSE recommendation, the District must place your child in the recommended program and provide the recommended services within 30 school days from the date of the recommendation.
- If the District fails to provide your child with the recommended programs and services within 30 school days, you may request a hearing.
V. MEDIATION
If you disagree with the recommendation of the Committee on Special Education, you may request mediation or you may request an impartial hearing. A mediation meeting is an informal meeting where you and a representative of the district come together with an independent mediator to agree upon possible ways to address concerns and resolve disagreement that both you and the district may have regarding your child's educational program. Mediation meetings will take place at the convenience of you, the district representatives and the mediator, and will be conducted by the Rochester Center for Dispute SettlementParticipation in mediation is a choice which is available to you. Choosing to participate in mediation does not limit other alternatives you have, such as requesting a meeting with CSE or requesting an impartial hearing, which you may do at any time. Requesting mediation places no restriction on your right to initiate an impartial hearing. Mediation may be requested by sending a written request to the Committee on Special Education.
RIGHTS.DOC Oct 24, 1996

VI. DUE PROCESS RIGHTS
If you disagree with any part of the CSE recommendation, you may request a hearing. This must be done in writing to the CSE and should be done as soon as possible after you receive the letter of recommendation.
- You may get an independent evaluation, as described on pp. 1-2.
- You may be able to get free or low cost legal and/or other relevant services, as described on page 1.
• If you are represented by an attorney at an impartial hearing, or in a subsequent appeal to the State Review Officer or to a court, and if your appeal is successful, your reasonable attorney's fees may be paid by the City School District.
• IF YOU REQUEST A HEARING, YOUR CHILD HAS THE RIGHT TO REMAIN IN HIS/HER PRESENT EDUCATIONAL PROGRAM AND TO CONTINUE TO RECEIVE ALL SPECIAL SERVICES UNTIL THE HEARING AND ANY APPEALS ARE FINISHED, UNLESS THE CITY SCHOOL DISTRICT AND YOU BOTH AGREE TO A CHANGE.
• If your child is applying for admission to the City School District schools for the first time, s/he has the right to be placed in a public school program until the hearing and appeals are finished.
• At the hearing, you have the following rights:
- An impartial hearing officer - A written or tape recorded record of the hearing - To present your own witnesses and evidence and to question the
District's witnesses - To have witnesses subpoenaed by the hearing officer - To have a foreign language or sign language interpreter, if needed - To be represented or helped by a lawyer or someone who knows about
the problems of children with disabilities (see agencies listed on page 1) - To bring anyone you wish with you - To have a private hearing unless you want it to be open to the public - To be told about all evidence the District is goinq to use at
least 5 school days before the hearing; you must advise the District about your evidence at least 5 school days before the hearing - To keep out any evidence you weren't told about; the District may keep out any evidence it was not told about - To decide whether your child will attend the hearing or not
- The hearing officer must inform you of his/her decision within 45 calendar days from the date ydu requested the hearing.
• The hearing officer's decision must be based only on evidence from the hearing and must state the reasons and facts upon which it is based.
- If you disagree with the hearing officer's decision, you may appeal to the State Review Officer of the Education Department, who must decide your appeal within 30 calendar days.
• If you disagree with the State Review Officer's decision, you have the right to file a lawsuit in state or federal court.
RIGHTS.DOC Oct 24, 1996

Rochester City School District RIGHTS OF PARENTS IN THE COMMITTEE ON PRESCHOOL SPECIAL EDUCATION PROCESS

State and federal laws list the steps which a school district and parents must follow

ailnsdoevleilsotpitnhge

an appropriate educational program for a child rights of parents and students involved in the

with a disability. They Committee on Preschool

Special Education (CPSE) process. Free or low cost legal and/or other relevant services

are available at trie following places or other places of your choice:

Youth Advocacy Program of the Legal Aid Society 65 West Broad Street (14614) Z32-4O9O

Association for the Learning Disabled of Genesee Valley 259 Monroe Avenu-o (14607) 263-3323

Public Interest Law Office of Rochester 80 St. Paul Street (14604) 454-4089

The Advocacy Center Medical Arts Building 277 Alexander Street, Suite 500 (14607) 546-1700

The following outline summarizes your rights:

I- REFERRAL AND EVALUATION PROCESS

- Once a written request for evaluation (referral) has been received the District must:

- inform you of your choice of evaluation sites - get your written consent for the evaluation and your selection of an
evaluation site - assist you in arranging for an evaluation - provide you with a copy of the summary of the evaluation prior to the CPSE
meeting - make a recommendation for your child's classification, placement and
program
• If your child is being referred to the Committee on Preschool Special Education for the first time, you must give written permission, or consent, to complete any testing. You have the right to withhold your consent for this evaluation. This consent will remain in effect throughout the time that your child receives special education services.

• The evaluation must be completed and a CPSE recommendation must be made within 30 school days of receipt of your consent and choice of evaluator. If the evaluation and recommendation are not completed within 30 school days after your consent, you may request a hearing.

• You have the right to meet with the CPSE when the recommendations concerning your child are discussed.

- You have the right to see all of your child's school records, tests and reports and to have them explained to you. You may have copies of anything in your child's records at 10 cents per page. The cost can be waived if necessary. Upon your request, the evaluator must provide you with a copy of the recommendation which the evaluator provided to CPSE. The CPSE must provide you with a summary of the findings of the evaluation. Upon your request, CPSE must provide you with a copy of al1 written reports to be considered by the CPSE in making its recommendation. If you disagree with the results of the evaluations, you have the right to get an independent evaluation, which the CPSE must consider. You may get an independent evaluation at one of the following places br other places of your choice:

PSRIGHTS.DOC OcL 24, 1996-

1
131 West Broad Street - Rochester, New York 14614 • (716) 262-8100

Rochester City School district Twixt Three and Five 30 Hart Street (14605)
262-8968

BOCES I - Early Chila..uod Assessment Team 41 O'Connor Road, Room R-10 Fairport. NY <1*450) 383-2230

BOCES II - PS Diagnostic Office Crestwoad Children's Center

3599 Big Ridge Road

2075 Scottsville Road (14623)

Spencerport, NY 14559

436-4442

352-2736

Hearing and Speech Center 1000 Elmwood Avenue (14620) 271-0680

Mary Cariola Children's Center

1000 Elmwood 271-0761

Avenue V(14620)

Rochester School for the Deaf 1545 St. Paul Street (14621) 544-1240

United Cerebral Palsy Preschool 3399 Winton Rd. South (14623) 334-6000

Rochester Children's Nursery
941 South Avenue (14620)
473-2858
Stepping Stones Learning Center 41 Colebrook Drive (14617) 467-4567

East Irondequoit Pardee School - PreK
119 Brockley Rd. (14609)
336-7035

- You have the right to an independent evaluation paid for by the City School

District. If you want the school district to pay for this independent evaluation

you may ask the CPSE to pay for it at the CPSE meeting. If you did not ask the

District to pay for it at the CPSE meeting, you should notify the CPSE in writing

of your request and the CPSE will schedule a special expedited meeting to discuss

your request- The CPSE may decide at its meeting that an independent evaluation

at if

nthoecDositsttriocty'o5u

is appropriate, or the CPSE evaluation is appropriate.

may request a If the hearing

hearing officer

to determine determines

that the District's evaluation is appropriate, the independent evaluation will not

be paid for by the District. Therefore, it is advisable to get CPSE approval

before going ahead with the evaluation. The CPSE will review any independent

evaluation, regardless of who pays for it. CPSE may decide to obtain additional

evaluations prior to making any recomrnendations.

II. COMMITTEE ON PRESCHOOL SPECIAL EDUCATION RECOMMENDATION

- The CPSE recommendation concerning your child must include: - whether or not your child has an educational disability - the notice of your due process rights

• If your child is found eligible for special education, the CPSE must state: - Your child is a Preschool Student with a Disability - The nature of your child's disability - Your child's present levels of performance and needs in each of these areas: cognitive functioning; social development; physical development; and management needs ' - The annual goals, instructional objectives and method of evaluation for your child - The extent to which your child will receive special education services in a setting that includes children without disabilities and an explanation of why the setting chosen for your child's services is the least restrictive environment appropriate for your child. - Any related services (such as physical therapy, speech therapy or transportation) your child will be given - The date that special education and related services will begin, the amount of time per day that your child will receive such services and the proposed date for review of your child's needs
- whether your child's program will last ten months or twelve months - The extent to which you, as parents, will receive parent education if
appropriate - Any specialized equipment and/or adaptive devices your child requires
(such as communication devices, adaptive stroller)

PSRIGHTS.DOC Oct 24, 1996

- A list of the _sts or reports on which the reco.umendation is based - A request for your consent if you agree with the recommendation If the recommendation of the CPSE is different from your expressed preference the CPSE must give the reasons why it recommended a different program.
- If your child is found not eligible for special education (no educational disability), the CPSE must state the reasons s/he was found not eligible
III. INDIVIDUAL EDUCATIONAL PROGRAM (IEP)

- Every child with an educational disability must be provided with special programs and/or services according to a written IEP.

• Your child's IEP is developed in your meeting with the CPSE and is part of the CPSE recommendation. It includes your child s classification, class size, type and location of program, specific special education and related services to be provided, duration of program (10 month or 12 month), present levels of educational performance and needs, annual goals, short term objectives, extent
of participation in general education programs, Any special need for
transportation, any special testing procedures or equipment to be used, and the way your child's progress toward meeting the IEP goals will be measured and reported to you.

Your child's IEP must be reviewed and modified^ if necessary, at least once a
year. You have the right to participate in this review and upon your request, the person who performed the evaluation must attend. Your child has the right to a complete evaluation at least once every three years. If your child will receive two or more related services, or if your child will receive special education itinerant services (services delivered by a special education teacher who travels from place to place) and one or more related services, the CPSE must name the service provider who will coordinate the services.

AT ANY TIME, YOU MAY ASK FOR A REVIEW OF YOUR CHILD'S IEP. OR HIS/HER

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New York 14614) I- _ * _

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IV. PLACEMENT AND SERVICES - You have the right to select the location where your child will receive the services recommended by the CPSE.
- If you agree with the CPSE recommendation, the District must place your child in the recommended program and provide the recommended services within 30 school days from the date of the recommendation.
• If the District fails to provide your child with the recommended programs and services within 30 school days, you may request a hearing.
- When the CPSE recommends transportation as a related service, you have the right to transport your child yourself and receive reimbursement from CSD, or the CSD will provide transportation.

V. MEDIATION - If you disagree with the recommendation of the^Committee on Preschool Special Education, you may request mediation or you may request an impartial hearing. A mediation meeting is an informal meeting where you and a representative of the district come together with an independent mediator to agree upon possible ways to address concerns and resolve disagreement that both you and the district may have regarding your child's educational program. Mediation meetings will take place at the convenience of you the district representatives and the mediator, and will be conducted by the Rochester Center for Oispute Settlement. Participation in mediation is a choice which is available to you. Choosing to participate in mediation does not limit other alternatives you have, such as

PSRI6HTS.DOC Oct 24, 1996

. requesting a meeting th CPSE or requesting an impart... hearing, which you may do at any time. Requesting mediation places no restriction on your right to initiate an impartial hearing. Mediation may be requested by sending a written request to the Committee on Preschool Special Education.
VI.. DUE PROCESS RIGHTS - If you disagree with any part of the recommendation, you may request a hearinq This must be done in writing to the CPSE and should be done as soon as possible after you receive the letter of recommendation. * You may get an independent evaluation, as described on pp. 1-2. - You may be able to get free or low cost legal and/or other relevant services as described on page 1. - If you are represented by an attorney at an impartial hearing, or in a subsequent appeal to the State Review Officer or to a court, and if your appeal is successful, your reasonable attorney's fees may be paid 6y the City School District. - IF YOU REQUEST A HEARING^ YOUR CHILD HAS THE RIGHT TO REMAIN IN HIS/HER PRESENT EDUCATIONAL PROGRAM AND TO CONTINUE TO RECEIVE ALL SPECIAL SERVICES UNTIL THE HEARING AND ANY APPEALS ARE FINISHED, UNLESS THE CITY SCHOOL DISTRICT AND YOU BOTH AGREE TO A CHANGE. - IF YOUR CHILD IS REFERRED TO THE CPSE FOR THE FIRST TIME, S/HE HAS THE RIGHT TO RECEIVE THE SPECIAL EDUCATION PROGRAM AND SERVICES RECOMMENDED BY CPSE UNTIL THE HEARING AND ALL APPEALS ARE FINISHEO IF gOIH THE CITY SCHOOL DISTRICT AND YOU AGREE. - IF YOUR CHILD RECEIVES SERVICES BY ORDER OF THE FAMILY COURT THROUGH THE "BIRTH TO TWO" PROGRAM, S/HE HAS THE RIGHT TO CONTINUE RECEIVING THOSE SERVICES, IF APPROPRIATE, UNTIL THE HEARING AND ANY APPEALS ARE FINISHED. - At the hearing, you have the following rights: - An impartial hearing officer - A written or tape recorded record of the hearinq To present your own witnesses and evidence and to question the District's witnesses - To have witnesses subpoenaed by the hearing officer - To have a foreign language or sign language interpreter, if needed - To be represented or Helped by a lawyer or someone who knows about the problems of children with disabilities (see agencies listed on page 1) - To bring anyone you wish with you - To have a private hearinq unless you want it to be open to the public - To be told about all evidence the District is going to use at least 5 school days before the hearing; you must advise the District about your evidence at least 5 school days before the hearinq - To keep out any evidence you weren't told about; the District may keep out any evidence *it was not told about - To decide whether your child will attend the hearing or not * The hearing officer must inform you of his/her decision within 30 calendar days from the date you requested the hearing. - The hearing officer's decision must be based only on evidence from the hearing and must state the reasons and facts upon which it is based. * If you disagree with the hearing officer's decision, you may appeal to the State Review Officer of the Education Department, who must decide your appeal within 30 calendar days.
- If you disagree with the State Review Officer's decision, you have the right to file a lawsuit in state or federal court.
4 PSRIGHTS.DOC Oct 24, 1996

PERFORMANCE BENCHMARKS

f^dlnJ-^hievemerit^dn^ Citizenship: fafefa"ncl Suppbrtjve' S criboIs)f^vi•' '••;':>'?~. ; V

.Community-School Partnerships District Accountability

Performance Area

Responsible Party

Benchmark

Rochester City School District

and Citizenship'.--[DesignTask: Standards and Assessments]

•'o^ R e a d i n g proficiency ;

Rochester City School District

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proficiency ;vs:':;;>; « •

proficiency •::,'I, '•'•<-••"- : i

Rochester City School District
Rochester City School District

Regents and higher-level
•;v c o u r s e s •,.•••'••<, . • . i ' v , ' ;

Rochester City School District

,:.Lower-level courses

Rochester City School District
.Rochester City • School District

"rates. fy]$j$£t<
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Rochester City ; Scho'ol District

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Today only 7 of 10 Rochester students meet state reading performance standards,

which themselves are far too low. The number of students in grades 2, 5 and 8 who

• meet these standards should increase by 450 each year, meaning 9 out of 10 students

will exceed the standards by 1999.

. • .-. . ; •-. ''

Today 9 of 10 Rochester students meet state writing performance standards, which themselves are far too low. Students will continue to meet ot exceed these standards.

Today, 8 of 10 Rochester students meet state math performance standards, which themselves are far too low. The number of students in grades 2, 5 and 8 who meet these standards should increase by 350 each year, meaning 9 out of 10 will exceed the standards by 1999. •

Today, less than 3 of 10 high school students pass Regents or higher-level courses. The number of students passing these courses — now fewer than 2,000 — will increase by 800 each year, so chat 5.000 students pass chese courses by 1999.. In addition, the number of students with exceptional talent participating in enriched learning opportunities in grades 4-12 will increase by 250 students each year.

By September 1998, eliminate all non-Regents-level courses for core subjects for high school students.

Each year, about 650 students drop out of Rochester schools before graduation. Beginning with the 1995-1996 graduating dass, this number will decrease by 100 students each year. By the 1998-1999 graduating class, the number should be reduced to 250 students.
: Today, about'30 percent of Rochester students leave school before graduation. : By 1999, no more than 15 percent will leave without finishing high school.

INCLUSION
inclusion s the provision of the educational services and supports specified in an IEP to a student with a disability.
• m age-appropriate general education classes containing students with mixed abilities.
• m classes with natural proportions of students with disabilities and those without,
• m the school the student would attend if he/she did not have a disability,
• through collaboration among special education teachers, general education teachers, related service providers and paraprofessionals, tne student and his/her family to permit the student to achieve the goals of the IEP
Ari inclusive classroom is the least restrictive environment for provision of special education services and supports. Expected outcomes are as described in the student's IEP and may be the same as, or different from, the expected outcomes for other students in the class A student with a disability may be provided with special education services and supports m a more restrictive setting, for part of all of the school day, only when:
• the student cannot achieve the goals on his/her IEP <n an integrated setting, or
• providing the services in an integrated setting, even with all appropriate supports, substantially impairs the education of other students.
Inclusion does not mean:
• that every student spends all instructional time in general education classrooms,
• that a student never receives 1:1 or small group instruction.

RG-7 (11/14/95)

6T D

Exhibit E
1989 CONSENT DECREE
7. The parties intend that all documents and notices which are provided to parents of members of the plaintiff class shall encourage the parents' participation in the process of determining the disability of their child and developing their child's special education program, shall inform the parents of their rights, and shall be written in plain and understandable English or the parents' dominant language. Any future changes in documents, notices or procedures shall be evaluated by the District for their likelihood to meet the goals set forth in this paragraph.
9. The parties recognize that the process whereby students believed to have a disability are referred to the CSE for evaluation, recommendation and placement should be uniform throughout the District, well known to staff and parents, easily monitored for compliance with established time frames, and should be designed so as to inform parents about the nature of the CSE referral process and to obtain informed parental consent to evaluation as expeditiously as possible.
10a. The date of referral shall be the date the written referral or request for evaluation is received by the child's school or the CSE, whichever occurs first. Should an employee of the District submit an incomplete referral form, it shall be treated as complete for purposes of establishing date of referral, but the District may require its employees to provide further information on the referral form.
1 Oc. All letters to parents shall be postmarked to reflect the date of mailing.
lOd. If the parents do not sign consent to test and a conference is held by the school and, at the conference, the parent and the person initiating the referral agree that the referral is not warranted, the referral may be withdrawn if an alternative solution is agreed upon. A referral may be withdrawn only by use of the Agreement for Withdrawing CSE Referral (Ex. F to the 1989 Consent Decree), a copy of which shall be maintained in a separate file for the duration of the school year in the Central Office. If the referral is not withdrawn and parental consent is refused at the conference, or if the parents do not attend the conference, a request for an impartial hearing shall be sent to the CSE by the building administrator.
lOe. If parental consent to test is obtained by personnel at the child's school, such personnel shall provide the parents with copies of the letter requesting consent to test, the information regarding testing and the parental rights notice at the time consent is obtained.
13a. The District shall distribute to the parents or guardians of every student enrolled in the District, in August or September of every school year, a copy of the District's School Calendar/Directory, containing information regarding the education of students with disabilities. The District shall consult with plaintiffs' counsel before finalizing any proposed changes in the special education
Exhibit E

information contained in the Calendar/Directory. Each year's Calendar/Directory shall also be distributed to parents and guardians of students who enroll in District schools after the beginning of the school year at the time of the student's enrollment.
13b. The District shall distribute the Calendar/Directory as long as it is printed or published. If the Calendar/Directory ceases to be published, the District shall distribute substantially similar information regarding special education to parents of all students enrolled in the District, at or near the beginning of each school year, in some other form.
13c. The District shall distribute to each school at least twenty-five copies of the most recent edition of the State Education Department's publication A Parent's Guide to Special Education at the beginning of the school year. Said publication shall also be kept in the meeting rooms of the CSEs, and a copy shall be offered to every parent or guardian who attends a CSE meeting. The local defendants shall make it the responsibility of the CSE to offer parents and guardians a copy of the publication at CSE meetings.
15c. The District shall require that by the 5th school day prior to the CSE meeting, the staff of the student's school shall complete and transmit to Central Office the complete evaluation packet containing at least the documents required by law, regulation, and District policy. The District may elect to conduct a parent conference at the school, but in no event shall the transmittal of the evaluation packet be delayed to await completion of a parent conference. The District shall instruct all SSS staff and building administrators that the evaluation packet must be transmitted to Central Office on or before the due date regardless of whether or not a parent conference has been held.
15f. If the evaluation packet is incomplete for illegal reasons, or if the appropriate school personnel fail to attend the CSE meeting, a record of the noncompliance shall be kept and the CSE meeting shall be rescheduled within 15 school days. For CSE meetings which take place during the summer recess where school personnel fail to attend, the CSE shall keep a record of the noncompliance and determine whether the presence of the school-based person is necessary for informed and appropriate CSE action. The CSE may either reschedule the CSE meeting within 15 days or issue its recommendation and develop the IEP in that person's absence.
17. The local defendants shall now and in the future maintain through employment or independent contractors sufficient evaluators to complete all evaluations of children with disabilities and children believed to have disabilities in a timely manner.
Exhibit E

25. Except in cases of new entrants receiving a temporary placement, in no event shall the parents be asked or permitted to sign a consent to a placement of their child in a special education program prior to or during a CSE meeting.
28. When a parent has requested a due process hearing in writing, or when the District has scheduled a due process hearing, the District shall send a notice of the hearing to the parent at least ten calendar days before the hearing.
34. The parties agree that the procedures described in this section for timely placement of students with disabilities in appropriate educational programs reflect the following assumptions: a) that timely placement of all students with disabilities who will be identified during a given school year can best be accomplished by making accurate projections regarding the number of such students and reserving sufficient classroom space and budgeting for the hiring of sufficient personnel to accommodate all such placements at the beginning of each school year; b) that these procedures contemplate beginning each school year with less than the maximum allowable number of students in most special classes and resource programs; c) that students who can be maintained satisfactorily in their present placements for the duration of a semester are often better served by being placed in a new, more appropriate educational setting at the beginning of the following semester than by being moved (often to a different school) in the middle of a semester; and d) that special education classes and programs can be staffed and equipped more efficiently and productively be establishing them at the beginning of each school year rather than by creating them on an "as needed" basis during the course of the school year.
40. The District shall, prior to the beginning of each school year, ensure that a psychologist, social worker, behavior modification specialist and/or other appropriately certified support personnel, who does not carry responsibility for performing evaluations on children other than the children in the program with which he/she is working directly, is available to every elementary-based self-contained class in which the majority of students are classified as emotionally disturbed. No such personnel shall be assigned to more than a total of six such classes; these classes shall be in the same school or in schools which are in close proximity to one another. The purpose and duties of such personnel shall be to provide a program of ongoing support services as a part of the curriculum of each class to which he/she is assigned and to provide individual and/or group counseling to those students in such classes for whom it is deemed appropriate by professional staff..
41. Each year the District shall assign no less than a total of seven certified special education teachers to elementary school buildings containing special education classes. The primary duties of these teachers shall be to: assist in organizing the special education programs; provide instructional support to the special education programs; and chair subcommittees of the CSE.
Exhibit E

44. Subject to the provisions of the Michael T. Consent Decree, all students with disabilities for whom a change of classification, placement and/or program is sought, shall be maintained in their then-current educational placement and/or program while the CSE acts on the referral for change of classification, program and/or placement and until the student is actually placed in a different, more appropriate educational placement as recommended by the CSE and not objected to by the student's parents. If the parents of such a student object to the CSE's recommendation, the student shall be maintained in his/her then-current educational placement and/or program until the completion of all administrative and judicial procedures provided for challenging special education placements and programs.

45. The CSE shall issue a recommendation showing home instruction as the recommended placement for a student with a disability only when the CSE has determined that such placement constitutes the least restrictive environment in which the student can receive an appropriate education designed to meet his/her individual needs. The minutes of any CSE meeting at which such a recommendation is made shall reflect the reasons for the CSE rejection of alternative placements for the child (including agency placement and residential placement). Copies of these minutes shall be kept in a separate file in Central Office for the duration of the school year. Statistics showing the number of students with disabilities receiving home instruction and showing the reason for placement on home instruction shall be provided to plaintiffs' counsel on a quarterly basis through the effective date of disengagement.

46. Where the CSE determines that private (agency) placement is appropriate for a child, the CSE shall issue a recommendation showing the designated agency as the recommended placement. The CSE shall make every effort to maintain the child in his/her then-current educational program and placement. If temporary placement of a child awaiting agency placement is necessary, the placement shall be made into a District-based special education class or other available school-based program rather than on home instruction, unless the CSE finds that such placement would be inappropriate to the child's needs. Parents shall be informed in writing that they may object to any temporary placement to the same extent as and in the same manner that they may object to any other CSE recommendation and that their child's then-current educational placement will then be maintained pending resolution of the dispute.

47. Instructional aides, and the additional support personnel referred to in paragraphs 17 and 40 (of the 1989 Consent Decree), shall be utilized whenever possible to assist in maintaining a student with a disability in his/her then-current educational placement pending a change in placement. No student with a disability may be recommended for a temporary placement until an effort has been made to maintain the student in his/her then-current educational placement with the use of an instructional aide or other supportive services.

49. When a new entrant who is or may be disabled seeks to and is entitled to enroll in the District, it shall be the responsibility of the principal or his/her designee (elementary

Exhibit E

4

school), or of the Vice Principal or his/her designee (secondary school), to make an initial recommendation regarding the appropriate temporary placement for such student. This determination shall be made by such individual in consultation with a designated Central Office administrator and with the informed consent of the student's parents. The determination regarding an appropriate temporary placement of a child who is otherwise entitled to enroll shall be made according to the following procedures:

a) If the parents advise that the child was classified as disabled in a former school district and can present suitable documentation, such as a current IEP, CSE recommendation and/or school records, the school official shall consult by telephone with a designated Central Office administrator to establish the appropriate temporary placement for the child, which shall be in an available program and placement in the City School District most similar to the child's program and placement in the former district;
b) If the parents consent to such temporary placement by use of the form designated as Ex. CC (in the 1989 Consent Decree), the child shall be placed within three school days if the placement is available in the child's home school and eight school days if not in the home school; the District shall notify the parents of the placement;
c) If the parent does not consent to the proposed temporary placement, the child shall be enrolled forthwith in the regular class and grade which he/she would otherwise attend;
d) If the parents advise that the child was classified as disabled in the former school district, but cannot provide suitable documentation regarding the nature of the child's former placement, the school official shall telephone the child's former school district forthwith, if such former district can be identified, and make all reasonable efforts to determine the child's classification and placement in the former school district.
e) If suitable information is obtained from the former school district, the child shall be enrolled in the appropriate temporary placement pursuant to subparagraphs b) and c) above and the District shall notify the building administrator of the child's home school of the action taken;
f) If suitable information cannot be obtained from the former school district, the child shall be enrolled in the regular class and grade which he/she would otherwise attend;
g) If the parents of a child referred to in subparagraphs b), c), e) or f) above do not want their child to attend the regular class or temporary placement offered, such parents may consent to placement of the child on home instruction pending CSE review and placement in an appropriate program by use of Ex. CC.
h) The building administrator shall submit a referral to the CSE regarding a claimed disabled new enrollee on the date of the child's or parents' initial attempt to enroll the child in school and shall provide the parents with copies of the letter requesting consent to test, the information regarding testing and

Exhibit E

5

the parental rights notice and obtain, if possible, parental consent to evaluation of the student and parental permission for release of records from the former school; the Central Office administrator consulted by the school official shall make inquiries to determine that a referral has been or is being submitted; i) Where a new enrollee is enrolled in a temporary placement other than the home school pursuant to subparagraphs b) or e) above, the building administrator of the child's home school shall transmit to the school in which the child is temporarily placed at least the following: the newly opened cumulative file; a copy of the referral; a copy of the consent to Test form signed by the parents; evaluations of the child, if needed, shall be performed by personnel at the school of temporary placement;
j) Nothing in this paragraph shall be construed to prevent the District from maintaining a new enrollee in his/her former or present out-of-district or private placement pending CSE review and implementation of any new placement if required by law or at the discretion of the District.

50. All new entrants shall be placed (if the parents do not object) in the program and placement recommended by the CSE no later than the thirtieth school day after the date of the recommendation. AH new entrants who have been recommended for agency placement and for whom such placement cannot be accomplished within sixty school days shall be maintained in their temporary placement; if the temporary placement is home instruction, the CSE shall consider temporary placement of the student in a District-based special education class unless the CSE and parents agree that such a class would not be appropriate to meet the child's needs.

51. In all cases of new enrollees the temporary placement shall be deemed the child's then-current educational placement if the parents object to the CSE recommendation.

62. Annually, prior to budget preparation, the District shall perform to the best of its ability an assessment of the projected need for special education placements and services for the following year. This assessment of projected special education placements and services needs shall, at minimum, contain a statement of the number of students with disabilities currently receiving special education services, estimates of the number of students who will be identified as disabled and require special education services prior to or during the next school year, estimates of the number and type of special classes required, estimates of the number of staff necessary to perform evaluations and provide instruction and related services and to effectuate placements within the required time limits, the supplies and instructional materials required for the proposed classrooms, and the estimated cost of all these items.

63. The District shall annually reserve sufficient classrooms, instructional materials and supplies, and recruit and hire sufficient special education teachers and support staff to ensure timely evaluation and placement of the projected number of students who will be newly classified as having disabilities during the upcoming school year as well as those already classified.

Exhibit E

6

64. The District shall periodically evaluate the projections of need made the preceding spring to determine whether a sufficient number of classrooms and instructional and support personnel were projected and budgeted for to allow for timely evaluation and placement of all students with disabilities requiring placement during the school year.
65. If any above-described evaluation shows that additional classrooms and/or instructional and support personnel will be needed in order to allow for timely placement of students with disabilities, the District shall hire staff for and open whatever number of additional special education classes are shown to be needed.
Exhibit E

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

J.G.
v. Roch. Brd. of Edu.

Plaintiff(s) Defendant (s)

6:81-cv-00173

PLEASE take notice of the entry of an ORDER filed on 5/1/97, of which the within is a copy, and entered 5/1/97 upon the official docket in this case. (Document No. 100 .)

Dated: Rochester, New York May 1, 1997

RODNEY C. EARLY, Clerk U.S. District Court Western District of New York 2120 U.S. Courthouse 100 State Street Rochester, New York 14 614
Enclosure TO:
Elizabeth L. Schneider, Esq. Bryan D. Hetherington, Esq. David A. Munro, Esq. Louis N. Kash, Esq. Kenneth Pawson, Esq. Robert D. Stone, Esq. Ruth Scott

 
 193 F.Supp.2d 693 (2002)
J.G., et. al., Plaintiffs, v.
THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT, et. al., Defendants.
No. 81-CV-173T.
United States District Court, W.D. New York.
January 14, 2002.
694*694 Ruth Scott, Scott Associates and Consultants, Inc., Rochester, NY, pro se.
Bryan D. Hetherington, Public Interest Law of Rochester, Rochester, NY, Jonathan Feldman, Public Interest Law Office of Rochester, Rochester, NY, for plaintiffs.
Donald T. Schmitt, Rochester City School Dist., Rochester, NY, for defendants.
DECISION and ORDER
TELESCA, District Judge.
INTRODUCTION
This class-action lawsuit was commenced in 1981 by parents on behalf of students in the Rochester City School District, (hereinafter the "City School District," "School District," or "District"), who are disabled, or who may be disabled, against the City School District. Plaintiffs allege that the defendants are violating State and federal laws and regulations, and the United States Constitution by failing to provide a free, appropriate public education to special education students in the Rochester City Schools. Specifically, plaintiffs contend that the School District has neglected current and potential special education students by, among other 695*695 things: failing to promptly evaluate those students for the presence of a disability; failing to promptly place special education students in appropriate programs; failing to provide appropriate special education programs; failing to establish goals for special education students or monitor progress towards those goals; failing to educate children in the least restrictive environment; failing to allow special education students to fully participate in extra curricular activities; failing to advise parents of their rights with respect to educating special education students, and failing to allow parental participation in the special education process.
The Complaint was filed in 1981, one year before I was appointed to the Federal Bench. In May, 1982, the case became my responsibility and several conferences were held with the parties. As a result of those meetings, the plaintiffs and School District entered into a Consent Decree on August 11, 1983. The Consent Decree was modified over the years,

and in 1997, the parties entered into the latest version of the Consent Decree which provided that this Court would retain jurisdiction over the case for an additional three years, until May 1, 2000, when the decree would terminate. The Decree also provided that the School District would attempt to meet certain statistical goals as set forth in the Decree and the School District could petition this Court for "disengagement" from court oversight if it met its goals earlier than the May 1, 2000 expiration date of the Decree.
The Decree was entered on May 1, 1997. Thereafter, over the course of the next three and one-half years, the parties appeared before this Court on only one occasion, in April 1998, for a status report. Thereafter, in January, 2001, not having heard from the parties for over two and one-half years, and recognizing that the 1997 Decree had expired on May 1, 2000, I issued an Order to Show Cause why a formal order terminating the Decree and ending this case should not be entered. The School District responded to the Show Cause Order arguing that the Decree should be terminated on grounds that the District is now providing and will continue to provide satisfactory services to special education students. Plaintiffs argued that because the defendants are not in compliance with the 1997 Decree, or state and federal law, the Court should continue to exercise jurisdiction over this case.
Having considered the parties' arguments, and for the reasons sated below, I find that the 1997 Consent Decree has expired under its own terms and, therefore, the Decree is terminated, and the case is dismissed in its entirety with prejudice.
BACKGROUND
I. The Complaint
On March 6, 1981, plaintiffs filed a class-action Complaint against the Rochester City School District, the New York State Department of Education, and various defendants in their individual and official capacities. The main thrust of that Complaint was that the School District's provision of educational programs to special education students was woefully inadequate. Specifically, the plaintiffs contended that the School District was not in compliance with State and federal law with respect to evaluating students suspected of suffering from a disability.
The allegations in the Complaint fall into three broad categories. First, the plaintiffs complained that the School District did not evaluate students, or place them in special education programs, in a timely manner. Second, the plaintiffs alleged that students were not properly evaluated or placed into programs that would meet their needs. Finally, plaintiffs contended that students 696*696 and parents were not allowed to fully participate in the evaluation and placement process, and were not informed of their rights to participate in that process, or to object and/or appeal placement decisions or evaluations made by the District.
II. The 1983 Consent Decree

After a number of conferences with the court during which the parties presented their various concerns, The parties agreed to enter into a consent order, which I approved on August 11, 1983. The overriding theme of the Consent Decree was that the Rochester City School District would improve the way it provided special education services to special needs students by: evaluating and placing students in programs in a more timely fashion; monitoring student progress; facilitating and encouraging parent and student participation in the evaluation and placement process; conducting more thorough evaluations; and creating individualized educational programs to ensure that special needs students would be placed in appropriate programs, (including private-placement programs), would not be unduly disrupted from their current programs, and would be provided an opportunity to participate in extracurricular programs. The Decree set forth in exacting detail the steps the District would be required to take in achieving these goals, and the consequences of noncompliance. Moreover, the Decree provided that the District would undergo a selfassessment to determine how well it was providing services to special needs students. The District also agreed to train teachers and staff to be more aware and responsive to the needs of disabled students, and to understand what their roles were in providing special services to students in compliance with State and federal law, and the Consent Decree.
In 1989, by agreement of the parties, the Decree was modified to reflect changes in state and federal regulations and their implementation in the process set forth in the Consent Decree.
III. The 1993 Enforcement Order
Following modification of the Decree in 1989, plaintiffs became dissatisfied with the level of the School District's compliance and notified the District of several areas where noncompliance with the decree had increased substantially. Specifically, plaintiffs complained that the District was, inter alia: (1) failing to timely evaluate and place students in appropriate programs; (2) failing to monitor compliance with the 1983 Consent Decree; (3) failing to provide disabled students with equal access to all educational programs and extracurricular activities; (4) failing to educate disabled students in the least restrictive environment, and (5) improperly disciplining disabled students. The parties negotiated an Enforcement Order addressing these concerns, which was entered on October 15, 1993.
IV. The 1997 Consent Decree
In 1996, three years after the 1993 Enforcement Order was issued, plaintiffs filed a motion for contempt on grounds that the District was not in compliance with both the 1983 Decree as modified, and the 1993 Enforcement Order. Plaintiffs complained that the defendants were not evaluating potentially disabled children in a timely fashion, and were not making timely placement recommendations. Joint Declaration of Elizabeth Schneider and Bryan Hetherington in support of Contempt Motion (hereinafter the "Schneider Declaration") at ¶¶ 46-50. Plaintiffs also contended that parents of special education students were misinformed as to educational options for their children, and were excluded from meetings and were not allowed to participate in decisions affecting their children's 697*697 placements in special education programs. Schneider Declaration at ¶¶ 51-53.

Rather than proceed with a contempt hearing, the parties negotiated a new Consent Decree, which was accepted by this Court on May 1, 1997. Unlike the previous consent decrees, the 1997 Decree set forth specific numeric goals that the District was to achieve in each of the following three school years. Whereas the previous Decrees sought to control how the District went about providing services to children with disabilities, the 1997 Decree focused on results: setting 16 specific standards in five broad categories that were of principal concern to the plaintiffs which were to be met by the District. The categories included: (1) timely recommendations by the Committee on Special Education and Committee on Preschool Special Education; (2) timely placement of students in appropriate programs once evaluations had occurred; (3) parental participation and satisfaction; (4) nondiscrimination and equal access; and (5) inclusion in mainstream curriculum and education in the least restrictive environment.
One notable and significant aspect of the 1997 Decree was that it provided a termination date after which the Court would no longer retain jurisdiction over the matter. Specifically, the Decree provides that: "[t]he court shall retain jurisdiction of this matter for an additional three years from the date of the signing of the Consent Decree unless the Court determines, after a motion on notice to the parties, that the District has met the requirements for disengagement from court supervision ... at an earlier date." 1997 Decree at p. 3, ¶ 6. (Emphasis mine.) Thus under the terms of Consent Decree, barring an extension of the Decree, the Court would retain jurisdiction over this matter for a maximum of three additional years, until May 1, 2000.
V. This Court's Order to Show Cause
Not having heard anything from the parties as contemplated by the 1997 Decree, by Order dated January 30, 2001, I issued an Order to Show Cause why this case should not be dismissed with prejudice. A hearing was held on April 24, 2001, at which the plaintiffs appeared and argued that the Court should not dismiss the action because the District was not in compliance with the 1997 Decree or with State and federal regulations. The defendant School District urged this Court to dismiss the case arguing that the District was in substantial compliance with the 1997 Decree, and in any event, had implemented a plan for improving the provision of special education services to special needs students. I stayed determination of the Order to Show Cause until November, 2001, and ordered the School District in the interim to issue monthly reports to this Court concerning progress that the District had made, and was making, towards complying with the 1997 Consent Decree.
On November 27, the Court reconvened for further argument on the Order to Show Cause and the parties argued as follows.
A. The Defendant School District
The School District filed two affidavits in response to the Order to Show Cause, one from Rochester School Superintendent Clifford Janey, and another from Dr. Marie Cianca, the Managing Director of the Education of Exceptional Children for the School District. Both affiants argued that despite the District's failure to meet a number of the standards set forth in the 1997 Consent Decree, it should nonetheless be terminated, and the case dismissed.

Specifically, they contended that the Decree should be lifted because: (1) the School District complied with some of the criteria set forth in the 1997 Decree; (2) it 698*698 was "not reasonable or practicable" to attain "statistical perfection" with respect to accomplishing all the goals it agreed to undertake in 1997; (3) the District had paid the plaintiffs' attorneys $478,900.00 in attorneys fees since 1995, and that money could have been better spent on programs for students with disabilities; (4) the District had spent countless man-hours preparing reports and generating data for review by the plaintiffs' attorneys, costing the District an estimated $150,000.00 per year: money that could have been better spent on students; (5) the monitoring required under the 1997 Decree was unnecessary as the District was in substantial compliance with the Decree, and monitoring consumed resources that could have been better directed towards students; (6) the District was under the everincreasing scrutiny of the State Education Department; (7) the District was in substantial compliance with the original 1983 Consent Decree; and (8) the District intended to introduce the "Rochester Plan" which would supplant the Consent Decree. That plan contained provisions for a "Focused Monitoring Team," which would oversee schools to ensure compliance with all regulations, specifically including regulations involving students with disabilities.
B. The Plaintiffs' position
The plaintiffs argue that legal principles and equitable considerations prohibit termination of the Consent Decree at this time because the District is not in compliance, or even substantial compliance, with the terms of the 1997 Decree.
The plaintiffs offered three primary reasons why the Consent Decree should not be terminated:
1) The District has failed to meet the targets set forth in the 1997 Consent Decree.
2) The District is in "significant" violation of federal and state laws with regard to the education of students with disabilities, and if the Consent Decree is terminated, a new lawsuit, can and will be brought, wasting the time of the Court and counsel, and harming the beneficiaries of the Decree by delaying the District's compliance with the law.
3) The District's proposed self-monitoring plan, known as the Rochester Plan, is characterized as a "sham."
As stated above, the Consent Decree establishes sixteen (16) benchmarks that must be met by the District prior to termination of the Decree. According to plaintiffs, seven (7) of the sixteen (16) benchmarks address educational equity and nine (9) address procedural rights, such as the timely identification of students suspected of having disabilities. Plaintiffs claim that of the seven educational equity benchmarks, the District is "far from" compliance with any of the seven. With respect to the nine procedural rights benchmarks, plaintiffs claim that the District is not close to compliance with five of the goals, and argue that the District only "flirted" with compliance in the remaining areas. In sum, of the sixteen benchmarks, plaintiffs argue that the District has only achieved "substantial compliance" in one area—the timely mailing of placement letters.

Plaintiffs assert that defendants' argument that "times have changed" is an insufficient basis upon which to terminate the Decree. This argument, plaintiffs claim, fails because it does not take into account the fact that the Decree itself has changed since the 1980's. They note that the 1997 Decree was modified to include the target goals in exchange for excusing the District from complying with certain procedural requirements of the earlier Decree.
699*699 Plaintiffs also challenge defendants' argument that 100% compliance with the benchmarks is unfair. According to plaintiffs, 100% compliance is not strictly required. Rather, they would be satisfied if the District at least approached the 100% mark.
Plaintiffs also take issue with defendants "complaints" about the cost of compliance under the Decree.[1] Plaintiffs assert that because the District only provides, at best, a portion of the monitoring reports required by the Decree, there is no way that the costs of compliance are as burdensome as defendants claim. Further, plaintiffs argue, any money spent on compliance is a good investment for students with disabilities.
Finally, according to the plaintiffs, the proposed self-monitoring plan (known as the "Rochester Plan") "wholly lacks credibility." First, plaintiffs argue that the District's failure to comply with the reporting requirements of the Decree demonstrate that it will not effectively "self monitor." Further, plaintiffs argue, given the State Department of Education's deficiencies in looking out for the rights of disabled students, there is no reason to believe that it will provide meaningful oversight of the proposed plan.
For all of the foregoing reasons, plaintiffs argued that termination of the 1997 Consent Decree would be premature and inappropriate on both legal and equitable grounds.
DISCUSSION
I. Legal Standards for Terminating a Consent Decree
One principle that cannot be overstated in a 22 year-old case is that consent decrees which govern the provision of educational services to children in a statutorily and constitutionally acceptable manner "are not intended to operate in perpetuity." Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). Where a court determines that a party to a consent decree is operating in compliance with the commands of the Constitution, and that it is unlikely that the party would revert to non-compliance, the court may terminate a consent decree. Id. at 247, 111 S.Ct. 630. As the Supreme Court stated in Dowell:
The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that "necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination."

Dowell, 498 U.S. 237, 248, 111 S.Ct. 630 (citing Spangler v. Pasadena City Bd. of Education, 611 F.2d, at 1245, n. 5 (Kennedy, J., concurring) (citation omitted)). The principles of Dowell, which involved racial segregation issues, are equally applicable in this case, where plaintiffs allege numerous statutory and constitutional deficiencies in the manner in which the School District educates its special needs students.
In determining whether or not to terminate a consent decree, a district court 700*700 "should make sufficiently detailed findings of fact and conclusions of law under Rule 52(a), Fed.R.Civ.P., to advise the parties of the factual basis for its decision and permit informed appellate review." Bradley v. Milliken, 772 F.2d 266, 272 (6th Cir.1985). As the Supreme Court has noted, "[i]f ... a [consent] decree is to be terminated or dissolved, respondents ... are entitled to a [precise statement] from the court." Dowell, 498 U.S. at 246, 111 S.Ct. 630. Additionally, all objections raised by the party opposing termination must be dealt with by the District Court. Youngblood v. Dalzell, 925 F.2d 954, 961 (6th Cir.1991); Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir.1998). Nevertheless, a court need not await a party's motion to terminate a consent decree. In re Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525, 1532 (11th Cir.1994). In accordance with Bradley, Dowell, and Youngblood, the following represents my findings of fact and conclusions of Law.
II. The 1997 Consent Decree has Expired under its own Terms.
A consent decree is interpreted in accordance with principles of contract law. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975). To determine the scope of a consent decree, courts must look to the four corners of the document, and should not rely on extrinsic evidence absent ambiguity in the language of the decree. E.E.O.C. v. Local 40, International Assoc. of Bridge, Structural and Ornamental Iron Workers, 76 F.3d 76, 80 (2nd Cir.1996) (citations omitted).
It is without question that consent decrees may expire under their own terms. Balark v. City of Chicago, 81 F.3d 658, 663 (7th Cir.1996); E.E.O.C. v. Local 40, 76 F.3d at 80. In the instant case, the 1997 Consent Decree provides that: "[t]he Court shall retain jurisdiction of this matter for an additional three years from the date of the signing of the Consent Decree unless the Court determines, after a motion on notice to the parties that the [School] District has met the requirements for disengagement from Court supervision ... at an earlier date." The Decree was signed on May 1, 1997, and thus, by its own terms, the Court retained jurisdiction over the action only until May 1, 2000, when it expired by its own terms.
Significantly, neither party moved to extend the decree. See E.E.O.C. v. Local 40, 76 F.3d at 81 (recognizing that where a consent decree expires under its own terms and no party moves for an extension, the decree may continue to be enforced). Indeed, from 1997 to 2000, the parties appeared before the Court on only one occasion, for a status conference in April, 1998.
Moreover, despite the fact that the plaintiffs now contend that the District has been out of compliance with the 1997 Decree since almost the day it was signed (See Joint Declaration

of Jonathan Feldman and Bryan Hetherington in Response to Order to Show cause dated April 19, 2001 at ¶ 20), plaintiffs made no motions over the three-year course of the 1997 Decree to enforce the Decree or compel compliance with its provisions. The 1997 Decree clearly provided that "[a]t any time prior to disengagement, plaintiffs may bring a motion to enforce the provisions of this consent Decree if the District fails significantly to carry out any of its obligations under the Decree and has no adequate plan to correct the violation(s) of the Decree within a reasonable period of time." Consent Decree at p. 40, ¶ 2. Plaintiffs were familiar with this remedy as they had on at least two previous occasions prior to 1997 moved to compel compliance with previous Consent Decrees. Nevertheless, plaintiffs made no such motion 701*701 during the three-year period of the 1997 Consent Decree.
Additionally, it is apparent that by April 2001, if not earlier, plaintiffs were aware that the Consent Decree had expired. At that time plaintiffs sought a stipulation from the School District, consenting to continuing jurisdiction over this case by the Court. The School District refused to consent to continuing jurisdiction.
The conclusion that the 1997 Consent Decree expired on May 1, 2000 is not altered by the fact that the Decree contemplated that certain acts could occur after May 1, 2000. Such a clause does not render the explicit termination date ambiguous. See E.E.O.C. v. Local 40, 76 F.3d at 81 (holding that a consent decree provision providing for the expiration of the decree on a date certain was not rendered ambiguous by a competing clause which provided for a "permanent" injunction, on grounds that the term "permanent" as used in the Decree simply referred to post-litigation activities). In this case, the Decree makes reference to some tasks that are to be completed after the expiration of the 1997 Decree. For example, the Decree requires an inclusion committee to establish a date no later than the 2001-2002 school year by which a majority of special education students would be educated in inclusive environments. 1997 Consent Decree at page 22, ¶ 7. Such a requirement, however, does not nullify the three-year limitation period of the Decree because under the terms of the Decree, the committee must act within the three year period, even if it sets a date for ultimate compliance outside the three-year life of the 1997 Decree.
Because the 1997 Consent Decree expired by its own terms on May 1, 2000, and because there was no request for an extension of the decree by any party prior to its expiration, I find that the Decree is terminated under its own terms, that the case is now closed, and that this Court no longer has jurisdiction to here any claims arising out of the Complaint or the consent decrees.
III. Plaintiffs' Objections to Termination of the Consent Decree are without merit.
Plaintiffs cite three main objections to termination of the Decree. First, plaintiffs contend that the School District is out of compliance with the 1997 Decree, and thus the Court should maintain supervision over the Decree and the District. Second, the plaintiffs contend that the District is not in compliance with State and Federal regulations governing special education, and that if this case were terminated, plaintiffs would have no other option but to commence a new action. Finally, plaintiffs contend that the School District's proposal for

self-monitoring is a "sham" in light of the fact that the District has not, even under court supervision, been capable of monitoring its progress with respect to meeting the terms of the Consent Decree. Because the Consent Decree has expired, plaintiffs objections are without merit.
A. Alleged Non-Compliance with the 1997 Decree
Plaintiffs' contention that the District is not in compliance with the dictates of the 1997 Decree is an argument that should have been made to the Court during the time the Decree was in force. To enforce a decree against any party after the decree has expired violates the unambiguous language of the decree as well as the intent of the parties, who negotiated the termination date in good faith. See E.E.O.C. v. Local 40, 76 F.3d at 81 (holding that an attempt to enforce a consent decree after its expiration would deprive one of the parties of the benefit of its bargain). Because the plaintiffs never moved to enforce 702*702 the Decree, and after April 1998, never reported any violations of the Decree to the Court, I find that plaintiffs current claims that the District is not in compliance with the expired Decree to be untimely.
B. Alleged Non-Compliance with State and Federal law.
Plaintiffs contend that the District is not in compliance with State and federal law with respect to providing special education services to special needs students, there is no evidence in the record to support a finding one way or the other with respect to that issue. Moreover, even assuming that the District had been in violation of any laws or regulations, the parties agreed to settle claims related to those violations by entering into the various consent decrees that have existed throughout 17 of the first 19 years of this litigation. Thus the Consent Decree resolved plaintiffs' claims with respect to any state or federal violations. As part of that resolution the plaintiffs agreed that defendants would remedy alleged violations, and that the Court would maintain jurisdiction over the defendants until May 1, 2000 to ensure that the School District lived up to its obligations under the Decree. But the parties also agreed that while the Decree was in force, the plaintiffs could move this Court to compel compliance with the Decree. Plaintiffs, however, never made such a motion to enforce the 1997 Consent Decree prior to its expiration on May 1, 2000.
C. The District's Self Monitoring Plan
Plaintiffs contend that the District's proposed self monitoring plan is a "sham," and will not ensure future compliance with federal and state laws regarding the education of disabled children. This objection is speculative and conclusory, and is inapposite to the issue of whether or not the Court should retain jurisdiction over the parties given that the Consent Decree has expired. Accordingly, I find this objection to be without merit.
IV. The School District is in Compliance with the goals of the Plaintiffs as set forth in their Complaint.

Although the expiration of the 1997 Consent Decree, standing alone, is sufficient to justify termination of this case and court supervision of the Rochester City School District, I note that the School District has dramatically improved the way it provides special education programs to students in its schools, and is in substantial compliance with the goals set forth by the plaintiffs in their 1981 Complaint.
As set forth previously, the original Complaint in 1981 alleged that the School District was: (1) failing to timely evaluate students for determination of whether or not they suffered disabilities; (2) failing to notify parents of proceedings effecting their children, failing to allow meaningful parental participation, and failing to notify parents of their substantive and procedural rights; (3) failing to place students in appropriate programs, failing to minimize disruption in placing students, and failing to place students in an appropriate program in a timely manner; (4) failing to provide programs that would educate special needs children in the least restrictive environment; (5) discriminating against disabled students by not allowing them to participate fully in extra-curricular or non-academic programs; and (6) failing to monitor student progress. The School District has addressed each of these concerns over the last 20 years, with significant progress being made in the last few years.
A. Timely evaluations
The plaintiffs alleged in the 1981 Complaint that students often went for months 703*703 without being evaluated after they were referred to the Committee on the Handicapped (now the Committee on Special Education or "CSE") for determination of whether or not those students were disabled. Since then, the District has taken steps to ensure more timely evaluations for the majority of students who are referred to the CSE.. For example, the District has expanded the number of CSE committees from one in 1981, to seven in academic year 1999-2000. See April 5, 2001 Affidavit of Marie Cianca at ¶ 25. ("Cianca Affidavit"). As a result, 86.65 percent of school-age children, and 67.22 percent of all preschool children were evaluated within 30 days of a request for evaluation during that school year. See Exhibit 2 to the Cianca Affidavit at p. 3. Additionally, once the evaluations were performed, notices were sent or ready to be sent to parents within 10 days in 92.1 percent of all cases for the 1999-2000 school year. Id. at p. 4. These figures demonstrate that in the vast majority of cases, Rochester City School District Students are being evaluated in a timely manner once they are referred to the CSE, and parents are receiving timely notice of CSE recommendations.
B. Parental Participation
The 1981 Complaint alleged that parents were discouraged from participating in the process of determining whether or not their children needed special education, and which programs, if any, were appropriate. As noted above, the District now has in place a system for notifying parents of proceedings affecting their child, and informing parents of decisions that have been made affecting their children. Additionally, the School District, through a consultant hired locally through the Advocacy Center, conducts parent workshops at which parents of special education students are trained, and shown how to actively participate in their child's education and the development of the Individualized Educational Program. The District has also produced and aired on local public television educational videos designed to inform the

public about inclusion of special needs students in general classrooms. Surveys of parents with children in special education programs reveal that most parents are satisfied with the treatment both they and their children have received. See September 2001 Annual Report to District Court.
These initiatives demonstrate that unlike years past when the District allegedly sabotaged meaningful parental participation, the District is now not only soliciting and welcoming such participation, but is also informing parents on how they can better participate in and advocate for their child's education.
C. Placement of Students in Special Education Programs
The Complaint filed in 1981 alleged that once students were evaluated and it was determined that special education programs would be appropriate, months could pass before students were placed in new programs. The District has successfully remedied that problem, and is now placing over 90 percent of its special education students in their new programs within 30 days. In academic year 1999-2000, 92.4 percent of special education students were placed in programs within 30 days, and 97.5 percent were placed within 40 days. See Exhibit 2 to the Cianca Affidavit at p. 6. Moreover, parents were timely notified of the placements—with 99.1 percent of placement letters being mailed or made ready for mailing within 20 days of the CSE evaluation meeting. Id. at 5.
Additionally, students are being timely placed in appropriate programs, even in cases where the appropriate program is placement in an out-of-district program. 704*704 In academic year 1999-2000, 91.3 percent of students placed in out-of-district programs were placed within 5 days of a space becoming available in that program. Id. at 7.
These statistics demonstrate that the School District has implemented procedures for placing students in their new programs in a timely fashion, one of the main concerns of the 1981 Complaint and subsequent consent decrees.
D. Education in the Least Restrictive Environment
The City School District has made significant gains during the last three years in terms of including special education students in general education classes. In the 1998-99 school year, only 32.8 percent of elementary special education students participated in general education classes. Today, 73.9 percent of such students participate in the general curriculum. The gain in middle school participation has been even greater. In 1998-99, only 12.1 percent of special education students participated in general education classes. Now, 60.5 percent of special education students participate in the general curriculum. In high schools, 53.6 percent of special education students now participate in the general curriculum, whereas only 14.5 percent participated in 1998-99. See Defendants' November 20, 2001 Memorandum in Support of Order to Show Cause at p. 8.

E. Inclusion of Special Education Students in Extracurricular Activities
Although the School District has not provided statistics with respect to actual participation by special education students in extracurricular activities, the District has reported the results of a survey sent to principals of all schools, which indicates that in most circumstances, at the elementary and middle school levels, more than two-thirds of children in special education programs participate in extracurricular activities. At the high school level, participation has been less, but the District and schools are working on plans to increase participation.
F. Monitoring Student Progress.
The 1981 Complaint alleged that many students were not being evaluated to determine whether or not they were making any progress in their special education programs. The 2001 Annual Report submitted by the School District suggests that the District is now completing virtually all of its projected annual and triennial evaluations. For example, of the 2046 triennial reviews projected for completion in the 2000-2001 school year, 2097 were actually completed. See 2001 Report to the Court. According to the District, more reviews were performed than projected because some reviews could have been scheduled but not completed in the previous academic year. Similarly, whereas 6822 annual reviews were projected for the 2000-2001 school year, 6873 were actually completed. Id. These figures suggest that Rochester School District students are being regularly monitored to determine whether or not they are advancing within their special education programs.
G. Additional Initiatives
While the School District has shown ample evidence of wholesale, system-wide reform in the way its provides special education services to special needs students, it has also demonstrated that it has reformed its practices at perhaps the most important level: the classroom. Administrative reforms amount to very little if special needs students are not receiving quality instruction in the classroom. To that end, the District has taken great strides to ensure that classroom teachers are trained to understand the needs of special education students in their classrooms, and are able 705*705 to provide appropriate care and attention to those students. One of the major components of teacher training has been the mentoring program introduced by the District in which experienced teachers mentor newer teachers, assisting them in meeting the challenges of, among other things, teaching special education students in inclusive settings. Additionally, the District makes special education training available to all teachers, conducting programs that inform teachers of current regulations regarding special education teaching, how to use assistive technology in the classroom, language therapy, and other topics specific to educating special needs students. Many of these training programs are provided by the Special Education Training and Resource Center, which has the mission of providing special education training to all teachers in the District. The District's training programs, along with the mentoring program, are designed to ensure that once special education children are placed in an appropriate

program, they will be educated by teachers who understand their needs, and who have been given the tools to effectively educate special needs students.
The programs and initiatives described above demonstrate that the District has in place a well-conceived and implemented plan for providing services to special education students and their parents. The plan comports with the original intent of this lawsuit: to ensure that the School District provides special education students with a fair opportunity to gain a free, appropriately tailored public education in the least restrictive environment possible. Because these programs are in place, and special education instruction is now integrated into the culture of education, rather than being viewed as a separate, additional burden on the School System, the Consent Decree no longer serves the purpose it did when special education curricula were poorly regulated, poorly funded, stop-gap programs given insufficient thought or attention. The programs in place now bear little resemblance to those few programs that existed in 1981, the lack of which prompted the allegations that the School Districts' neglect of special education rose to the level of a Constitutional violation. Today, it would be difficult to allege, no less establish, that the School Districts' efforts to teach its special education students violate the Constitution. Because "[f]ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation ..." Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), continued oversight of the School District would be inappropriate where the District is providing suitable, even if not perfect, special education services.
The plaintiffs contend that there is evidence of continued Constitutional and statutory violations in the form of devastatingly poor results on standardized tests taken by special education students in the Rochester City Schools. However, as the New York State Supreme Court, Appellate Division, Fourth Department, recently noted, "academic failure as measured by performance on standardized tests does not, standing alone, establish a constitutional violation." Paynter v. State, 290 A.D.2d 95, 735 N.Y.S.2d 337, 2001 WL 1636325, *4 (N.Y.A.D. 4th Dept., December 21, 2001). As the Paynter Court noted, [t]here are myriad reasons for academic failure ...." Clearly, there is room for significant improvement in the test scores of all students in the Rochester City School District. However, where the District is providing adequate services to special education students and their parents, and is doing so in a timely manner, poor test scores will not substantiate a claim for a violation of the Constitution.
706*706 V. The Future of Special Education in the Rochester School District
Plaintiffs voice a legitimate concern that if the Consent Decree is lifted, the School District will de-emphasize special education, and that the School District will return to a state in which special education students are not provided with an adequate education. Plaintiffs are particularly concerned that given the stiff competition for resources within a School District that currently faces a significant budget deficit, special education initiatives will be subordinated to cost-cutting measures, and thus special education students will suffer. They argue that without court oversight, students will be left without legal advocates to protect their right to an appropriate education.

While the School District's current budget problems do raise a concern that all children in the District will be left with fewer educational resources, special education students are somewhat insulated from many of the problems associated with the current budget deficit in that many of the programs designed to deliver services to students in a timely manner— while allowing for parental participation— are already in place. Indeed, as stated above, the District has, over the years that the Consent Decree has been in place, and particularly over the last three years, implemented district-wide changes that have emphasized the importance of special education, including training teachers to be more adept at handling the needs of special education students in their classrooms, and involving parents in the evaluation and placement stages of the special education process. In short, the system through which children are provided special education services has radically changed since the early 1980's, when services were provided without proper evaluation, coordination, or oversight, to the present where the procedures for evaluating, placing, and monitoring students has become institutionalized. The School District now has in place a plan for evaluating students in a timely manner; notifying parents about the special education process, including their role and rights in the process; seeking and accommodating parental involvement; placing students in the least restrictive environment possible; including special education students in academic and extracurricular activities; and monitoring the progress of students and the District as a whole. This plan ensures that special education students will be treated in a constitutionally appropriate manner, and in accordance with State and federal law and regulations.
Moreover, nothing in this order prevents a special education student or potential student from utilizing the services of a legal advocate should that student feel that he or she is not receiving appropriate treatment. This Order merely discontinues the School District's obligation to pay the fees of the attorneys for the plaintiff class in connection with their monitoring the School District's compliance with the decree, and their individual advocacy on behalf of class members. With respect to monitoring, the dissolution of the 1997 Decree should not have a significant effect given that plaintiffs did not report any violations of the decree to the Court after May 1998, nor did they seek any extension of the Decree from this Court during the period it was in effect.
Finally, State oversight of special education has increased significantly since the original Complaint was filed in 1981. That oversight continues, supplanting this Court's oversight, and provides incentive for the District to remain in compliance with State and federal law with respect to its providing services to special education students.
707*707 Ultimately, oversight and responsibility for the education of a special needs student rests with the parent or guardian of that child. There is no substitute for the care and guidance supplied by a parent or guardian at home, where a child spends the majority of his or her day. The District has developed programs to more successfully educate special education students, but without parental involvement, management, and oversight, no program can achieve its full potential. Acknowledging that parental involvement is key to the success of a child's educational program, the District has instituted programs to help parents better respond to the special needs of their children, and to advocate more effectively on behalf of their children. These are welcome initiatives which recognize that without the support and commitment of parents and guardians, as well as teachers, no education program is complete.

CONCLUSION
For the above stated reasons, I hold that the 1997 Consent Decree has expired by its own terms, and that accordingly, this Court lacks jurisdiction over the expired Decree. The case is dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
[1] Plaintiffs assert that the "vast majority" of the $478,900 the District claims to have spent on compliance since 1995 actually represents costs incurred in connection with attempts to secure compliance with the 1993 Enforcement Order and negotiating the 1997 Decree, not compliance monitoring under the 1997 Decree.

 
 J.G. v. Rochester Bd. of Ed.

• •• • •• •• •• • •
CW-NY-002-001
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

J. G., by his mother and next friend,

Mrs. G.; M. W., by her mother and next

friend, Mrs. W.; A. M., by his mother

and next friend, Mrs. M., and K. M., by

her mother and next friend, Mrs. M;

Civil Action No

on behalf of themselves and all persons

r.

similarly situated,

Plaintiffs,

-vs-

THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT; JOHN DELVECCHIO, ARCHIE CURRY, FRANK WILLIS, IRENE FRUSCI, JOSEPHINE GENOVESE, KAREN GRELLA, and GARY SMITH, individually and in their official capacities as members of the Board of Education of the Rochester City School District; LAVAL M. WILSON, in his official capacity as Superintendent of the Rochester City Schools; BERNARD S. GREENBERGER, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; ROBERT LAYS, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; JOSEPH SALEMI, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; THE NEW YORK STATE DEPARTMENT OF EDUCATION; and GORDON M. AMBACH, in his official capacity as Commissioner of the New York State Education Department,

CLASS ACTION COMPLAINT
(Jury trial demanded)

De fendants.

PRELIMINARY STATEMENT
1. This is an action for declaratory and injunctive relief and damages brought by four handicapped students in the Rochester

ji City School District on behalf of themselves and all students similarly situated to challenge the District's failure to provide
I. them with a free, appropriate public education designed to meet their
i-
!j special needs. Plaintiffs allege that the practices and policies of

.,' the Rochester City School District and its agents and employees

! (hereinafter referred to collectively as the "City defendants") with

si regard to evaluation, classification and placement of handicapped

• students in appropriate educational programs violate their rights

•;! u n d e r :
•

(a) the Education of All Handicapped Children Act, 20 U.S.C. §§1401 et seq., and the accompanying regulations at 34 C.F.R. Part 300;

;

(b) Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. §794, and the accompanying regulations at 34

C.F.R. Part 104;

ji

jj

(c) the Fourteenth Amendment to the United States Con- ;

\i

stitution;

;

(d) the Civil Rights Act of 1871, 42 U.S.C. §1983; and

(e) Article 89 of the New York Education Law and accompanying regulations at 8 NYCRR Part 200.

Plaintiffs allege that the New York State Department of

Education and its agents and employees (hereinafter collectively

referred to as the "State defendants") have failed to ensure that all

handicapped children in the District are located, evaluated and

: provided with a free, appropriate public education and that appro-

priate procedural safeguards are available to District students, in

violation of the requirements of the Education of All Handicapped

Children Act, 20 U.S.C. §1401 et seq. and accompanying regulations

at 34 C.F.R. Part 300, and §4402 of the New York Education Law.

- 3-
Plaintiffs and the class seek declaratory and injunctive relief against all defendants' continuing violations of federal and -state law. The named plaintiffs also seek damages pursuant to 42 ; U.S.C. §1983 for physical and emotional harm caused by the City [defendants' violation of their federal statutory and constitutional rights.

<:

JURISDICTION

j'

2. Jurisdiction over plaintiffs' claims is conferred upon

!;this Court by 28 U.S.C. §§1331, 1343(3), and 1343(4) and 20 U.S.C.

§1415(e)(4). Plaintiffs' request for declaratory relief is author-

jiized by 28 U.S.C. §§2201 and 2202. The Court has jurisdiction over |; jjthe plaintiffs' state law claims by virtue of the doctrine of pendent \-

'•• jurisdiction .

3. The named plaintiffs and the members of the plaintiff

iiclass and subclass are suffering immediate and irreparable harm from

-defendants' actions, omissions, practices and policies complained

of herein and will continue to suffer such harm unless defendants are

enjoined and restrained as prayed for below. Plaintiffs have no

^adequate remedy at law.

- 4-

CLASS ACTION ALLEGATIONS

4. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of :

Civil Procedure, plaintiffs bring this action on behalf of them-

selves and a class composed of all other students in the Rochester

City School District (hereinafter "CSD") who have been identified as !

possibly in need of special education and related services by any of j

the following means:

i

(a) An oral or written referral for evaluation made by an agent or employee of the CSD to a school adminis- : trator, an evaluation team, or to the Committee on the Handicapped;

(b) An oral or written request for evaluation made by an ; agent or employee of the CSD or any other interested I person to any other agent or employee of the CSD;

(c) An oral or written request for evaluation and/or

provision of a special program made by the child's

parent to any agent or employee of the CSD.

|

5. Plaintiffs also seek to represent a subclass composed of \

all students in the CSD who have been identified as handicapped by

any of the following means:

(a) Oral or written notification of the students' parent by an agent or employee of the CSD that the student has been found to have a handicapping condition;

(b) Placement of the student in a special education program of the CSD or provision to the student with special education services by the CSD;

(c) Obtaining from the student's parent a "consent" to a handicapped classification and proposed placement by an agent or employee of the CSD;

(d) Determination by a CSD Special Educational Services team (hereinafter "SES team") that the student has a handicapping condition.

- 5-
6. The prerequisites to a class action enumerated in Rule
23(a) of the Federal Rules of Civil Procedure are satisfied in this
case .
7. On information and belief, the class and subclass are so
numerous that joinder of all members is impracticable.
8. On information and belief, there are over 35,000 children
presently enrolled in the CSD.
9. On information and belief, over 4,000 of the children
presently enrolled in the CSD have been identified as handicapped or '•
potentially handicapped by the City defendants.
10. On information and belief, over 500 children enrolled in
the CSD were identified as possibly in need of special education and ;
i
related services and/or were referred for evaluation between Sep-
•\ tember, 1980 and February 1981.
11. There are substantial questions of law and fact presented >
in this action which are common to all members of the class and
subclass. With regard to the class, these questions include: (a) Have the City defendants failed to develop and implement a procedure for identifying, locating and evaluating students thought to be handicapped which ensures that such students will be evaluated and classified within thirty days of referral?
(b) Do the City defendants place students in special education programs or determine that students are not handicapped without performing full individual evaluations meeting the requirements of federal and state law?
i
(c) Have the City defendants failed to develop and implement procedures for obtaining parental consent meeting the requirements of federal and state law prior to evaluation?
(d) Have the City defendants failed to develop and implement procedures for giving parents notice when they intend to find that a student is not handicapped which meet the requirements of federal and state law?

- 6-
(e) Do the City defendants remove students from their current educational placements and/or refuse to enroll students in school during the pendency of evaluation and placement proceedings?
(f) Have the State defendants failed to ensure that the City defendants have established and implemented identification, referral and evaluation procedures and procedures for notification of parents of special education decisions meeting the requirements of federal and state law?
With regard to the subclass, these questions include:
(g) Do the City defendants fail to place students with handicapping conditions in appropriate educational programs within 30 days of their classification as handicapped students?
(h) Do the City defendants fail to develop individualized education programs for handicapped students in the manner and within the time limits prescribed by federal and state law?
(i) Do the City defendants fail to provide handicapped students and their parents with written notice prior to any proposal or refusal to change or initiate such students' special education program as mandated by federal and state law?
(j) Do the City defendants fail to provide handicapped students with nonacademic and extracurricular services and activities and physical education in a manner which affords them equal opportunity for participation in such activities?
(k) Do the City defendants afford parents of handicapped students who complain about their child's classification or placement with impartial due process hearings as required by federal and state law?
(1) Do the City defendants misinform parents of handicapped students as to the availability of private and residential placements and fail to make such placements available to handicapped students who require them?
(m) Have the State defendants failed to insure that the City defendants properly develop and implement individualized education programs for each handicapped

- 7-

j

child, provide each handicapped child with an appro-

priate education program in a timely manner, and

establish and implement procedural safeguards meet-

ing the requirements of federal and state law?

i

12. The claims of the plaintiffs are typical of the claims of

! the class and subclass and predominate over any questions affecting

only individual members.

13. The named plaintiffs are presently in need of or will in i

the future need appropriate, individualized special education and

related services, prompt, appropriate, evaluation and re-evaluation

when indicated, full and adequate notice prior to changes in their

placement or programs, prompt appropriate placement when indicated,

. and properly developed and implemented individualized education

'',

i

' programs on a regular basis. They will fairly and adequately protect \

the interests of the class and subclass, and, in supporting their own • 1 claims, will simultaneously advance the claims of other class and >
subclass members. Plaintiffs are represented by counsel experienced ;

in civil rights and class action litigation.

14. Plaintiffs bring this action under Rule 23(b)(2) of the

Federal Rules of Civil Procedure because the City and State defen-

dants have acted or refused to act on grounds generally applicable

to the class and subclass, thereby making injunctive and declaratory

relief appropriate with respect to the classes as a whole.

- 8 -

ji

PARTIES

;•;

1 5 . Plaintiff 3. G. is an eighteen-year-old citizen of the

ji

,; United S t a t e s who p r e s e n t l y r e s i d e s in the R o c h e s t e r P s y c h i a t r i c

|i C e n t e r , R o c h e s t e r , New Y o r k . This action is b r o u g h t on h i s b e h a l f

by his mother, M r s . G., who acts as his next friend for purposes of

"' this l i t i g a t i o n . M r s . G. r e s i d e s at 224 M o r t o n S t r e e t , R o c h e s t e r ,

New Y o r k . 3. G. and M r s . G. bring this action a n o n y m o u s l y to avoid

•'. i n v a s i o n of their p r i v a c y . Their true n a m e s will be filed under seal
'•
I; with this Court.

• •

16. Plaintiff M. W. is a sixteen-year-old citizen of the

; United States who resides with her mother at 120 Avenue D, Rochester,

New York. Her mother and next friend, Mrs. W., brings this action

on her behalf. M. W. and Mrs. W. bring this action anonymously to
is
: avoid invasion of their privacy. Their true names will be filed

under seal with this Court.

17. Plaintiff A. M. is a fourteen-year-old citizen of the

United States who resides with his mother at 1552 St. Paul Street,
j,
i Rochester, New York. His mother and next friend, Mrs. M., brings

this action on his behalf. A. M. and Mrs. M. bring this action

anonymously to avoid invasion of their privacy. Their true names

will be filed under seal with this Court.

\-

18. Plaintiff K. M. is a nine-year-old citizen of the United

States who resides with her mother at 1552 St. Paul Street, Roches-
t'
;; ter, New York. Her mother and next friend, Mrs. M., brings this

\\ action on her behalf. K. M. and Mrs. M. bring this action anonymously

- 9-

to avoid invasion of their privacy. Their true names will be filed

under seal with this Court.

19. The Board of Education of the Rochester City School

District (hereinafter "the Board") is a body corporate charged with

the duty to operate and manage the educational affairs of the City

School District in compliance with federal and state law. Among

other duties the Board is responsible for providing a free, appro-

: priate education to all handicapped students of the District. It is !. a "local educational agency" as that term is defined in 20 U.S.C.

§1401(8). For this purpose, and for the operation of its other

educational programs and activities, the Board receives federal

financial assistance.

20. Defendants John DelVecchio, Archie Curry, Irene Frusci,

Josephine Genovese, Frank Willis, Karen Grella and Gary Smith are the

• duly elected members of the above-described Board of Education and

are charged with carrying out the duties of the Board. They are sued

both individually and in their official capacities.

21. Defendant Laval M. Wilson is Superintendent of Schools of

the CSD. He is the chief executive officer of the Board, and, in this

capacity, he is statutorily charged with the duty of enforcing all 1 provisions of law and all rules and regulations relating to the

management of schools and other educational activities under the

Board's direction. He is sued in his official capacity.

i,

22. Defendant Bernard S. Greenberger is Director of the De-

i! partment of Special Education for the CSD. In this capacity he is

j responsible for providing a free, appropriate public education to

- 10 -

all handicapped students of the District, in accordance with both

| federal and state laws and regulations. Defendant Greenberger is

j! also C h a i r m a n of the CSD Committee on the H a n d i c a p p e d . In this ii jj capacity he is r e s p o n s i b l e for i d e n t i f i c a t i o n , c l a s s i f i c a t i o n and
j placement of all handicapped children within the District. He is

! sued both individually and in his official capacity.

23. Defendant Robert Lays was at all times relevant hereto an

I Assistant Director of the Department of Special Education forthe

1 CSD. In this capacity he w a s responsible for providing a f r e e ,

i appropriate public education to handicapped students of the District

ij in a c c o r d a n c e with both federal and state laws and r e g u l a t i o n s . He

Ij is sued i n d i v i d u a l l y and in h i s official c a p a c i t y .

ii

2 4 . Defendant Joseph Salemi was at all times relevant hereto

anAssistant Director of the Department of Special Education for the

•\ CSD. In this capacity he w a s r e s p o n s i b l e for p r o v i d i n g a f r e e ,

;; a p p r o p r i a t e public e d u c a t i o n to h a n d i c a p p e d s t u d e n t s of the D i s -

trict, in accordance with both federal and state laws and regu-
i
ij l a t i o n s . He is sued individually and in h i s o f f i c i a l c a p a c i t y .

[:

25. Defendant New York State Education Department is a state

j agency charged with general management and supervision of all public

: schools and all educational activity in the State of New York. It

ij is a "State e d u c a t i o n a l a g e n c y " as that term is defined in 20 U . S . C .

jl § 1 4 0 1 ( 7 ) . As such it is r e s p o n s i b l e for assuring that all e d u ji
|Jji cational p r o g r a m s for handicapped children within the state are
| administered in compliance with federal and state laws. It is a ii recipient of federal funds for various educational programs, in-

- 11 -

jl eluding funds made available for special education programs and

ji related services.
li

j!

25a. Defendant Ambach is the Commissioner and chief executive

({officer of the New York State Education Department. In this capacity

;! he is responsible for assuring that all educational programs for : )
i]

handicapped children within the state are administered in compliance

li with federal and state laws. He is sued in his official capacity.
STATUTES INVOLVED

|i

26. The Education of All Handicapped Children Act, 20 U.S.C.

i|

I! §§1401, et seq. (hereinafter referred to as the "EAHCA") requires

'that all school districts which receive funds under the Act take

''affirmative steps to identify, locate, evaluate and place in appro-
il
Jjpriate educational programs all handicapped children in their dis-

t r i c t . Such children must be provided with a free, appropriate

:.public education, at no cost to the parents, in the least restrictive

';educational environment appropriate to the needs of the child.

is

27. The EAHCA and the accompanying regulations set up a

j'detailed mechanism for ensuring that each handicapped child's pro-

gram is individually designed to meet his/her particular needs and

; to ensure maximum parental input and involvement at every stage of

lithe process. The regulations require, inter alia;

'\

(a) notice to parents and parental consent when evalu-

I:

ative information is being sought regarding a child

':

thought to be handicapped;

!j

i:

(b) extensive evaluations by a multidisciplinary team of

professionals, including testing in the area of the

:,

child's suspected disability;

(c) the opportunity for a child's parent to meet with the

multidisciplinary team prior to their making a rec-

ommendation as to the child's classification or

rv 1 *•» O r% m r~\ n i- •

- 12 -
(d) written notification of parents when a school district proposes to initiate or change or refuses to initiate or change a child's special education placement, based on the evaluations conducted, including:
i. a full explanation of all the procedural safeguards available to parents under the Act (see (e) below );
ii. a description and explanation of the proposed action or refusal to act;
iii. a description of any other options considered by the agency and why they were rejected;
iv. a description of each evaluation procedure, test, record or report used as a basis for the proposed action or inaction; and
v. a description of any other relevant factors considered by the agency in making its recommendation.
(e) extensive procedural safeguards, including:
i. the right to an independent evaluation at public expense if the parent disagrees with the agency's evaluation;
ii. the right to an impartial due process hearing if the parent disagrees with the proposed classification or placement, including the right to counsel, the right to present evidence, crossexamine witnesses and compel the attendance of witnesses, the right to have all evidence proposed to be used by the agency disclosed five days in advance of the hearing, the right to a decision within 45 days of the request for a hearing;
iii. the right to appeal the hearing officer's decision to the State educational agency;
iv. the right to bring a civil action in federal or state court to challenge the decision of the State educational agency;

- 13 -
v. the right to have the child remain in his/her then-current educational placement, or, if applying for initial admission to a school, to be admitted, pending the final resolution of any administrative and/or judicial proceedings;
(f) development, with parental involvement, of an individualized education program (hereinafter "IEP") for each handicapped child, which must be in place before the child is placed in a special educational program, and which must include, inter alia, a description of the specific programs and services to be provided to the child;
(g) creation of a continuum of alternative placements sufficient to provide for the needs of all handicapped students in the District; and
(h) provision of a scope and range of nonacademic services and activities, including physical education, equivalent to those provided to nonhandicapped students.
28. The EAHCA also creates substantial monitoring and enfor-
cement duties for the State education agency and makes that agency
ultimately responsible for the provision of a free appropriate
education to every handicapped child in the State.
29. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§794 (hereinafter "Section 504"), states that no otherwise qualified
handicapped individual may, by reason of his/her handicap, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
federal financial assistance.
30. Section 504 and its implementing regulations adopt and
incorporate the EAHCA procedures and requirements set forth above as
a means of ensuring that educational agencies do not discriminate
against students on the basis of handicap.

31. Article 89 of the New York Education Law and the accom- !
i
panying Commissioner's Regulations at 8 NYCRR, Part 200 incorporate i

the substantive and procedural requirements of the EAHCA enumerated j
i
above. The regulations also set forth specific time limits which !
i
must be observed by school districts when a referral for evaluation !

and placement has been made. These time limits require:

j

(a) the multidisciplinary team making the evaluations j

and recommendations (known in New York as the district's Committee t on the Handicapped or COH) must make a determination of eligibility i

and classification for placement within thirty days of receipt of a ,

re ferral ;

j

(b) actual placement of a handicapped child in the ap- I

propriate educational program must occur within an additional thirty

!j days .

32. The New York regulations also provide that a district may

create subcommittees of the COH to perform the duties of the COH.

Such subcommittees must be similarly constituted to the COH, includ-

ing as members at least a school psychologist, a teacher or admin-

istrator of special education, a school physician, and a parent of

a handicapped child residing in the school district. This compo-

sition of the COH or one of its subcommittees is mandated by federal

law.

- 15 -
FACTUAL ALLEGATIONS FACTS PERTAINING TO THE INDIVIDUAL PLAINTIFFS PLAINTIFF 3. G. 33. 3. G. is an eighteen-year-old seriously emotionally disturbed student who has been hospitalized on several occasions during the past two-and-one-half years for chronic paranoid schizophrenia. 34. 3. G. was hospitalized for the first time in August, 1978, when he was admitted to Strong Memorial Hospital in Rochester, New York. 35. In approximately September, 1978, 3. G.'s physicians informed the CSD of his hospitalization and diagnosis and requested that he be given instruction at the hospital. 36. On or about October 24, 1978 the CSD assigned a Special jt Education tutor to 3. G. A copy of the letter evidencing this assignment is attached hereto and incorporated herein by reference as plaintiffs' Exhibit "A". 37. Prior to the initiation of this Special Education program, the CSD performed no evaluations, gave no written notice to 3. G.'s parent of his proposed classification, and did not develop an IEP for him . 38. In early 1979, after his discharge from Strong Memorial Hospital, 3. G. attempted to re-enroll in East High School, his home school in the CSD. 39. At this time 3. G. was informed that he could not return i to East High School until he had undergone evaluation by the school psychologist; instead 3. G. was assigned to a recreational vehicles

- 16 -

jjvocational program at the Whitney Street Annex.

\

40. Subsequently a school psychologist determined that 3.

;;G.'s mental health would not allow his return to East High School;

i;instead a plumbing class was added to his schedule and he received jitutoring three to five days per week for approximately one hour each

'Jday.

41. Prior to the initiation of this new program, 3. G. and his

iimother were never informed that he had the right to enroll in his

(regular school while any evaluations were completed. No classifi-

cation and recommendation for placement was made by the COH, no

|;notice was sent and no IEP was developed with parental input.

1;

42. At the time he was placed in the plumbing class, 3. G. had

ijno desire to receive training in plumbing. He accepted this

(placement, and attended school sporadically, because CSD employees

:told him it was the only available program.

43. In March, 1979, 3. G.'s condition deteriorated, and he was

rehospitalized at Strong Memorial Hospital until April, 1979. Upon

^discharge from Strong, 3. G. again resumed limited vocational

education and tutoring three times each week.

44. In 3une , 1979 a CSD Student Educational Services team

reviewed 3. G.'s placement and determined he should continue to

receive vocational instruction and tutoring. On information and

•belief, this SES team was not a properly constituted subcommittee of

•the Committee on the Handicapped, nor did it refer 3. G. to the COH

i|or a subcommittee of the COH. On information and belief, the SES team

- 17 -

made no attempt to evaluate 3. G. prior to making this recom-

mendation, nor did they meet with his parent. The notification sent i

i! to 3. G.'s mother did not inform her in sufficient detail of the

;i procedural safeguards available to her under the EAHCA or specify

'which evaluations, tests, records or reports were used in reaching

|; their decision. No IEP planning conference was scheduled and no IEP

was developed with parental input.

!

45. During the 1979-80 school year 3. G. attended one class at

i

'Edison High School (which replaced the Whitney Street Annex) five

; days per week and received tutoring at Edison for one hour, five

times each week.

:

46. In October, 1979 3. G. was dropped from one of his

vocational courses and enrolled in another vocational program with-

out SES or COH involvement and without any written notice to his

>parent.

47. Although 3. G. had requested placement in a regular

physical education class, from the time of his first discharge from

Strong Memorial Hospital until February, 1980, the City defendants

refused to provide him with any form of physical education.

48. As the result of defendant's failure to provide 3. G. with

an appropriate educational environment, he refused to attend school

and his condition deteriorated to the point where he required

•hospitalization.

;

49. In approximately November, 1979, 3. G.'s mother, real-

sizing that her son's condition was deteriorating, asked 3. G.'s

- 18 -

counselor whether the CSD would pay for J. G.'s residential place-

ment. After consulting with a CSD psychologist, the counselor

i\ informed her that it was not CSD policy to pay for residential

• ) placement.

;

50. In January, 1980, 3. G.'s deterioration necessitated his

, re-admission to Strong Memorial Hospital, and in February he was

admitted to the Youth Division of Rochester Psychiatric Center a

state hospital for mentally ill people.

;;

51. 3. G.'s mother notified his counselor that 3. G. had been

:; rehospitalized and requested that tutoring be continued at the

Psychiatric Center.

52. In April, 1980 3. G.'s mother received a letter from Joseph

Salemi, Assistant Director of the CSD Special Education Department,

ji indicating that the CSD would not continue to provide a tutor while

her son was institutionalized. A copy of this letter is attached

hereto and incorporated herein by reference as plaintiffs' Exhibit

B.

53. As a result of the City defendants' failure to continue his

tutoring J. G. did not receive appropriate educational services from

March through June, 1980.

54. In approximately April, 1980, 3. G.'s treating physicians

recommended his educational placement at a residential school. On

information and belief the City defendants were informed of this

recommendation but they never acted upon it.

ii

55. During the period complained of herein, the City defen-

, dants did not refer 3. G. to the COH or one of its subcommittees for

- 19 -
ii

{ classification as a handicapped student. They did not notify J. G. 's

j mother of her right to request a due process hearing each time she

j complained about her son's educational placement.

56. During the period complained of herein, the City defen-

j) dants did not give 3. G.'s mother written notice prior to initiating

ji each change in his educational program. They at no time developed
; : j; an IEP for 3. G. with appropriate parental input.
i

||

57. During the summer of 1980, 3. G.'s mother sought assis-

i'j tance from the Monroe County Youth Advocacy Project. With the

ji assistance of an advocate, she requested re-evaluation of 3. G.'s

!; condition and a meeting with the COH concerning his classification

!• and placement.

j,

58. In September, 1980, 3. G., through his mother, filed an

administrative complaint with the Office of Special Education,

• United States Department of Education, in which she challenged the

: CSD's failure to grant 3. G. rights arising under the Education of

All Handicapped Children Act, 20 U.S.C. §§1401 e_t seq . No final

j: action has been taken on this complaint.

'<> 59. As a result of Mrs. G.'s vigorous protests concerning the

I CSD's failure to comply with the EAHCA to federal and state agencies

' and to her legislators, and as a result of the active involvement in

|i her case of her advocate, the City defendants are presently at-

|1 tempting to provide 3. G. with educational services in compliance

ji with legal requirements. However, 3. G. has already suffered a

serious and irremediable loss of educational opportunities, as well

ij as emotional distress and deterioration in his condition as a result

1 of the City defendants' failure to provide him with appropriate

;; educational services.

- 20 -

1 PLAINTIFF M.W.

60. Plaintiff M. W. is a visually-impaired sixteen-year-old
J!
i'< girl. She is blind in one eye and with best correction, has visual i;.

j; acuity of 20/50 in her better eye. Her impairment stems from a

;; congenital cataract condition. Furthermore, various tests have

s indicated M. W. has an emotional handicap and that she is mentally

H retarded. ji

|j

6 1 . During her early years in the CSD schools, M. W. was in

'! special classes for visually-impaired students.

62. On or about May 17, 1978 M. W.'s mother, Mrs. W., consented

';'. to placement of her daughter in a classroom for emotionally handi-

: capped children. Prior to consenting to this placement Mrs. W.

,: received no written notice from the CSD.

jj

63. At the meeting during which Mrs. W. consented to place-

s' merit, members of the CSD Special Needs Committee (predecessor of the

,. SES team) explained her daughter's need for special education. Mrs.

W. signed an otherwise blank form indicating that she consented to

I, the proposed placement. Mrs. W. was not informed that her consent

'was revocable, nor was she informed of her daughter's rights as a

handicapped student.

64. On information and belief, neither the COH nor its sub-

: committee reviewed M. W.'s proposed classification or placement

\] because the Special Needs Committee never referred her to the COH.

I;

65. M. W. was not placed in a classroom for emotionally

li

J> handicapped children until October 5, 1978.

- 21 -

66. From May, 1978 until at least October, 1978 Mrs. W. was not :

informed of her daughter's right to be placed in an appropriate ! i
i
educational program within thirty days after identification as a !

handicapped child.

67. M. W. attended an emotionally handicapped class at Fred- '

:; erick Douglass Junior High School from October, 1978 until May, 1979, j

when her family moved to Potsdam, New York. M. W.'s family returned

to Rochester in August, 1979.

68. In September, 1979 Mrs. W. requested that M. W. be re-

\, enrolled in an emotionally handicapped class in the CSD.

i!

69. Mrs. W. requested placement at East High School, M. W.'s

• home school, or at Frederick Douglass Junior High School. Her . : request was denied by defendant Robert Lays because both programs

I! were filled. Instead, defendant Lays offered M. W. a placement in i

ij another emotionally handicapped class, farther from her home, which '

; was already filled to capacity with ten boys. Mrs. W. informed

defendant Lays that the proposed placement was unacceptable because

i the school was not a neighborhood school and because she did not

; think her daughter would adjust to a class in which she was the only

girl. Defendant Lays informed Mrs. W. that he would seek another

placement for M. W.

70. At no time did defendant Lays inform Mrs. W. of her

;• daughter's right to contest the proposed placement, of her right to

, return to her last educational placement pending resolution of the

\ matter, or of her other due process rights. At no time did defendant

- 22 -

Lays initiate a hearing or inform Mrs. W. of how she could request j

i

a hearing to contest the proposed placement.

i

71. On information and belief, defendant Lays took no af- '

firmative action to place M. W. in an appropriate educational program ;

until March, 1980.

j

72. M. W. remained at home without receiving any educational j

services for the entire 1979-80 school year.

73. In March, 1980, Mrs. W., frustrated by defendants' failure

to place her daughter in an emotionally handicapped class, consented ;

to M. W.'s declassification as a handicapped student and to her

. placement in the Achievement Program, a program for slow learners who

are not considered handicapped.

74. Mrs. W. received no written notice from the CSD prior to ;

Si consenting to M. W.'s placement in the Achievement Program.

75. On information and belief, the change in M. W.'s class-

ification was necessitated, not by a change in her handicapping

condition, but by the City defendant's failure to develop a suffi-

cient number of emotionally handicapped classes.

76. On information and belief, neither the COH nor its sub-

committee reviewed or approved the change in M. W.'s classification.

77. On information and belief, the City defendants completed

a psychological evaluation of M. W. in April, 1980, after Mrs. W.'s

consent to M. W.'s declassification as a handicapped child had

already been obtained. As a result of this evaluation, M. W. was

determined not to have a handicapping condition.

78. Despite Mrs. W.'s consent to a non-handicapped placement

in March, 1980, on or about April 17, 1980, defendant Salemi authored

- 23 -

a memorandum in which he stated that M. W. should not be accepted into

the proposed placement because it was so late in the school year.

79. M. W. was not enrolled in the proposed placement during the

remainder of the 1979-80 school year.

80. Prior to the beginning of the 1980-81 school year, Mrs. W.

received no written notice of M. W.'s placement for that year.

81. On or about September 12, 1980, Mrs. W. informed defendant

Lays that her daughter needed placement in a special class.

j

82. Defendant Lays failed to inform Mrs. W. of her daughter's i

procedural rights under federal and state law or to initiate a j

hearing on her behalf.

j

83. On or about September 24, 1980, Mrs. W. signed a parental I

approval slip authorizing her daughter's placement in the Achievement j

Program, a nonhandicapped placement.

84. Mrs. W. was not notified in writing of the available j

procedural rights prior to signing the parental approval slip. The ]

parental approval slip did not contain a statement that the approval ;

i

was revocable .

;

85. In October, 1980 M. W. was placed in the Achievement

Program at Franklin.

'

86. On or about October 27, 1980, M. W.'s doctor, James D. Lee,

requested that M. W. be evaluated for possible handicapping con-

ditions. A copy of this request is attached hereto and incorporated

herein as plaintiffs' Exhibit C.

87. On or about November 3, 1980, defendant Greenberger wrote

to Dr. Lee stating that M. W. had been evaluated in April, 1980 and

- 24 -
that she was found not to have a handicapping condition. A copy of this letter is attached hereto and incorporated herein by reference as plaintiffs' Exhibit D.
88. On information and belief, neither defendant Greenberger nor any other employee of the CSD informed Mrs. W. of her procedural rights, including a right to obtain an independent evaluation, or initiated a hearing.
89. M. W. has been attending a slow learners class at Benjamin Franklin High School since October, 1980. She is failing most of her courses and is receiving no special education or related services designed to meet her specific needs.
90. Mrs. W. has never been invited to attend a planning conference to develop an IEP for M. W.
91. On information and belief, no IEP has ever been developed for M. W.
PLAINTIFF A. M. 92. Plaintiff A. M. is an eighth grade student in the CSD with
a specific learning disability. He has a normal IQ, achieves at close to grade level in mathematics and reads at approximately a third grade level.
93. In early 1979, when A. M. was in the sixth grade at School No. 22, his mother recommended that he be referred for evaluation as a handicapped child.
94. In response to this request, A. M.'s teacher referred him to the Student Educational Services team for testing on or about

- 25 -

!' March 20, 1979. This referral was "approved" by the School No. 22

;. Vice-principal on or about March 29, 1979. A copy of the referral ; form is attached hereto and incorporated herein as plaintiffs'

Exhibit E.

95. On information and belief, the City defendants did not

evaluate A. M. and he completed the sixth grade without having been

.;•• identified as a handicapped student and without having been provided

with an appropriate educational program.

;

96.

ji

'' School.

In September, 1979, A. M . entered Interim Junior High Interim Junior High School is a special magnet school,

drawing children from throughout the CSD and some suburban dis-

tricts. It is an ungraded junior high school and is best described

as a school without walls, in which children contract to perform

|| certain tasks in an open school environment.

97. At the time he entered Interim, a CSD employee noticed that

, A. M. had not been evaluated pursuant to the March, 1979 referral and

again requested an evaluation. A copy of this request is attached

hereto and incorporated herein as plaintiffs' Exhibit F.

)'

98. On or about September 28, 1979, another request for

' evaluation was sent to the SES team at Interim. A copy of this

request is attached hereto and incorporated herein as plaintiffs'

t Exhibit G.

,

99. On or about January 16, 1980, Mrs. M. met with two members

j: of the Interim SES team to discuss A. M.'s placement. They informed
i:
!; Mrs. M. that A. M. had a specific learning disability and that he
I;
needed a learning disability placement.

- 26 -

100. At the January 16, 1980 meeting, Mrs. M. was further

: informed that no learning disability program existed at Interim and that A. M would have to transfer out of the magnet school in order

to be placed in a learning disability program.

101. Mrs. M., concerned that her child would not adjust to a

transfer in the middle of the year, requested that A. M. be allowed

to finish the year at Interim. The SES team members agreed to this.

,.

102. At this conference, Mrs. M. further stated that she did not

': want A. M. to attend the learning disability program at Benjamin

Franklin Junior/Senior High School, his neighborhood school, be-

cause she felt a Senior High School atmosphere would overwhelm her

son, who was socially immature and very sensitive to any criticism

about his inability to read. She also felt that A. M.'s placement

il in a school of over 2,000 students would be extremely inappropriate

for her son .

J

i

103. A team member agreed with Mrs. M. that Franklin was an i

inappropriate placement for A. M., given his psychological make-up.

He recommended that Frederick Douglass Junior High School would be

more appropriate for A. M.'s eighth grade placement.

104. In reliance on the representation that A. M. could trans-

fer to Douglass, Mrs. M. consented to her son's placement.

105. On or about January 22, 1980, Mrs. M. signed the consent

, form attached hereto and incorporated herein as plaintiffs' Exhibit

106. Prior to signing the consent to placement, Mrs. M. re- j ceived no written notice of the tests and/or reports on which the

- 27 -

proposed classification of A. M. was based; she received no written

or oral notice of her right to obtain an independent educational

evaluation and a list of places where one could be obtained; she

received no oral or written notice of her right to obtain a hearing j

or of procedural safeguards to protect her son's educational rights;

she received no oral or written notice of the availability of free

legal assistance; and she received no written or oral notice that the

-.. aforementioned consent was revocable.

j

107. On or about January 23, 1980, the SES team recommended a j

learning disability placement for A. M. at Douglass beginning in j

September, 1980. A copy of this recommendation is attached hereto

and incorporated herein as plaintiffs' Exhibit I.

108. On information and belief, neither the COH nor any of its j

|i subcommittees reviewed A. M.'s evaluations or made a recommendation

concerning A. M.'s placement.

j

109. On information and belief, A. M.'s referral form went to j

the CSD Central Office, where an employee assigned A. M. to Benjamin .

Franklin Junior/Senior High School.

i

110. This assignment was made pursuant to a school district ;

policy that handicapped children must,whenever possible, be educated ;

at their neighborhood schools. This policy was applied in abrogation j

of the terms of the consent form signed by Mrs. M., without oral or j

written notice to her and without referring the matter to the COH. \

111. In August, 1980, Mrs. M. received written notification |

i from defendants that A. M. was enrolled at Franklin for the 1980-1981 j

j

school year.

*

j

- 28 -

,

112. Mrs. M. informed employees of the CSD that a mistake had

been made and that, rather than allow A. M. to enter Franklin, she |
i
: would prefer that he return to Interim pending resolution of the j
i
matter .

113. At the beginning of the 1980-1981 school year, A. M. |

returned to Interim, where he attended school until approximately j

September 17, 1980.

114. On or about September 17, 1980, A. M.'s guidance counselor j

informed Mrs. M. that A. M. was attending Interim illegally and that i

he would be removed from school until the matter was resolved. ;

'•

115. On or about September 18, 1980, Mrs. M. requested that the

COH meet to discuss A. M.'s educational placement.

116. On or about September 29, 1980, Mrs. M. met with the COH.

jj

117. On or about October 1, 1980, the COH issued its recom-

mendation that A. M. be placed in a seventh grade learning dis- i

abilities program at Frederick Douglass Junior High School. A copy i

of this recommendation is attached hereto and incorporated herein as

I: plaintiffs' Exhibit J.

118. On or about October 11, 1980, Mrs. M. took A. M. to

Douglass to attempt to enroll him in an eighth grade learning

disabilities program because he had completed seventh grade at

Interim.

119. At this time Mr. Glasier, a dean at Douglass, informed Mrs.

M. that there were no seventh or eighth grade learning disabilities >

j; placements at Douglass and that the COH erred when it recommended :

that A. M. attend Douglass.

- 29 -

jl

120. Mrs. M., through her attorney, secured A. M.'s return to

! Interim. At the time he returned to Interim, A. M. had already missed I

i'

j

(approximately three weeks of school.

j

.• 121. With the assistance of counsel, Mrs. M. appealed from the I

COH's recommendation that A. M. be placed in the seventh grade at ,

Douglass.

j

122. After an impartial hearing, A. M. was placed in an eighth i

»: grade learning disabilities program at Douglass and began attending ;

i: classes there on or about November 2, 1980.

\

i

123. On or about January 15, 1981, Mrs. M. received a letter ;

it from A. M.'s learning disabilities teacher, along with a partially j

completed Individualized Education Program. Copies of the letter

and IEP are attached hereto and incorporated herein as plaintiffs'

jj Exhibits K and t.

124. This was the first IEP which Mrs. M. had seen for A. M. She

was never invited to attend any meetings to develop this IEP, and she

did not participate in its development.

PLAINTIFF K. M.

125. K. M. is a nine-year-old who presently attends fourth

grade at School No. 42. Her mother suspects she has a specific

: learning disability similar to that of her brother, plaintiff A. M.

I

126. On or about September 30, 1980, Mrs. M. requested in

\\ writing

i!

- 30 -

hthat defendants evaluate K. M. for a suspected handicapping con-
i!
ii dition .

;,

127. Defendants performed a psychological evaluation of K. M.,

jjand in November 1980, the Student Educational Services team deter-

ijmined that K. M. did not have a handicapping condition.

•!

128. In December 1980, the SES team reconsidered K. M.'s

hclassification , decided that she was a handicapped child and recom-

jimended that she be placed in a learning disabilities program.

i',

ij

129. At that time the SES team recommended that K. M. be placed

I1

;j in a learning disabilities program beginning in September, 1981.

j;

130. Mrs. M. received no written notice of her daughter's

:', rights under the EAHCA prior to evaluation of K. M.

;•

131. On or about December 4, 1980, despite the recommendation

||of the SES team, a CSD employee informed Mrs. M. that K. M. had been j j; found not to have a handicapping condition.

I;

132. On information and belief, K. M. was never referred to the

COH or any of its subcommittees for classification and placement.

\. 133. Mrs. M. received no written notice of the tests and/or

•reports on which the SES team's recommendation was based; she

'received no written or oral notice of her right to obtain an

independent educational evaluation and a list of places where one

'could be obtained; she received no oral or written notice of her

>right to obtain a hearing or of procedural safeguards to protect her :

i daughter's educational rights; and she received no oral or written \

•notice of the availability of free legal assistance.

'

- 31 -

FACTS PERTAINING TO THE CLASS AS A WHOLE

\

jj

134. On information and belief, the CSD has elected to comply

(with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794,
ii
jj through compliance with the requirements of the EAHCA and its
ii

jj implementing regulations.

j!

135. The City defendants have failed to adopt and implement

-policies and procedures to ensure that students thought to be

I; handicapped and handicapped students needing modifications in their

j) educational programs are promptly evaluated and classified.

136. Referrals and requests for evaluation are delayed, ig-

jinored or improperly routed due to the City defendants' failure to

ji implement an effective procedure for timely action on such requests

I; and/or referrals.

137. On information and belief over 500 students in the CSD were

-.referred for evaluation between September 1980 and February 1981.

•\ 138. On information and belief over 500 students in the CSD who

were referred for evaluation between September 1980 and February

I-1981 were not evaluated within 30 school days after referral.

:

139. The City defendants have failed to adopt and implement

^policies and procedures to ensure that students who have been

'classified as handicapped and recommended for placement in appro-

priate educational programs are promptly placed in such programs.

140. The City defendants have also failed to develop an adequate

jinumber of programs to provide needed services to handicapped stu-

l!

- 32 -

ij dents and to recommend private and residential placements for
i

handicapped students when indicated.

141. As a result of the policies and practices of the City

ij defendants, handicapped students and students thought to be handi-

capped in the CSD go for months after identification as potentially

ij handicapped without appropriate educational programs and services,

ij and some such students go without any educational program for a month
ii

Ii or more .

142. On information and belief, over 100 students whom the City

j| defendants classified as handicapped between September 1980 and
l; i
Ij February 1981 were not provided with special education and related ii services within 30 school days after classification.
,i

'

143. The City defendants remove handicapped students from

their current educational programs before placement in another more

lj appropriate program has been determined and arranged.

ii

144. Parents are occasionally offered inappropriate alter-

•j natives for temporary placement of their handicapped children. They

ij are not informed of their children's legal right to remain in their

!! then-current educational programs while the COH evaluation/place-

ment process occurs.

145. Similarly, handicapped students attempting to enroll in

i school are prevented from doing so. Parents are not informed that

their handicapped children have a legal right to enroll in school

while COH procedures are pending.

- 33 -

146. On information and belief, the City defendants have esta- I

i blished a system for evaluating students which prevents most stu|
\I dents from ever being evaluated and classified by a properly consti-

! tuted COH.

II

I

147. Each CSD school has an SES team. Each SES team does not

j| include all of the following: a parent, a special education teacher

ij or special education administrator, and a physician.

ji

148. On information and belief the CSD evaluation and classi-

fication policy for students thought to be handicapped operates as
i
I follows:
(a) The SES team decides what tests and other evaluations should be performed.

(b) The tests and other evaluations are performed.

(c) The SES team reviews the results of the tests and i evaluations and recommends whether classification as • a handicapped student is appropriate, and, if so, make a recommendation as to placement of the student.

(d) When classification and placement as a handicapped student are recommended a member or members of the SES team meet with the parent, explain the proposed classification and placement, and obtain parental consent.

(e) Where the SES team has obtained parental consent to a proposed classification and placement, neither the COH nor any subcommittee of the COH reviews the classification or placement. The proposed placement is then implemented by CSD administrators.

(f) When classification and placement as a handicapped student are not recommended by the SES team, no further action is taken. The matter is referred to neither the COH nor any of its subcommittees.

149. The City defendants do not give parents written notice of

- 34 -

their procedural rights prior to initiating evaluations of students i

> thought to be handicapped or of handicapped students thought to j

i; require a change in placement or program.

'

|l

150. The City defendants do not give parents written notice of I

;: their procedural rights when they propose to or refuse to initiate j i
or change the program or placement of a handicapped student or a j
student thought to be handicapped.

;;

151. Such notices must inform parents of their right to obtain

| an independent evaluation, possibly at public expense; their right

i- to an impartial hearing on the SES or COH recommendation and the

|; names of organizations which provide free representation in such ;

. matters; their child's right to remain in his/her then-current

educational placement pending resolution of the matter', and numerous

j! other procedural rights of which parents are generally unaware.

i

152. Instead of giving parents written notices of their rights,

the City defendants routinely obtain parental signatures agreeing to

a proposed placement on a "checklist" type of form.

;'

153. This "consent" form does not fully inform parents of their

;: rights (see, e.g., plaintiffs' Exhibit H ) . Sometimes parental

signatures are obtained while the form is still otherwise blank.

;• Even when the "blanks" are checked to indicate that certain inforn j! mation has been provided to a parent, often such information has not

!• in fact been provided.

ij

i

154. As a result of this practice, parents are given the

j impression that the option chosen for their child is the only option j;

;( a v a i l a b l e and that they are p o w e r l e s s to a f f e c t the d e c i s i o n b e i n g

II made .

- 35 -

155. Even when a parent does protest a proposed classification

or placement, CSD officials do not give written notice to the parent

of his/her procedural rights, nor do CSD employees initiate a hearing

on the parental complaint.

156. Only when a parent on his or her own initiative enlists the

aid of an advocate or attorney do the City defendants respond to

• parental protests by providing written notice of procedural rights I
and impartial hearings. Efforts by advocates and attorneys gen- :
i
erally result in a successful resolution of the individual student's •

situation, but because the City defendants refuse to alter the j

practices complained of herein, hundreds of unrepresented CSD stu- j I

dents are denied appropriate educational services every school year. !

157. The City defendants have failed to adopt and implement \

'! policies and procedures to obtain required parental input before

students' Individualized Education Programs are developed. Speci-

fically, they fail to hold meetings to develop IEPs within 30 j

calendar days after students are classified as handicapped.

158. Rather than being invited to attend IEP planning con- I

ferences, parents are often sent a completed or blank IEP for their i

child and instructed to sign on the dotted line (see, e.g., plain-

tiffs' Exhibits K and L ) .

159. The City defendants knew or should have known that their ,

conduct and policies failed to comply with the requirements of

• \ federal and state law.
j;

!;

160. The State defendants have failed to undertake sufficient

, monitoring and evaluation activities and to develop adequate pro- ;

':

j

I

- 36 -

cedures for monitoring and evaluation to insure that handicapped

students in the Rochester City School District are provided appro-

priate educational programs meeting the requirements of federal law

and the educational standards of the State Department of Education

and that the funds received by the CSD for the education of handi-

capped children are spent in the manner required by federal and state

law.

I

j

161. The State defendants have failed to insure that all j
i

handicapped children in the CSD are identified, located and evalu- |

ated in a timely manner and that an IEP is developed and promptly :

implemented for each handicapped child.

162. The State defendants have failed to insure that the City

defendants are able to establish and maintain programs of sufficient j

\' size and scope to effectively meet the educational needs of handi-

capped students.

163. The State defendants have failed to insure that the City

defendants have established and implemented all the procedural

safeguards guaranteed to handicapped students by federal and state i

law. They have also failed to insure the implementation of evalu- '••

ation procedures, the development of a continuum of alternative

placements based on properly developed IEPs, and the provision of

academic, nonacademic and extracurricular services which meet the |
i

requirements of federal and state law.

164. Exhaustion of any administrative remedies would be futile

; in this matter.

- 37 -

165. This action challenges as inadequate the very procedures

by which administrative review takes place at the local level.

Plaintiffs allege herein that the administrative review rights

accorded to handicapped students and those students thought to be
i
handicapped are both inadequate as designed and administered by the j

City defendants. Particularly, the plaintiffs allege that the I i

inadequate notice of procedural rights given to parents precludes •

them from ever invoking these rights. The administrative remedies !

which do exist are also inadequate in that theydo not accord the full '•

scope of relief sought by plaintiffs. Those plaintiffs who have

participated in the administrative process have achieved some lim- ;

ited individual relief but have been unable to achieve any meaningful

changes in the system. The administrative process also cannot offer

ji

j

i the injunctive and compensatory relief sought herein. Finally the

i
administrative process is excessively time consuming for students !

who have only a limited time during which they are entitled to a free,

appropriate public education.

166. All named plaintiffs and all members of the plaintiff

class and subclass remain subject to the operation of the policies

and practices complained of herein. Handicapped students must have

their IEPs reviewed annually and must be fully re-evaluated every

three years. Their placement and program must be reviewed whenever

a parent or school employee has reason to believe review and revision

may be necessary. The procedures and practices complained of herein

are implicated in every such review or re-evaluation.

- 38 FIRST CLAIM FOR RELIEF

.

167. By failing to develop and implement polcies and procedures ;

'which insure that plaintiffs and the class are referred to the COH, |

•and evaluated and classified by the COH within thirty days after \

request for referral, the City defendants have violated and continue \

to violate the EAHCA, 20 U.S.C. §1412, and implementing regulations |

at 34 C.F.R. §§300.220, 300.300; §504 of the Rehabilitation Act of I

::1973, 29 U.S.C. §794, and implementing regulations at 34 C.F.R. •:

i! §§104.32, 104.33 and 104.35; 42 U.S.C. §1983; the Fourteenth Amend-

ment to the United States Constitution; §4402 of the New York i

(Education Law and implementing regulations at 8 NYCRR §200.5.

SECOND CLAIM FOR RELIEF

j

168. By placing plaintiffs and the subclass in special edu-

cation programs without performing appropriate evaluations and

without developing IEPs with required parental participation, the

City defendants have violated and continue to violate the EAHCA, 20

U.S.C. §1414, and implementing regulations at 34 C.F.R. §§300.300,

300.4, 300.340-300.346, 300.503, 300.531-300.534, 300.550-300.554;

§504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and imple- ;

menting regulations at 34 C.F.R. §§104.33, 104.34, 104.35, 104.37; \

| 42 U.S.C. §1983; the Fourteenth Amendment to the United States |

Constitution; §4402 of the New York Education Law and implementing

•regulations at 8 NYCRR §§200.3, 200.4 and 200.5.

;

- 39 -

THIRD CLAIM FOR RELIEF

ij

169. By failing to give plaintiffs and the class and their

i parents written notice containing: a full explanation of all of the

| procedural safeguards available to them by law; a description of the

i! action proposed or refused by the COH and the reasons for such action

jj including alternatives considered; a description of each evaluation

procedure, test, record or report used as a basis for the proposal

or refusal; and a description of any other relevant factors, prior

jj to initiating an evaluation or changing or refusing to change a

i child's educational placement the City defendants have violated and

j! continue to violate the EAHCA, 20 U.S.C. §1415, and implementing

j! regulations at 34 C.F.R. §§300.504, 300.505; §504 of the Rehabil-

|| itation Act of 1973, 29 U.S.C. §794, and implementing regulations at
i
t 34 C.F.R. §104.36; 42 U.S.C. §1983; the Fourteenth Amendment to the

United States Constitution; §4402 of the New York Education Law and

; implementing regulations at 8 NYCRR §200.5.

;

FOURTH CLAIM FOR RELIEF

f

;;

170. By obtaining consent from the parents of plaintiffs and

', the class prior to initial evaluation and/or initial placement

!' without fully informing parents of their procedural rights and
i
j[ without informing parents that their consent is revocable, the City

1

- 40 -

I

i

Ij de f endants have violated and continue to violate the EAHCA, 20 O.S.C.

i>§§1401, et seq. , and implementing regulations at 34 C.F.R. §§300.-
i!

j 500 , 300.504; §504 of the Rehabilitation Act of 1973; 29 U.S.C. §794,

jand implementing regulations at 34 C.F.R. §§104.35, 104.36; 42

O.S.C. §1983; §4402 of the New York Education Law and implementing

'[{regulations at 8 NYCRR §200.5.

FIFTH CLAIM FOR RELIEF
171. By removing plaintiffs and the class from their thencurrent educational placements or refusing to place them in school ;i upon application for admission while the COH evaluation, classification and placement process occurs, the City defendants have violated and continue to violate the EAHCA, 20 U.S.C. §1415, and '! implementing regulations at 34 C.F.R. §300.513; §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and implementing regulations at i] 34 C.F.R. §§104.33, 104.36; 42 U.S.C. §1983; the Fourteenth AmendI'
f^
ijment to the United States Constitution; §4404 of the New York
I!
• ' E d u c a t i o n Law and i m p l e m e n t i n g r e g u l a t i o n s a t 8 NYCRR § 2 0 0 . 5 .

- 41 -

!

SIXTH CLAIM FOR RELIEF

172. By failing to act upon recommendations for placement, by failing to provide plaintiffs and the subclass with special edu1 cation and related services without undue delay, and by failing to develop a sufficient number of alternative placements to meet the li educational needs of plaintiffs and the subclass, the City defenidants have violated and continue to violate the EAHCA, 20 U.S.C. §§1412-1415, and implementing regulations at 34 C.F.R. §§300.220, 1300.300, 300.551; §504 of the Rehabilitation Act of 1973, 29 U.S.C.
(I
j §794, and implementing regulations at 34 C.F.R. §§104.33, 104.34, 104.35, 104.37; 42 U.S.C. §1983; the Fourteenth Amendment to the
|United States Constitution; §4402 of the New York Education Law and implementing regulations at 8 NYCRR §§200.4 and 200.5.

SEVENTH CLAIM FOR RELIEF

j:

;:

173. By failing to provide plaintiffs and the subclass with

academic, nonacademic and extracurricular services and activities
i •
in a manner which affords them an equal opportunity for participation

;dn such services and activities, the City defendants have violated

"and continue to violate the EAHCA, 20 U.S.C. §1412, and implementing

(^regulations at 34 C.F.R. §§300.305, 300.306, 300.307, 300.553; §504

jjof the Rehabilitation Act of 1973, 29 U.S.C. §794, and implementing

^regulations at 34 C.F.R. §§104.34, 104.37; 42 U.S.C. §1983; and the

^Fourteenth Amendment to the United States Constitution.

- 42 -
EIGHTH CLAIM FOR RELIEF
174. By failing to develop Individualized Education Programs for plaintiffs and the subclass before special education and related ij services are provided to them and by failing to include their parents !in meetings at which their IEPs are developed, reviewed or revised, ji the City defendants have violated and continue to violate the EAHCA,
i
|20 U.S.C. §1414, and implementing regulations at 34 C.F.R. §§300.J340-300.349, 300.533, 300.534, 300.552, 300.4; §504 of the Rehabil11 i1 itation Act of 1973, 29 U.S.C. §794, and implementing regulations at J34 C.F.R. §104.33; 42 U.S.C. §1983; §4402 of the New York Education
i
SjLaw and implementing regulations at 8 NYCRR §200.4.

ij

NINTH CLAIM FOR RELIEF

175. By failing to inform plaintiffs and the class and their j, jjparents of their right to present complaints, to have an impartial
ji
jdue process hearing and of other procedural rights when the parents disagree with a proposed classification or placement, and by failing to initiate a hearing themselves when they become aware that parents disagree with a proposed placement, the City defendants have violated and continue to violate the EAHCA, 20 U.S.C. §1415, and ^implementing regulations at 34 C.F.R. §§300.504-300.513; §504 of the 'Rehabilitation Act of 1973, 29 U.S.C. §794, and implementing regulations at 34 C.F.R. §104.36; 42 U.S.C. §1983; the Fourteenth ;!Amendment to the United States Constitution; §4404 of the New York Education Law and implementing regulations at 8 NYCRR §200.5.

- 43 -
TENTH CLAIM FOR RELIEF
176. By failing to make placements available to plaintiff 3. G. and other members of the plaintiff subclass who may require placement in private schools or in public or private residential schools, and by misinforming parents of the availability of such placements, the City defendants have violated and continue to violate the EAHCA, 20 U.S.C. §§1412, 1413, and implementing regulations at 34 C.F.R. §§300.300, 300.302, 300.400-300.402, 300.550-300.556; §504 of the Rehabilitation Act of 1973; 29 U.S.C. §794, and implementing regulations at 34 C.F.R. §104.33; 42 U.S.C. §1983; the Fourteenth Amendment to the United States Constitution; §§4401, 4402, 4405, 4407 of the New York Education Law and implementing regulations at 8 NYCRR §§200.8, 200.9 and 200.10.
ELEVENTH CLAIM FOR RELIEF
177. As a result of the above-described deprivations of their federal constitutional and statutory rights by the City defendants, the named plaintiffs have been damaged as follows:
(a) J. G. in the amount of $75,000; (b) M. W. in the amount of $50,000; (c) A. M. in the amount of $35,000; and (d) K. M. in the amount of $2,000.

- 44 -
TWELFTH CLAIM FOR RELIEF \
178. By failing to undertake and implement adequate monitoring i and enforcement activities to correct and/or prevent the violations ; enumerated in the first ten causes of action above, the State j defendants have violated and continue to violate the EAHCA, 20 L). S . C. ! §§1412-1415, and implementing regulations at 34 C.F.R. §§300.2, ! 300.128, 300.130, 200.138, 300.146, 300.190(b)(2 ) , 300.300, 300.305, 300.306, 300.307, 300.341-300.346, 300.501, 3OO.53O(a), 300.534(a), 300.555, 300.556, 300.600, 76.101, 76.104, 76.770-76.772, 76.780; §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and j implementing regulations at 34 C.F.R. §§104.32-104.36; 42 U.S.C. §1983; the Fourteenth Amendment to the United States Constitution; \
i 'and §4403 of the New York Education Law.

- 45 -
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully pray that this Court: 1. Assume jurisdiction over this action; 2. Certify this action as a class action pursuant to Rules 23(a) and (b ) (2) on behalf of the class and subclass described in 11",! 4 and 5 herein;
3. Declare that the defendants' actions and failures or refusals to act have violated and continue to violate plaintiffs' constitutional and statutory rights as alleged herein;
4. Enjoin the defendants from continuing to engage in the practices complained of herein;
5. Order the City defendants to develop and present to the Court within 90 days a detailed plan, suitable for immediate implementation upon approval, to correct the improper practices addressed i herein. The plan should include at least the following elements:
(a) a method of insuring that a request for evaluation of a student believed to be handicapped which is received at any level and in any form is immediately communicated to the building administrator, SES team and COH;
(b) proposed guidelines to be distributed to all District staff delineating staff responsibilities for implementation of the methods set forth in subsection (a) ;
(c) a method of insuring that evaluations and classifications are completed by the COH within 30 days of receipt of request;

- 46 -
(d) a specific delineation of the duties of the SE5 team and the COH and a method of ensuring that each entity performs those functions which are assigned to it;
(e) a method of insuring that when a recommendation for placement is made, placement in the recommended program is accomplished within 30 days;
(f) a method for ensuring that students being evaluated for placement or change in placement will be maintained in their current educational program or enrolled in an appropriate C.S.D. school pending conclusion of the COH process;
(g) a method for insuring development of IEPs, both prior to initial placement and at regular intervals thereafter, which includes parental participation to the fullest extent required by law;
(h) a set of forms to be used to give parents notice prior to collecting evaluative information, prior to a proposal or refusal to initiate or change a child's educational placement, prior to an impartial hearing and prior to development or revision of an IEP;
(i) a method for insuring that all notices to parents will be sent as required by law;
(j) a method of insuring that a parent who complainswith respect to any matter relating to the identification, evaluation or educational placement of his/her child or the provision of a free, appropriate public education to such child shall be notified in writing of all available procedural rights;
(k) a method of insuring that students are placed in private schools or public or private residential schools when necessary;
(1) a training schedule which will insure that District personnel, including classroom teachers, special education teachers, counselors, school psychologists, administrators, SES team members, COH members, are fully informed of their duties and responsibilities with respect to class members;

- 47 -

(m) a procedure for receiving, processing and acting

.

upon complaints concerning failure of District staff

•'.

to follow proposed guidelines and procedures, in-

cluding identification of staff members responsible

for monitoring compliance;

(n) an assessment of the nonacademic, extracurricular and physical education opportunities which are currently made available to handicapped students in each special education setting in the District, \ including students attending school part-time and i those receiving home or hospital instruction, and a ! method of making such opportunities available to handicapped students as fully as they are available to nonhandicapped students;

(o) an assessment of the projected special education placement needs of class members for the next two school years and an estimate of the number and types of special classes, placements and additional staff necessary to effectuate placements within legal time limits ;

(p) an estimate of the cost of each element of the plan;

,.

(q) proposed methods of financing the plan from local, i

(i

state and/or federal funding sources.

!

i

6. Order the State defendants to assist the City defendants i

in the development of the plan described above and to develop and

present to the Court, within 90 days, a detailed plan, suitable for

immediate implementation upon approval, for correcting the moni-

toring, evaluation and enforcement deficiencies complained of here-

in. Such plan should include at least the following elements:
(a) a thorough evaluation of the City defendants' record-keeping and information-transmitting systems to determine where changes must be made in order to insure complete and accurate reporting of information ;

(b) a complete audit of the City defendants' expenditures of state and federal funds for the education

- 48 -

of handicapped children for the past two years with

recommendations for reallocation of funds where ne-

!|

cessary ;

ii

!j

(c) a detailed schedule for transmission of data by the

[i

City defendants, including specification of State

ij

Education Department employees who will be respon-

[j

sible for evaluating such data;

ii

;

(d) a detailed procedure for determining when vio-

j!

lations of legal requirements have occurred, for

i|

requiring immediate compliance, and for imposing

sanctions in the event of continuing noncompliance ;

;i

(e) a method for disseminating copies of "Your Child's

j:

Right to an Education: A Guide for Parents of

jj

Handicapped Children in New York State" to the p a r -

i|

ents of all class members.

i-

7. Allow plaintiffs to submit to the Court and to the defen-

ji

jj dants in writing any objections to the plans required by s u b p a r a -

1 graphs 5 and 6 within 60 days of plaintiffs1 receipt of said plan;

j

8. Convene a hearing, if necessary, on any objections to the

;i plan that plaintiffs may r a i s e ;

|:

9. After such hearing, order immediate implementation of

such plan as amended and approved by the Court;

10. Require the defendants to submit to the plaintiffs every

six months a report on the implementation of the above-described

1 plans and allow the plaintiffs to petition the Court for any relief

which may be appropriate and necessary;

;

11. Retain jurisdction over this matter pending full imple-

I; mentation of all orders issued and plans approved by the C o u r t ;

:;

12. Grant the named plaintiffs damages in the following a-

'! mounts :

- 49 -

a. 3. G. in the amount of $75,000;

b. M. W. in the amount of $50,000;

c. A. M. in the amount of $35,000; and

d. K. M. in the amount of $2,000;

13. Award the plaintiffs their costs and disbursements herein

|| and reasonable attorneys' fees, pursuant to 42 U.S.C. §1988 and 29
li

i| U . S . C . § 7 9 4 a ; and

ij

14. Grant such other, further and different relief as the

jj Court deems just and p r o p e r . I! h D a t e d : March 6, 1981

/• •'

MONROE COUNTY LEGAL ASSISTANCE

20RP0RATI0N

BETSEY B. SWAN

80 West Main Street

jj

Rochester, New York 14614

!;

Tel: 716-325-2520

CiuJdl L(.
GREATER UPSTATE LAW PROJECT ELIZABETH L. SCHNEIDER 80 West Main Street Rochester, New York 14614 Tel: 716-454-6500
Attorneys for Plaintiffs

L:

• ••;• ^ ^

: -:;

.

'-.I/-1. ? "•"

i .•

CITY SCHOOL DISTRICT

13 SOUTH FITZHUCH STREET

,

ROCHESTER, NEVT YORK U61*

. •.'

Home Instruction Divisior. o?. Instruction Stude.it Sducatio:j»il Services Department of'Special Education
October 2k, 1973

M r s . ."••

G-

22U Morton Street

Rochester, NY 1

Dear Parent(s):

Your child, v;ho ir ^naV-i.e to attend r^h'icl. has 'neen recoirmendea for Home Instruction. O.;r teac':ier(s) assiftne.1. by tn? Deprirtnent of Special Education, vill be
call±ng on you -,o arranne a tutori:;.". schedule.

Tne" Board of Education requires that an adult be in the no:je during the teaching: period. It is also necessary that a pleasant, quiet, and veil lighted place be provided for insT,r:.:ctio.n.

Your cooperation vill be appreciated so yo'.:r chili may best gain from this ser-

vice.

'

Sincerely,

"

•

•v ; i "••-••/' 7 • -A'--y •?-

Robert F. Lays, '

Project Supervise:-

.

DeparL:f.enL of Special Education

UlO Alexander Street

'

Rochester, NY lU6(YJ

' RFL/yo .
• cc^ M. Maxey '

.
. -
•

-

/- 'V

;

•. ;;

. .

.' '•

• • " ••"'.' .'•'•.:;'

;

. • : . ;p

-

V

'\

.

'"•

"

.' .•-•;.•
:\

ExM(6lT A

^Rochester ^General
ospital
October 27, 1980

Bernard Greenberg Chairman of the Convni ttee for the Handicapped Rochester City School District 131 West Broad Street Rochester, NY U 6 O 8

RE: W

, h;

Deer Kr. Greenberg:

I am'writing in regard to M W

, a 15 year old ninth grader at

Franklin High School w h o is under my care at the Rochester General

Hospital Pediatr.ic Clinic. M, is known to have a number of handi-

capping conditions which were acquired congenitally. This includes

congen i tal cataracts from which she is blind in her left eye and has

limited vision in her right and non-progressive hydrocepha1 us , for

which she required a ventricular shunt as an infant.

As a consequence, K. has had a long term learning impairment. She had been in special sight-saving classes as an elementary school student here in Rochester but apparently moved from the area for a period o f U-S years and was placed in a special education class upon her return two years ago. That class proved totally unsatisfactory and when I first became involved in h e r care this past July, she had been out of school for over a year.

M has been back to Franklin since the beginning of the school year.

She is not involved in any specialized teaching at this time. From

reviewing h e r medical record and in discussion with H' , 1 feel that

H.-. would benefit from a more specialized, individualized teaching

program.

.

Under PL. 9^-1^2, I request that M. W

be evaluated for her

handicapping condition and appropriate placement be made. Your prompt

attention to this matter would be appreciated.

James D. Lec.-'H.D.
Pediatric Ambulatory Care Center
CC: Mrs. Josephine Genovese Mr. Kenneth Kelbaugh

EL _ X H ( 6 | T

/'•
( i n scJiooi. DISTHKT
1.M W l S I H K i l . M ) S I K t . i : ! KIK IIKSIKR. M W U ) H K UhllX
April 16", I960

Mrs.

C

224 Morton St. .

Rochester, MY 14609

RE: 3

DOB: 11/5/62

Dear Mrs. G

This letter is in regard to your son 3

C,

home instruction program.

and his

We have been informed by Mr. Albanese, 3= 's tutor, that your son now resides at the Rochester Psychiatric Center. Since the Rochester Psychiatric Center provides an educational program we will terminate his home instruction program as of April 15. 19S0.

Should 3" " be returned to home and the tutoring program to be continued, please call me at 325-4560, extension 2477.

Sincerely,

'

3FS:kmm CC: Mrs.Kehoe

3oseph F. Salemi Assistant Director Special Education Department

E 6 XHI6IT

c
d i v sc imut. DisruK i
I.'I H I S I K H O - U ) S I K I M I U H I I I . S U U . M W \ O K K 1-lbOX

November 3 , 1980

}). l.CC, M.I).
I'cdiatric Ambulatory Care Center Rochester General Hospital 1425 Portland Avenue Rochester, New York 14621

Denr Dr. Lcc,

This Jet tor is in response to your request for evaluation of M

W'

., 15 voar old student presently assigned to the program for slow

learners nt Ken Franklin Jr.-St. High School.

M W

was reviewed and evaluated by Dr. Harold Schwartz,

school psychologist, on April 3, 1980. Included with his evaluation is

the medical, social and educational report. The final recommendation by

the Student Educational Services Team indicated that M W." :

does

not possess a handirappinj; condition which would qualify her for special education

placement under the present Commissioner's Regulations.

However, she d«>es nu.i 11 fy ;is a slow learner and was so placed in a class for students who are non-handicapped but slow learners at Ben Franklin, September 19H0.

Sinr.o M W ' has had a complete recent evaluation (4/80) it is the district's belief that we have complied fully with P.L. 94-142. However, as a concerned person, you may inform parents of their rights to an outside (non City School District) evaluation and subsequently request a review by the Committee on the Handicapped.

Sincerely,

BG:kmm
CC: Mr. Sah-tni Dr. Schwartz

Bernard Clrecnbcrger Director, Special Education Department Chairperson, Committee on the Handicapped
D

,<<aent of School Psychological'

'•'end Social Vor> Services

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DIVISION OF IN'STRUGIOW 'STUDt-VT EDUCATIONAL SERVICES

REQUEST FOR'S.E.S. REVIEW

CITY SCHOOL DISTRICT ROCHESTER. NEW YORK

02034

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KAVt A KAv'vDICA.^ri.vG >Tv' AND DIAGNOSIS

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TO • >»'KIT^.: C U M U L A T I V E R I C O I » C
; A r ^ o M i A T C S.C.S. ^CKSOW Piw«:: S.C.I. *-T C O .

>. TEAM REVIEV^D I K t A5OVE STUDENT .AS REQUES1 10. RESULTS AND PROPOSED ACTIONS

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JSSE-D WITH YOU BY:

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13 South Fjiihvch Street

Rochester, Kew. York !<£i<"

;s.ic.n of Instruction •ent Educational Services • :rt~.ent cf Special Education

(i\'c~.e of student)

'7

I rv=t with my c h i l d ' s school s t a f f on r^^ the following was discussed. Please ctiftk:

uate Is))

V.y c h i l d ' s educctionci needs and the r.tec for Specie! Eo'-jc'cticn placerr.ent and services.

h/Y c h i l d ' s c l a s s i f i c a t i o n and the reason why t h i s is needed.

The t e s t s .and/cr reports upon which t h i s was based.

The a v a i l a b i l i t y of my c h i l d ' s school f i l e s , records and r e p o r t s .

The r i c h t t o obtain an independent educational evaluation and a l i s t where .

t h i s rr.ay be obtained. The' right to obtain £ hearing. Procedures for appeal, if desired.

I accept the schQqps reco^T.enGation for-Special Education pla-cement of ;ny child I do/do not wish a.n inror^ai hearino to consider this reconTTiendation.

(Parent's s~.encture)
:c: Parent Cumulative Record , -^>

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CITY SCHOOL DISTRICT
1.11 WLST BROAD STHKKT ROCHKSTKR/NKW YORK
October 1, 19S0

Krs» '

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1552 St. Paul Street

Rochester, New York 14621

Dear Mrs. M

:

Re: A.

M :

•D/B: 9/12/66

It was the recommendation of the Committee on the Handicapped

vhich.net on September 29, 1980, and which meeting you attended, that

A

be placed at Douglass Jr. High School in the Learning Disabilities

Program along with 7th Grade placement. This arrangement you approved.

This arrangement was made since your address is within the Douglass Jr. High optional district.

truly yours

BG/IDC
:c:

BERNARD GREENBERGER Director, Special Education Department
• -and-
Charrman, Conniittee on the Handicapped
Mr. Tka-.h, Principal, Douglass Jr, High School Mr, Raul Fernandez, Program Administrator, Interim Jr. High School Mr. Joseph Salemi, Asst. Director, Special Education Dept. Ms. Betsy Swan, Monroe County Legal Assistance Office

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Current Instructional Skill Level

Short Term Goals: Instructional/Specific Skills

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 J.G. v. Rochester Bd. of Ed.

CW-NY-002 002 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK
J.G., by his mother and next friend, Mrs. G.; M.W., by her mother and next friend, Mrs. W.; A.M., by his mother and next friend, Mrs. M.; and K.M., by her mother and next friend, Mrs. M; on behalf of themselves and all persons similarly situated,
Plaintiffs,
v.

PARTIAL CONSENT JUDGMENT

THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT; JOHN DELVECCHIO, ARCHIE CURRY, FRANK WILLIS, IRENE FRUSCI, JOSEPHINE GENOVESE, KAREN GRELLA, and GARY SMITH, individually and in their official capacities as members of the Board of Education of the Rochester City School District; LAVAL M. WILSON, in his official capacity as Superintendent of the Rochester City Schools; BERNARD S. GREENBERGER, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; ROBERT LAYS, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; JOSEPH SALEMI, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; THE NEW YORK STATE DEPARTMENT OF EDUCATION; and GORDON M. AMBACH, in his official capacity as Commissioner of the New York State Education Department,
Defendants.

Civil Action No. 81-173T

Plaintiffs having filed their complaint herein on March 6, 1981, and the Rochester defendants having acknowledged receipt of the summons and complaint herein and the Court having held that

?7

this Court has jurisdiction over the subject matter of this action and the plaintiffs and Rochester defendants having agreed upon a basis for settlement of this action including the entry of this Partial Consent Judgment by execution of a Stipulation to Entry of Judgment, the original of which has been filed with this Court, and the Court pursuant to F.R.Civ.P. 23(e) having considered the fairness and reasonableness of the proposed settlement,
NOW on motion of counsel for the plaintiffs it is ORDERED, ADJUDGED and DECREED that this action is certified as a class action pursuant to F.R.Civ.P. 23(a) and (b) (2) on behalf of a class composed of all current and future students in the Rochester City School District who have been or will be classified as having handicapping conditions or placed in special education programs or who have been or will be referred in writing to the Committee on the Handicapped, and it is further ORDERED, ADJUDGED and DECREED that the Rochester defendants shall conform their policies and practices to the requirements of the Stipulation to Entry of Judgment which has been executed in this action, and it is further ORDERED, ADJUDGED and DECREED that pursuant to F.R.Civ.P. 54(b), the Court having found that there is no just reason for delay in entry of judgment on the other claims, the Eleventh and Twelfth Claims for Relief in the Complaint herein are severed and reserved for future determination, and it is further

ORDERED, ADJUDGED and DECREED that this Court shall retain jurisdiction of this action for the purpose of the resolution of the issue of attorneys fees and resolution of any post settlement disputes in accordance with the Stipulation to Entry of Judgment, and it is further
ORDERED, ADJUDGED and DECREED that the Court finds this Partial Consent Judgment to be reasonable and fair to the members of the class, and thus it is approved.

DATED: August //, 1983 Rochester, New York

UNITED STATlj/S^DISTRICT JUDGE

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK
J.G., by his mother and next friend, Mrs. G.; M.W., by her mother and next friend, Mrs. W.; A.M., by his mother and next friend, Mrs. M.; and K.M., by her mother and next friend, Mrs. M; on behalf of themselves and all persons similarly situated,
Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT; JOHN DELVECCHIO, ARCHIE CURRY, FRANK WILLIS, IRENE FRUSCI, JOSEPHINE GENOVESE, KAREN GRELLA, and GARY SMITH, individually and in their official capacities as members of the Board of Education of the Rochester City School District; LAVAL M. WILSON, in his official capacity as Superintendent of the Rochester City Schools; BERNARD S. GREENBERGER, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; ROBERT LAYS, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; JOSEPH SALEMI, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; THE NEW YORK STATE DEPARTMENT OF EDUCATION; and GORDON M. AMBACH, in cis official capacity as Commissioner of the New York State Education Department,
Defendants.

STIPULATION TO ENTRY Q_E JUDGMENT
Civil Action No. 81-173T

IT IS HEREBY STIPULATED by and between the plaintiffs and the Rochester defendants as follows:

SECTION A GENERAL PROVISIONS 1. The parties agree to entry of a Partial Consent Judgment incorporating the provisions of this Stipulation. The Rochester defendants have approved the proposed Partial Consent Judgment as to form and content before submission to the Court. 2. The parties agree that the prerequisites for class certification as set forth in F.R.Civ.P. 23(a) and (b)(2) are satisfied with regard to a plaintiff class defined as: all current and future students in the Rochester City School District who have been or will be classified as having handicapping conditions or placed in special education programs or who have been or will be referred in writing to the Committee on the Handicapped. 3. When used in this Stipulation and Partial Consent Judgment, the term "local defendants" shall mean The Board of Education of the Rochester City School District, all of its officers and employees, all such persons1 successors in office, agents and servants and those other persons in active participation with them who receive or have received actual notice of this judgment by personal service or otherwise. The term "parties" shall mean the local defendants (as defined in this paragraph) and the plaintiff class (as defined in paragraph 2 above). The terms of this Stipulation shall be binding on all parties. 4. Where specific documents, notices, or procedures are

mentioned or described in this Stipulation or attached hereto, local defendants shall utilize or follow the specific document, notice, or procedure for at least three years after entry of judgment herein, unless modified pursuant to the procedure described in paragraph 8 herein. Subsequent to three years after entry of judgment herein local defendants may substitute equally effective documents, notices, and procedures for those specifically described herein. When used herein, the phrases "now and in the future" and "annually" shall indicate a requirement which is binding without regard to the aforementioned three-year limitation.
5. Whenever in this Stipulation a stated administrative or clerical duty is to be performed by a designated employee of the local defendants, the local defendants may designate any other employee to perform such duty.
6. At any time subsequent to entry of judgment herein the local defendants may make a motion pursuant to Rule 60 (b) (5) of the Federal Rules of Civil Procedure to be relieved of any obligation under this Stipulation based upon a change in the applicable laws or regulations.
7. The parties intend that all documents and notices which are provided to parents of members of the plaintiff class shall encourage the parents1 participation in the process of determining the handicapping condition of their child and developing their child's special education program, shall inform

the parents of their rights, and shall be written in plain and understandable English or Spanish. Any future changes in documents, notices or procedures shall be evaluated for their likelihood to meet the goals set forth in this paragraph.
8. This agreement contains as an Appendix numerous documents, notices and procedures which have been reviewed by the attorneys and approved by the p a r t i e s . Plaintiffs understand that from time to time the local defendants may wish to modify these documents, notices and procedures. For three years following the entry of judgment in this action local defendants shall have the right to change or i n s t i t u t e the use of new documents, n o t i c e s , or procedures which are s p e c i f i c a l l y described in t h i s Stipulation only in accordance with the following procedures:
a) Any change in any document, notice, or procedure which is annexed or will be annexed to this Stipulation to Entry of Judgment, or is specifically described herein, shall be accomplished by providing a w r i t t e n copy of the proposed replacement document or change to p l a i n t i f f s 1 counsel no less than t h i r t y days before the proposed change i s to become effective. The local defendants shall specify the reason for the proposed change. The p l a i n t i f f s 1 counsel shall comment in writing to the school official designated by the local defendants within fifteen days of receipt of the proposed change. If p l a i n t i f f s ' counsel f a i l to respond within fifteen days, the local defendants may presume approval of the proposed change. If

the local defendants do not accept all revisions proposed by plaintiffs' counsel, they shall notify plaintiffs' counsel and offer an opportunity to discuss the issue within five days of plaintiffs' response. These time frames may be extended or reduced by consent of the plaintiffs' counsel and local defendants, which shall not be unreasonably withheld. If, after discussion, the plaintiffs' counsel and local defendants are unable to agree upon a change, either party may, within ten days of failure to reach agreement, refer the dispute to the Court for resolution.
b) The local defendants may make any application which they deem desirable to the Court prior to implementing any document, notice, or policy, should they wish to ensure advance approval of the document, notice, or policy.
9. Because of the ethical considerations involved, the attorneys for the parties are unable to discuss the issue of attorneys fees and other costs as part of the settlement agreement. The attorneys for the parties acknowledge that these issues remain to be decided. The attorneys will attempt to resolve the issue of attorneys fees and costs after this agreement is executed. If they are unable to resolve the issue within 30 days after entry of a final order resolving this action with regard to all parties (including the State defendants), all claims and defenses involving attorneys fees are reserved for future determination by the Court on motion of any of the

parties. 10. To the extent that the terms of Section M of this
Stipulation require the local defendants to develop documents, plans, proposals and procedures, the procedures described in this paragraph will be followed. The defendants shall deliver a copy of the plan, proposal or procedures to plaintiffs' counsel on the date specified. Within two weeks of receipt, plaintiffs' counsel shall deliver to the defendants' counsel any proposed modifications. Counsel for plaintiffs and defendants shall schedule a meeting to occur within one week of defendants' receipt of plaintiffs' proposed modifications to discuss finalization of the plan, proposal or procedures. Appropriate employees of the defendants familiar with the issues involved in the plan, proposal or procedures shall attend such meeting; reasonably obtainable relevant documents or information, requested by plaintiffs' counsel in writing at the time of submission of any proposed modifications, shall be made available at such meeting. If final approval is not obtained at such meeting, an additional meeting shall be scheduled forthwith, at which plaintiffs' counsel and defendants' counsel will reduce to writing the specific areas of remaining disagreement regarding all documents, plans, proposals or procedures which remain unapproved. The parties shall submit their positions and legal arguments for resolution by the Court within six weeks of delivery of said documents, plans, proposals and procedures to plaintiffs' counsel.

11. To the extent that the terms of this Stipulation may require the local defendants to develop corrective plans, the procedures described in paragraph 10 shall apply except that if final agreement is not obtained at the meeting between the local defendants and plaintiffs1 counsel the matter of the adequacy of the corrective plan shall be submitted for determination by the Court within twenty days or the corrective plan developed by the local defendants shall be deemed approved by the plaintiffs.
12. Local defendants shall, for three years following entry of judgment herein, forward copies of all administrative bulletins and policy directives which relate in any way to procedures or services involving all or any identifiable group of handicapped students or potentially handicapped students to plaintiffs1 counsel at the approximate time such bulletins and directives are issued.
13. Documents, plans, proposals and procedures which are agreed upon between the parties, or approved by action of the Court, shall be deemed to be part of this Stipulation and may only be changed during the first three years following entry of judgment herein in accordance with the procedures set forth in paragraph 8 of this Stipulation.
10

SECTION B REQUESTS fOR EVALUATION AND REFERRALS
14. The parties recognize that the process whereby potentially handicapped students are referred to the Committee on the Handicapped (COH) for evaluation, recommendation and placement should be uniform throughout the District, well known to staff and parents, easily monitored for compliance with established time frames, and should be designed so as to inform parents about the nature of the COH referral process and to obtain informed parental consent to evaluation as expeditiously as possible. It is the purpose of this Section to establish procedures designed to achieve these goals.
15. The following documents, notices and procedures have been developed and will be used by the local defendants in the referral and evaluation process:
a) The local defendants shall accept written requests for evaluation for a suspected handicapping condition and referrals to the COH on the referral form (Exhibit A) from District employees, and in any other written form from parents or other non-employee sources. The date of referral shall be the date the written referral or request for evaluation is received by the child's school or the COH, whichever occurs first. Should an employee of the District submit an incomplete referral form, it shall be treated as complete for purposes of establishing date of referral, but the local defendants may require their employees
11

to provide further information on the referral form. b) When a referral is received by the child's school,
the referral shall be forwarded to the COH within five school days. When a referral is received by the COH, the five day notice (Exhibit B) shall be sent to the child's school within five school days. Each school in the District shall maintain a School Tracking Log (Exhibit C) with regard to all students referred to the COH as new referrals or as referrals for a change in classification, program and/or placement. Exhibit B shall be modified by the local defendants by September 1, 1984, to permit its use as an individual tracking document.
c) The letter requesting consent to test (Exhibits D1 and D-2) shall be sent by the school principal (if referral was received by him/her) or by the COH Chairperson (if referral was received by COH) on or before the fifth school day after the referral was received, together with information regarding testing (Exhibits E-l and E-2), and the consent to test form (Exhibits F-l and F-2). All letters to parents shall be dated to reflect the date of mailing.
d) If parental consent to test is not received by the building administrator within five school days after the consent to test letter (Exhibits D) was sent, the second letter requesting consent (Exhibits G-l and G-2) shall be sent to parents. If parental consent is refused at the conference referred to in Exhibits G or if the parents do not attend the conference, a request for an impartial hearing (Exhibits H-l and
12

H-2) shall be sent to the COH by the building administrator. An impartial hearing shall be scheduled and the parents shall be informed of the time and place of this hearing by letter dated at least five school days before the hearing.
e) Because Exhibits D constitute parental notification that a referral has been received, if parental consent to test is obtained by personnel at the child's school, such personnel shall provide the parents with copies of Exhibits D and E at the time consent is obtained on Exhibit F.
f) Subsequent to three years after entry of judgment herein, the local defendants shall continue to comply with the requirements of this paragraph except that similar documents may be substituted for the specific documents mentioned.
16. The local defendants shall implement the following monitoring and enforcement procedures with regard to timely transmission of referrals:
a) Referrals from schools shall be received at Central Office by the COH Tracking Clerk and date stamped with the date received in Central Office.
b) COH Tracking Clerk shall record the Referral Date, the Date Received by Principal and the Date Received by COH.
c) If there is more than a five school day discrepancy between the Referral Date and the Date Received by Principal, or more than a five school day discrepancy between the Date Received by Principal and the Date Received by COH, the COH Tracking Clerk
13

shall send the school principal a notice of discrepancy (Exhibit I). Any written response from the principal shall shall be maintained for the duration of the school year in a separate file in the Central Office together with the notices of discrepancy.
d) Where notices of discrepancy have been sent to a school more than five times in one semester, the local defendants shall prepare a corrective plan showing the steps already taken and to be taken to remedy the problem. This corrective plan shall be delivered to plaintiffs1 counsel and the State defendants within one month of the fifth notice of discrepancy.
e) Subsequent to three years after entry of judgment herein, the local defendants shall continue to record and monitor the dates of referrals and transmission of referrals and to take timely corrective action when discrepancies are discovered.
17. The local defendants shall implement the following monitoring and enforcement procedures with regard to compliance with the requirements for obtaining parental consent to test:
a) A copy of Exhibits D, and of Exhibits F, G, and H, if any, shall be filed in the student's cumulative folder.
b) If the annual student record review described in Section L of this Stipulation shows failure to comply with the requirements of paragraphs 15 and/or 17(a) of this Stipulation in more than 20% of the folders reviewed in any school during the 1983-84 school year and 10% each year thereafter, the local defendants shall prepare a corrective plan showing steps already taken and to be taken to remedy the problem. This corrective
14

plan shall be delivered to plaintiffs' counsel and the State defendants within one month of completion of the annual student record review.
c) Subsequent to three years after entry of judgment herein, the local defendants shall continue to require compliance with paragraph 17(a) above and to take timely corrective action when the annual student record reviews show noncompliance with the requirements of paragraphs 15 and/or 17(a) of this Stipulation.
18. The local defendants shall now and in the future inform parents of all District students as to the procedure for initiating a special education referral and as to other special education procedures by the following means:
a) The local defendants shall distribute to the parents or guardians of every student enrolled in the District, in August or September of every school year, a copy of the District's School Calendar/Directory, containing information regarding the education of handicapped children (Exhibit J ) . Exhibit J shall be reprinted in succeeding years' calendars, unless a change is mutually agreed to as provided in paragraph 8 of this Stipulation. Each year's School Calendar/Directory shall also be distributed to parents and guardians of students who enroll in District schools after the beginning of the school year at the time of such students' enrollment.
b) The local defendants shall distribute to the parents or guardians of every student enrolled in the District,
15

in the fall of 1983 and of every school year thereafter, a copy of the City School Line (Exhibit K ) , containing an article on procedures relating to the education of handicapped children. This article, similar or identical to Exhibit J, shall be reprinted in subsequent years1 editions unless a change is mutually agreed to as provided in paragraph 8 of this Stipulation.
c) The local defendants shall distribute both the Calendar and City School Line as described in subparagraphs (a) and (b) above as long as both are printed or published. If one of said publications ceases to be published, the local defendants shall continue to distribute the other. If both of said publications cease to be published, the local defendants shall distribute substantially similar information to that contained in Exhibit J to parents of all students enrolled in the District, at or near the beginning of each school year, in some other form.
d) The local defendants shall distribute to each school in the District at least twenty-five copies of the most recent edition of the State Education Department's publication Your Child's Right to aji Education at the beginning of the school year. Said publication shall also be kept in the meeting rooms of the local defendants' COHs and a copy shall be offered to every parent or guardian who attends a COH meeting. The local defendants shall make it the responsibility of the parent member of the COH to offer parents and guardians a copy of the publication at COH meetings.
16

SECTION C EVALUATIONS, COH RECOMMENDATIONS, AMD. DUE PROCESS HEARINGS
19. The parties intend that the procedures described in this Section will result in the timely completion of evaluations for all students who have been referred to the COH and will allow the COH to issue timely recommendations for classification, program and placement of such students based on information obtained from evaluations performed, from persons knowledgeable about the child, and from the child's parents. The parties further intend that the provisions of this Section will facilitate parental participation in the COH decision-making process and will provide parents with full notice of proposed COH action and of such parents' and their children's procedural rights in the COH process.
20. The following procedures and forms have been developed and shall be used by the local defendants in the evaluation and COH recommendation process:
a) The local defendants shall now and in the future automatically schedule the COH meeting to consider a recommendation for a child who has been referred to the COH no later than the week of the 30th school day after the date the referral was received by the building administrator or the COH, whichever occurred first. Working days shall be used to compute this time rather than school days during the summer recess.
b) The local defendants shall notify school principals of the receipt of the referral, of the date that the evaluation
17

packet is due in the Central office, and of the week of the Committee on the Handicapped meeting by use of Exhibit B.
c) The local defendants shall require that by the 5th school day prior to the COH meeting, the staff of the student's school shall complete and transmit to Central Office the complete evaluation packet containing at least the following documents to be reviewed by the COH: i) Social History (Exhibit L); ii) Health Developmental Assessment (Exhibit M ) ; iii) Classroom Observation Form (Exhibit N) (discretionary for summer COH meetings); iv) Speech/Language Report (Exhibit 0 ) ; v) Psychological Evaluation (Exhibit P); vi) Audiological Report (Exhibit Q) (where indicated); vii) Physical Therapy/Occupational Therapy report (Exhibit R) (where indicated); viii) Social Worker's Report (Exhibit S)(where indicated); and ix) the Recommendation for COH Review/Action (Exhibit T). The local defendants may elect to conduct a parent conference at the local school, but in no event shall the transmittal of the evaluation packet be delayed to await completion of a parent conference. The local defendants shall instruct all PPS staff and building administrators that the evaluation packet must be transmitted to Central Office on or before the due date regardless of whether a parent conference has been held.
d) It shall be the responsibility of the building administrator of each school to ensure that the evaluations and forms listed above are completed and received in the Central
18

Office no later than 5 school days before the COH meeting. Any inability to do so which the building administrator deems to be
justifiable must be documented in writing and maintained in the
student's cumulative folder and in a separate file in the Central Office. It shall also be the responsibility of the building administrator to ensure that the School Tracking Log (Exhibit C) is completed for every student in his/her school who is referred to the COH and that such log is maintained in the school office.
e) A member of the school-based evaluation team (currently known as the PPS team) or other school-based person knowledgeable about the child shall attend the COH meeting regarding the child and be prepared to discuss the evaluations performed by the team and the needs of the child. If the evaluation packet is incomplete for unjustified reasons, the COH meeting shall be rescheduled within 15 school days during the 1983-84 school year and 10 school days every year thereafter. Except for COH meetings which take place during the summer recess, if the PPS team member or other school-based person knowledgeable about the child fails to appear at a COH meeting for a child who may be recommended for initial placement in special education or at a meeting where the child's parent expresses disagreement with the PPS team's findings or the COH's proposed recommendations, the COH meeting shall be rescheduled within 15 school days during the 1983-84 school year and 10 school days every year thereafter. In other cases the COH shall determine whether the presence of the school-based person is
19

necessary for informed and appropriate COH action and may either reschedule the COH meeting as described in this paragraph or issue its recommendation and develop the Phase I IEP in that person's absence.
f) If the child's parent is in attendance at a COH meeting which must be rescheduled, the parent shall be told of the reason for the delay and that the meeting will be rescheduled. Parents shall be notified of the rescheduled COH meeting date by use of the letter described below in paragraph 25 of this Stipulation (Exhibits U ) ; however, Exhibit V (notice of rights) need not be sent when Exhibit U is used to notify parents of a rescheduled COH meeting. The local defendants shall take all necessary actions to ensure that the problem necessitating rescheduling of the COH meeting is corrected before the rescheduled COH meeting.
g) In order to ensure and facilitate participation of the school-based person in COH meetings, the local defendants shall make available substitute personnel, if needed, to relieve the school-based person or another employee at the student's school of his/her instructional or administrative duties during the time needed to attend the COH meeting and shall schedule the COH meetings for all of a given school's referrals submitted during any week, on one day no later than thirty school days from the last day of the week of referral.
h) Where the COH has had to reschedule its meeting regarding a child either because: i) a complete evaluation packet
20

was not received by the COH in time for its meeting; or ii) the person knowledgeable about the child from the child's school did not appear at the COH meeting, and this has occurred more than five times for unjustified reasons in any semester for any given school, the local defendants shall prepare a corrective plan showing the steps already taken and to be taken to remedy the problem. The corrective plan shall be delivered to plaintiffs' counsel and the State defendants within one month of the fifth rescheduling of a COH meeting.
21. Subsequent to three years after the entry of judgment herein, the local defendants shall continue to: notify principals of the date that the evaluation packet is due in Central Office and of the approximate date of the COH meeting; require the completed evaluation packet to be transmitted to Central Office at least 5 days before the COH meeting; require the building administrator to maintain a tracking log similar to Exhibit C; enforce the provisions of paragraph 20 (c), (e), (f) and (g) above, except that similar documents may be substituted for the specific documents referred to therein; and take timely corrective action when a pattern of COH rescheduling appears with regard to any given school.
22. The local defendants shall now and in the future employ a sufficient number of psychologists and other evaluation staff to complete all evaluations of children with suspected handicapping conditions within the time required by this
21

Stipulation. 23. The local defendants shall require that the head of the
building PPS team (the building principal or his/her administrative designee) coordinate the evaluation process. The head of the PPS team shall also be responsible for designating the member of the PPS team or other person knowledgeable about the child's educational needs who will attend the COH meeting.
24. Each member of the PPS team or other person responsible for performing one of the required evaluations on a child shall perform his/her evaluation as soon as possible, without waiting for other team members to complete their evaluations. After the evaluations have been completed, the PPS team shall meet to discuss the evaluation results. Such meeting shall not be considered defective if any member of the PPS team whose verbal input is not required is absent from the meeting. The COH shall not be bound, now or in the future, by any recommendation made by the PPS team.
25. No later than 5 school days before any COH meeting regarding a child, the local defendants shall send a notice of the COH meeting (Exhibits U-l and U-2) to the child's parents. Whenever this letter is sent, it shall be accompanied by the document Rights of Parents of Students With Suspected Handicapping Conditions (Exhibits V-l through V-6). A dated copy of Exhibit U shall be placed in the student's cumulative folder.
26. At the outset of each COH meeting, each member of the COH and each school representative shall be introduced to the
22

parents and explain why he or she is present. The parent member of the COH shall offer to the parents a copy of iojix Child's Right to An Education.
27. At the COH meeting, either the knowledgeable building representative or the member(s) of the COH team with specific subject matter expertise in the suspected handicapping condition of the child shall: a) explain to the parents and the members of the COH the evaluation results and discuss the meaning of the tests and evaluations which have been performed; or b) when no new evaluations have been performed, explain the purpose of the meeting and discuss any reports, test results or other information which has been submitted to the COH.
28. All COH meetings shall be conducted in a manner which attempts to solicit the parents' views on their child's needs. Parents should be encouraged to participate in the discussion and react to the evaluation materials being reviewed and discussed. The COH normally shall agree upon classification, placement and program while the parent is present so that the parent may participate in the development of the Phase I IEP. In extraordinary cases, where in the professional judgment of the COH full discussion of an issue would be contrary to the best interests of the child, such discussion may take place without the parent present.
29. If the COH proposes to classify a child as handicapped, they shall develop the proposed Phase I Individualized Education
23

Program (IEP) (Exhibit W) with input from the parents at the meeting. They shall provide the parents with a blank Phase I IEP Form during the discussion so that the parents can better follow the discussion. All items shown on the Phase I IEP form shall be discussed with the parents and recommendations shall be made with regard to all items. The actual writing or typing of the Phase I IEP may be completed after the COH meeting.
30. Except as provided in Section F of this Stipulation, in no event shall the parents be asked or permitted to sign a consent to a placement of their child in a special education program prior to or during a COH meeting.
31. Plaintiffs1 counsel shall be free to observe COH meetings to monitor compliance with this section of this Stipulation with parental consent and prior notification of the local defendants.
32. Within three school days after completion of the COH meeting, the local defendants shall send to the child's parents: a) the COH recommendation letter (Exhibits X-l and X-2); b) a copy of the Rights of Parents of Students With Handicapping Conditions (Exhibits V ) ; c) a copy of the completed Phase I IEP (Exhibit W ) ; and d) a copy of the COH minutes (Exhibit Y).
33. The local defendants shall develop, and include in the manual described in paragraph 98 of this Stipulation and in the in-service training described in paragraph 94 of this Stipulation, directives for all staff to instruct them in dealing with parental objections to COH recommendations which are
24

received in any form other than a written request for a hearing. Such directives shall instruct staff to advise parents to submit a written request for a hearing and to refer parents to agencies listed in Exhibit V. District staff shall not substitute mediation for assisting parents in requesting a hearing. Mediation should occur after the parent has requested a hearing, with a goal of reaching an agreement which will obviate the need for the due process hearing.
34. When a parent has requested in writing a due process hearing, or when the local defendants have scheduled a due process hearing, the local defendants shall send a notice of hearing (Exhibits Z-l and Z-2) to the parent at least five school days before the hearing.
35. The local defendants shall ensure that in any case in which a parent timely requests a due process hearing to contest a COH recommendation, the hearing will be held and decision rendered within 45 calendar days of receipt of the parent's written request for a hearing.
36. Within 20 school days after mailing the COH recommendation, unless a written request for a due process hearing has been received, or unless the parents have not granted written consent to initial placement of their child in special education, the local defendants shall send to the child's parents a placement notification letter (Exhibits AA-1 and AA-2).
37. If, by the 30th school day after a COH recommendation
25

for an initial placement in special education, the parents have not requested a due process hearing in writing and have also not returned to the District a signed copy of the Phase I IEP, the local defendants shall schedule a due process hearing and send to the parent a notice of hearing (Exhibits Z).
38. Whenever Exhibits Uf W, X, Y, Z or AA are sent to parents, a copy of such document (s) shall be placed in the student's cumulative folder.
39. Subsequent to three years after the entry of judgment herein, the local defendants shall continue to follow the provisions in paragraphs 24-30, and 32-38 of this Stipulation. At or after that time the local defendants may substitute similar documents for the specific documents mentioned in said paragraphs; however, prior to making any change in Exhibits V or replacing it with another document, local defendants shall consult with plaintiffs1 counsel or representatives of their agencies or with representatives of one or more other local advocacy organizations regarding the content and wording of such document.
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SECTION D TIMELY PLACEMENTS 40. The parties agree that the procedures described in this section for timely placement of handicapped students in appropriate educational programs are experimental for the 1983-84 and 1984-85 school years and reflect the following assumptions: a) that timely placement of all handicapped students who will be identified during a given school year can best be accomplished by making accurate projections regarding the number of such students and reserving sufficient classroom space and hiring sufficient personnel to accommodate all such placements at the beginning of each semester; b) that these procedures contemplate beginning each semester of the school year with less than the maximum allowable number of students in most special classes and resource programs; c) that students who can be maintained satisfactorily in their present placements for the duration of a semester are often better served by being placed in a new, more appropriate educational setting at the beginning of the following semester than by being moved (often to a different school) in the middle of a semester; d) that special education classes and programs can be staffed and equipped more efficiently and productively by establishing them at the beginning of each semester rather than by creating them on an "as needed" basis during the course of the school year; and e) that, under this approach, special arrangements must be made to accommodate students who cannot be satisfactorily maintained in their current educational programs
27

for the duration of a semester. 41. Prior to the beginning of May of each school year, the
local defendants shall engage in the Annual Assessment and Planning process described in Section J of this Stipulation. The local defendants shall project how many classrooms and special education teachers and support staff will be needed to serve the number of special education students being served and projected to be served by the end of the current school year as well as the number of special education students projected to be identified during the following school year. The latter projection will be based on, among other things, the number of special education students identified during the current school year (broken down by semester) adjusted to reflect any identifiable trend toward increase or decrease of that number and expected attrition.
42. Based on the above-described projections, the local defendants shall reserve for the following school year the number of classrooms needed to serve the projected number of special education students and shall budget, for the following school year, salaries for all special education staff projected to be needed for the school year. The local defendants shall have employed, at the beginning of the first semester of these school years, a sufficient number of special education teachers to serve the projected first semester population of special education students. The local defendants shall have employed at the beginning of the second semester of these school years, a
28

sufficient number of special education teachers to serve the projected number of special education students who must be placed during the second semester in accordance with the terms of this Stipulation. This figure may be adjusted upward or downward to reflect unexpected changes in the numbers of special education students identified. Plaintiffs' counsel shall be notified of changes in these projections. All handicapped students for whom parental consent to placement has been obtained (when necessary) shall be placed in their recommended program and/or provided with the recommended services no later than thirty school days after COH recommendation unless and until the classes and classroom space projected for the semester are filled to capacity.
43. New special education classes and programs shall be opened only at the beginning of the first and second semesters of these school years, except as provided in this paragraph and in paragraphs 63 and 71 of this Stipulation. If the local defendants find, by use of the reporting system described in paragraph 102(a) of this Stipulation, that any student for whom the COH has recommended a special education placement or program and for whom parental consent to placement has been received, will not be placed in such placement or program by the 61st school day after the COH recommendation, unless a new class is opened, the local defendants shall open a new class or obtain a variance from the State defendants so as to allow placement of such student by the 61st school day after the COH recommendation. If the local defendants find, by use of the reporting system
29

described in paragraph 102(a) of this Stipulation, that any group of students which may be placed in a single special education class pursuant to the regulations of the Commissioner of Education and the terms of this Stipulation has been recommended for special education placement by the COH and parental consent to placement has been received for such group of students, and such group has been identified more than forty-five school days before the end of a semester, the local defendants shall open a class for such students within two weeks of identification of the last member of the group. The procedures described in this paragraph shall not apply after the beginning of the fourth marking period (halfway through the second semester) in any case where the student will be maintained in his/her current educational program for the remainder of the school year and the student's parents and a designee of the local defendants agree that the student's educational needs would be better met by placing him/her at the beginning of the following school year.
44. The provisions of this Section shall not apply to special education students whose recommended placement is a private (agency) placement. Timely placement of such students shall be accomplished in accordance with the provisions of Section E of this Stipulation.
45. The provisions of paragraph 43 above presume that all handicapped children will be maintained in their then-current educational programs and placements until they are placed in a
30

newly recommended program. To the extent that problems arise with regard to maintaining students in their then-current placements, such problems shall be dealt with according to the provisions of Section F of this Stipulation.
46. The parties agree that this Section of this Stipulation is experimental for the 1983-84 and 1984-85 school years. It is the belief of all parties that, based on accurate projections by the local defendants, all handicapped students should be able to be placed in their recommended programs within sixty school days of referral to the COH. It is the belief of all parties that the provisions embodied in paragraph 43 which extend the placement timeframes of state regulation should not, in fact,have to be used, but are included as a fail-safe mechanism only.
47. By May 1, 1984 and May 1, 1985, the local defendants shall prepare a status report on the implementation of this Section. Said report shall include information regarding: (a) successes and failures of the placement procedure described in this Section; (b) the number of students for whom the "fail-safe" provisions of paragraph 43 had to be invoked during the school year; and (c) the number of students who were not placed within 60 school days of the date of referral to the COH during the school year. Copies of this report shall be provided to the plaintiffs' counsel by May 1, 1984 and May 1, 1985 respectively.
48. During May, 1984 and May, 1985, the parties shall meet as often as is necessary to determine what, if any, changes should be made in the procedures described in this Section for
31

the succeeding school years. At those times the issue of timely placement shall be deemed reopened for negotiation and no party shall be bound by the agreement embodied in this Section with regard to finalization of the timely placement provisions in this matter. If the parties are unable to reach agreement as to final terms for timely placement of handicapped students by May 25, 1985, either party may refer the matter to the Court for resolution within ten days.
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SECTION E PRIVATE (AGENCY) PLACEMENTS
49. The parties recognize that handicapped students for whom the COH has recommended private (agency) placement have often waited six to twelve months for placement due to the local agencies' inability to accept or accommodate all such students. The parties further recognize that many of such students have been recommended for agency placement by the COH because District programs did not provide the intensive level of services needed by these children. In view of these facts, it is the purpose of this Section to: (a) provide a higher level of support services to children placed in self-contained classes and resource rooms for emotionally disturbed children, and to children with other types of handicapping conditions who have significant emotional needs, in order to allow more such children to be educated in these settings within the District; (b) expand the District's Group Tutoring program, a goal of which is to reintegrate emotionally disturbed children into the public school setting, to include a small number of elementary-age students and a greater number of secondary students; (c) to increase the capability of the Group Tutoring Program to implement IEPs for handicapped students attending Group Tutoring; (d) to create, if the need arises, a maximum of three District-based classes with a 6/1 student-teacher ratio, with support services or with one instructional aide for each such class, to accommodate children
33

who cannot be maintained in any of the District's other programs and are waiting for agency placement; and (e) to significantly reduce the number of handicapped students who are placed on home instruction.
50. The provisions of this Section, like the provisions of the preceding Section, are experimental and shall be in effect during the 1983-84 and 1984-85 school years unless otherwise stated herein.
51. The local defendants shall, prior to the beginning of each such school year, ensure that a psychologist, social worker, behavior modification specialist and/or other appropriately certified support personnel, who does not carry responsibility for performing evaluations on children other than the children in the programs with which he/she is working directly, is available to every self-contained class for elementary-based emotionally disturbed children. No such personnel shall be assigned to more than a total of six such classes; these classes shall be in the same school or in schools which are in close proximity to one another. The purpose and duties of such personnel shall be to provide a program of ongoing support services as a part of the curriculum of each class to which he/she is assigned and to provide individual and/or group counseling to those students in such classes for whom it is deemed appropriate by professional staff.
52. The local defendants' Director of Special EducationInstruction, prior to the beginning of each such school year,
34

shall assign no less than a total of seven certified special education teachers to selected elementary school buildings containing special education classes with only one administrator or containing a significant number of special education classes to: assist in organizing the special education programs; provide instructional support to the special education programs; and chair subcommittees of the COH. The local defendants shall organize self-contained classes for elementary intermediate and advanced learning disabled students at the class size limits set forth in 8 N.Y.C.R.R. § 200.6(f)(4).
53. The local defendants shall advise the COH that emotionally disturbed students who have shown a need for a higher level of structure and services than has heretofore been available in District-based programs shall now be considered for placement in District-based classes for emotionally disturbed children as described in paragraph 51 above.
54. The local defendants shall, prior to the beginning of the 1983-84 and 1984-85 school years, ensure that a program similar to the District's Group Tutoring Program is available for a minimum of ten elementary-age students. The COH shall be advised that emotionally disturbed students who cannot receive appropriate educational services in the classes described in paragraph 51 above, but who may benefit from placement in a Group Tutoring situation (including particularly children who exhibit symptoms of school phobia), shall now be considered for placement
35

in the Group Tutoring - Elementary Program. 55. In recognition of the fact that many of the secondary-
age emotionally disturbed students in the District who have heretofore been placed on home instruction may be able to benefit from placement in the Group Tutoring Program, the local defendants shall, prior to the beginning of the 1983-84 school year, expand the Group Tutoring Program to have the capacity for the placement of at least thirty additional secondary-age emotionally handicapped students in the program during the 1983-84 school year. The COH shall be advised that emotionally disturbed students who may benefit from placement in a Group Tutoring situation (including particularly children who exhibit symptoms of school phobia, truancy problems, and those who have had problems in other school settings) shall now be considered for placement in the Group Tutoring Program.
56. Handicapped students in the Group Tutoring Program shall have properly developed Phase I and Phase II IEPs and shall receive all special programs and services contained in those IEPs. Instuctors in the Group Tutoring Program need not be certified in special education so long as special education certified personnel, psychologists, social workers and/or other support personnel are made available to consult with and provide services to handicapped students in the Group Tutoring Program.
57. It is the expectation of all parties that the programs described in paragraphs 51-56 above will meet the educational needs of a significant percentage of the emotionally
36

disturbed students who have previously been recommended for agency placement or placed on home instruction. It is the further expectation of all parties that the availability of these programs together with the increased support services which will be available to emotionally disturbed students in secondary-based special education classes and resource rooms, as a result of the increase in support personnel described in paragraphs 22 and 51 of this Stipulation and the resulting increased availability of secondary-based support personnel, will reduce the number of emotionally handicapped students being recommended for agency placement to the point where these placements may be able to be accomplished in a timely manner (i.e., within sixty to ninety school days of referral). However, because of the untried nature of these provisions, the local defendants agree to establish, if the need arises, a maximum of two secondary and one elementary class with a student-teacher ratio of 6/1 with support services or with one instructional aide for each class. These classes shall be designed to serve the intensive needs of those emotionally disturbed children who are or will be waiting for agency placement for more than ninety school days since the date of referral. Because only one elementary 6/1 class is being established during the experimental period, the local defendants may organize such class so that the chronological age range of the students shall not exceed five years.
58. The parties recognize that the provisions of this
37

Section of the Stipulation may be affected by action of the Regents regarding state-wide applicability of the provisions of Section 200.6 of the Commissioner's Regulations, which are currently not binding on the local defendants. Because of this fact, and because the provisions of this Section are experimental in nature, the local defendants shall prepare, by May 1, 1984, a status report on the effects and results of implementation of this Section, together with a statement of proposed actions to be taken by the District for the 1984-85 school year as a result of any action by the Regents regarding Section 200.6. The status report shall include information regarding: (a) a comparison of the number of COH recommendations for agency placement made during the 1983-84 school year with the number made during the 1982-83 school year; and (b) the average waiting time including any trends regarding the average waiting time for District students recommended for agency placement. Copies of this status report shall be provided to plaintiffs' counsel by May 1, 1984. There shall be a similar status report prepared by the local defendants and provided to plaintiffs' counsel by May 1, 1985.
59. During May, 1984, and May, 1985, the parties shall meet as often as is necessary to determine what, if any, changes should be made in the provisions described in this Section for the succeeding school years. At those times the issue of private (agency) placements shall be deemed reopened for negotiation and no party shall be bound by the agreement embodied in this Section with regard to finalization of the private (agency) placement
38

provisions in this matter. If the parties are unable to reach agreement as to final resolution of the issue of private (agency) placements by May 25, 1985, either party may refer the matter for resolution to the Court within ten days.
39

SECTION F MAINTAINING HANDICAPPED STUDENTS IM J H E I E THEN-CURRENT
EDUCATIONAL PLACEMENTS A£[D_ ENROLLING HANDICAPPED STUDENTS I U SCHOOL
60. The p a r t i e s recognize that the needs of handicapped students can best be met if any student's possible need for a change in placement or program is detected early and if any needed change i s accomplished without interruption of the student's educational program. The p a r t i e s further recognize that "home instruction" is a highly restrictive placement for a handicapped student. These procedures are designed to reduce significantly the number of handicapped students who are placed temporarily on home instruction. Through the procedures of this section the parties intend to provide a mechanism for maintaining handicapped students who may require a change of classification, placement and/or program in t h e i r then-current educational placement and program u n t i l an a l t e r n a t i v e , more appropriate placement and/or program can be implemented and a mechanism for enrolling students previously classified as handicapped who are new to the District in an appropriate available placement and/or program while such s t u d e n t s go through the COH p r o c e s s .
61. All handicapped s t u d e n t s for whom a change of classification, placement and/or program is sought and who have not been suspended pursuant to the procedures described in the companion case of MJL£h.a_e_l Tj. y^. poard &£ E£Lu.£a£i.Qjl Q.L the Rochester City School District. Civil Action No. 83-30T, shall be maintained in their then-current educational placement and/or
40

program while the COH acts on the referral for change of classification, program and/or placement and until the student is actually placed in a different, more appropriate educational placement as recommended by the COH and not objected to by the student's parents. If the parents of such a student object to the COH's recommendation, the student shall be maintained in his/her then-current educational placement and/or program until the completion of all administrative and judicial procedures provided for challenging special education placements and programs.
62. The provisions of paragraph 61 above shall not apply where a student's parents have given informed written consent to a temporary placement and program for the student which is mutually acceptable to the District and the parents. Parental consent to a temporary placement and/or program for a student shall be obtained only after support services available in the building have been found to be unsuccessful in maintaining the student and only on the form attached hereto as Exhibits BB-1 and BB-2. The local defendants may only implement a temporary placement for a handicapped student for whom a change in classification, placement and/or program is sought through the following procedure:
a) A written referral for change of classification, program and/or placement is submitted to the COH;
b) Personnel from the student's school (including at least: 1) the student's teacher; 2) the building administrator or
41

his/her designee; and 3) the Special Education Coordinating Administrator or the special education te-cher referred to in paragraph 52 of this Stipulation if such person is not the principal's designee) meet with the student's parents and discuss the difficulty of maintaining the student in his/her then-current educational placement and/or program and the alternatives for temporary placement of the student;
c) If the parent chooses an alternative temporary placement for the student pending a new COH recommendation and placement, the parent shall fill out and sign the Consent to Temporary Placement form attached hereto as Exhibits BB;
d) The Consent to Temporary Placement form is forwarded to the COH;
e) The COH or the COH Chairperson may authorize the temporary placement only if: a referral to the COH for change of placement has already been received regarding the student; the school has informed the COH in writing of the support services which were utilized in an attempt to maintain the student; an Exhibit BB has been completed and signed by the parent(s); where such temporary placement is to be home instruction, the alternative placements available have been considered and found not to be appropriate; and the COH meeting at which a change of classification, placement and/or program for the student will be considered has been scheduled for the earliest expedited COH meeting time available, but no later than the week of the 30th school day after referral;
42

f) If t h e COH or i t s Chairperson approves t h e temporary placement, i t shall send to the student's parents, and to the building a d m i n i s t r a t o r of the s t u d e n t ' s current school, the COH-approved Consent to Temporary Placement form (Exhibits BB) ;
g) The student s h a l l in a l l cases be maintained in h i s / h e r t h e n - c u r r e n t placement and program u n t i l the building a d m i n i s t r a t o r receives the COH-approved Exhibit BB, unless the student presents a serious danger to self or others;
h) In order to provide expedited COH meetings for the students referred to in t h i s Section and other students who may require them, the local defendants shall reserve one-half day per week of COH meeting time;
i) At the COH meeting the parents s h a l l again be advised that their consent to the temporary placement is revocable, and the p a r e n t s ' response, if any, to t h i s advice s h a l l be recorded in the minutes of the COH meeting;
j) If t h e COH does not recommend a change of c l a s s i f i c a t i o n , placement or program, or if the COH recommends only a change in program which can be accomplished within the s t u d e n t ' s current placement, the student s h a l l be returned to h i s / h e r previous placement within five school days of the COH meeting;
k) If the COH recommends a change of classification or placement, or a change in program which cannot be accomplished
43

within the student's current placement, the student shall be placed in the recommended program (if the parents do not object to the recommendation) within thirty school days of the COH meeting.
63. The provisions of paragraph 43 in Section D of this Stipulation (Timely Placements) shall not apply to any handicapped student who has been placed in a temporary placement pursuant to paragraph 62 above. All handicapped students who have been placed in a temporary placement pending COH review and for whom the COH has recommended a new program and/or placement after review shall be placed in the new recommended program (if the parents do not object) no later than the thirtieth school day after the date of the recommendation. All such students who have been recommended for agency placement and for whom such placement cannot be accomplished within thirty school days shall be maintained in their temporary placement or shall be temporarily placed by the COH according to the provisions of paragraph 57 of Section E of this Stipulation pending agency placement.
64. The COH shall issue a recommendation showing home instruction as the recommended placement for a student only when the COH has determined that such placement constitutes the least restrictive environment in which a handicapped student can receive an appropriate education designed to meet his/her individual needs. The minutes of any COH meeting at which such a recommendation is made shall reflect the reasons for the COH's rejection of alternative placements for the child (including
44

agency placement and r e s i d e n t i a l placement). Copies of these minutes and the COH recommendation shall be kept in a separate file in the Office of Student Equity and Placement for review by the p a r t i e s . Subsequent to December 1, 1983, placement on home instruction shall only be recommended in accordance with the C r i t e r i a for Placement on Home Instruction to be developed pursuant to paragraph 102(b) of this Stipulation.
65. Where the COH determines t h a t p r i v a t e (agency) placement i s appropriate for a child, the COH shall issue a recommendation showing the designated agency as the recommended placement, whether or not such agency has already accepted the child. If the COH believes that placement in the recommended agency will likely not be accomplished within 30 school days, the COH shall separately designate as "temporary" any temporary placement to which the parent has agreed. Before accepting parental consent to home instruction as the temporary placement for such a child, the COH shall f i r s t determine whether temporary placement in a class established pursuant to paragraph 57 would be appropriate for the child. Temporary placement of a child awaiting agency placement shall be made into one of these classes rather than on home instruction, unless these classes are full or the COH and parent agree t h a t such a c l a s s would not be appropriate to meet the child's needs.
66. In order to allow handicapped students to be maintained in their then-current placement and program pending COH review of
45

their need for a change of classification, placement or program, the local defendants shall hire, for the 1983-84 school year, a minimum of 21 new instructional aides to be assigned to special education classes. At least this number of instructional aides, in addition to the number of instructional aides currently assigned to special education classes, shall remain employed by the local defendants in subsequent school years, except that the number may be proportionately reduced if the population of handicapped students in the District should decline. These instructional aides, and the additional support personnel to be employed pursuant to paragraphs 22 and 51 of t h i s Stipulation, shall be utilized whenever possible to a s s i s t in maintaining a handicapped student in his/her then-current educational placement pending COH review of a change in placement. Where an instructional aide or additional support from a psychologist, s o c i a l worker or other appropriate personnel can be made available in a building, no handicapped student who attends school in that building may be placed in a temporary placement until an effort has been made to maintain the student in his/her t h e n - c u r r e n t educational placement with the use of an instructional aide or other supportive services.
67. A copy of any Consent to Temporary Placement shall be placed in the student's cumulative folder and PPS folder. Information regarding students placed on home instruction shall be maintained according to the provisions of paragraph 64 of this Stipulation.
46

68. Prior to July lf 1983, the local defendants shall mail to the parents of all handicapped students currently receiving home instruction and expected to remain on home instruction for September, 1983, a letter informing them of the availability of additional placements and soliciting requests for COH review. The local defendants shall similarly notify the tutors of such students and solicit tutors1 requests for COH review of their students. All such students for whom a request for COH review has been received prior to July 10, 1983, shall be reviewed by the COH and considered for a less restrictive placement than home instruction for September, 1983. All such students for whom new placement is recommended and for whom no parental objection to the recommendation has been received within fifteen days after mailing the recommendation, shall be placed in the recommended program and placement by the opening of the 1983-84 school year.
69. The parties agree that the issue of short-term and long-term suspension of handicapped students and the proper procedures to follow in disciplining handicapped students are not addressed in this Stipulation but shall be resolved through negotiation or litigation of the companion case HicJia..e_i T*. v. Board p.f Education C;£ the Rochester £i£.y_ School District, Civil Action No. 83-30T. It is the intention of the parties to negotiate a Stipulation to Entry of Consent Judgment in the Michael TP case which will be presented to the Court for approval simultaneously with the Stipulation in this matter.
47

70. When a new entrant who is or may be handicapped seeks and is entitled to enroll in the District, it shall be the responsibility of the principal or his/her designee (elementary school), or of the Special Education Coordinating Administrator (secondary school), to make an initial recommendation regarding the appropriate temporary placement for such student. This determination shall be made by such individual in consultation with a designated Central Office administrator and with the informed consent of the student's parent. The determination regarding an appropriate temporary placement of a child who is otherwise entitled to enroll shall be made according to the following procedures:
a) If the parent advises that the child was classified as handicapped in a former school district and can present suitable documentation, such as a current IEP, COH recommendation and/or school records, the school official shall consult by telephone with a designated Central Office administrator to establish the appropriate temporary placement for the child, which shall be in an available program and placement in the City School District most similar to the child's program and placement in the former district;
b) If the parent consents to such temporary placement by use of the form attached hereto as Exhibits CC-1 and CC-2, the child shall be placed within three school days if the placement is available in the child's home school and eight school days if not in the home school; the Office of Student Equity and
48

Placement shall notify the parent of the placement. c) If the parent does not consent to the proposed
temporary placement, the child shall be enrolled forthwith in the regular class and grade which he/she would otherwise attend;
d) If the parent advises that the child was classified as handicapped in the former school district, but cannot provide suitable documentation regarding the nature of the child's former placement, the school official shall telephone the child's former school district forthwith, if such former district can be identified, and make all reasonable efforts to determine the child's classification and. placement in the former school district;
e) If suitable information is obtained from the former school district, the child shall be enrolled in the appropriate temporary placement pursuant to subparagraphs b) and c) above through the Office of Student Equity and Placement, which shall notify the building administrator of the child's home school of the action taken;
f) If suitable information cannot be obtained from the former school district, the child shall be enrolled in the regular class and grade which he/she would otherwise attend;
g) If the parent of a child referred to in subparagraphs c) or f) above does not want his/her child to attend the regular class or temporary placement offered, such parent may consent to placement of the child on home instruction
49

pending COH review and placement in an appropriate program by use of Exhibits CC.
h) The building administrator shall submit a referral to the COH regarding a claimed handicapped new enrollee on the date of the child's or parent's initial attempt to enroll the child in school and shall provide the parent with copies of Exhibits D and E and obtain, if possible, parental consent to evaluation of the student (Exhibits F) and parental permission for release of records from the former school; the Central Office administrator consulted by the school official pursuant to subparagraph 80(a) above shall make inquiries to determine that a referral has been or is being submitted;
i) Where a new enrollee is enrolled in a temporary placement other than the home school pursuant to subparagraphs b) or e) above, the building administrator of the child's home school shall transmit the newly opened cumulative file, a copy of the referral, and a copy of the Consent to Test form signed by the parent to the school in which the child is temporarily placed; evaluations of the child, if needed, shall be performed by personnel at the school of temporary placement.
71. The provisions of paragraph 43 in Section D of this Stipulation (Timely Placements) shall not apply to any handicapped student who has been placed in a temporary placement pursuant to this section. All such students shall be placed (if the parents do not object) in the program and placement recommended by the COH no later than the thirtieth school day
50

after the date of the recommendation. All such students who have been recommended for agency placement and for whom such placement cannot be accomplished within t h i r t y school days shall be maintained in their temporary placement; if the temporary placement is home instruction, the provisions of paragraph 65 of this Stipulation shall apply.
72. In a l l cases of new enrollees the temporary placement shall be deemed the child's then-current educational placement if the parent objects to the COH recommendation.
73. The local defendants shall develop, and include in the manual described in paragraph 98 of t h i s Stipulation and in the i n - s e r v i c e t r a i n i n g described in paragraph 94 of t h i s Stipulation, d i r e c t i v e s for a l l staff to instruct them in the content and implementation of the procedures described in t h i s Section. The local defendants shall rescind the Memorandum dated December 15, 1983 (Exhibit DD) and shall issue separately the directives described in t h i s paragraph to a l l relevant staff, including at l e a s t a l l building administrators and Special Education Coordinating Administrators.
74. The p a r t i e s agree that because the provisions of t h i s Section are dependent for their effectiveness upon several of the other provisions of this Stipulation which are experimental for the 1983-84 and 1984-85 school years, this Section also shall be deemed experimental for these school years.
75. By May 1, 1984, the local defendants shall prepare a
51

report on the effects and results of implementation of this Section. Said report shall include information regarding: a) the number and type of temporary placements approved by the COH or its Chairperson through April 1, 1984, pursuant to paragraph 62 of this Stipulation; b) the effectiveness of the procedures described in this Section in maintaining students in their thencurrent educational placements; c) the COH's implementation of the Criteria for Placement on Home Instruction pursuant to paragraph 102(b) of this Stipulation; and d) any other relevant information relating to successes and failures of the procedures described in this Section. Copies of this report shall be provided to plaintiffs1 counsel by May 1, 1984. There shall be a similar report prepared by the local defendants and provided to plaintiffs1 counsel by May 1, 1985.
76. During May, 1984, and May, 1985, the parties shall meet as often as is necessary to determine what, if any, changes should be made in the procedures described in this Section for the 1984-85 and succeeding school years. At that time the issue of maintaining students in their then-current placements and enrollment of new students shall be 6eemed reopened for negotiation and no party shall be bound by the agreement embodied in this Section with regard to finalization of this issue. If the parties are unable to reach agreement as to final terms for maintaining students in their then-current educational placements and/or enrollment of new students by May 25, 1985, either party may refer the matter for resolution to the Court within ten days.
52

SECTION G PHASE XL XEP_£ AND ANNUAL REVIEWS
77. In order to allow annual reviews to be conducted with full parental participation and to facilitate timely and complete preparation of Individualized Education Programs (IEPs) the parties have adopted the following procedures. The procedures described in paragraphs 78 and 80-83 of this Section shall be followed now and in the future except that subsequent to three years after entry of judgment herein/ the local defendants may substitute similar documents for the specific documents mentioned therein.
78. The local defendants shall require that Phase II IEPs are developed either: a) within 30 school days after a child has been placed in a special education program, begun a new school year or begun to receive a special education service; or b) at the Phase II IEP review as described in paragraph 81 of this Stipulation, whichever occurs first. The local defendants shall use the revised Phase II IEP form (Exhibit EE).
79. The local defendants shall develop procedures for parental involvement in the development of Phase II IEPs as described in paragraph 102(c) of this Stipulation. Compliance with those procedures shall be monitored as described in Section L of this Stipulation. When the annual student record review described in Section L shows that more than 20% in the 1983-84 school year and 10% in the 1984-85 and 1985-86 school
53

years of a school's Phase II IEPs have not been completed in accordance with paragraph 78 above or that parental notification letters (which are to be developed pursuant to paragraph 102(c) of this Stipulation) were not sent in accordance with the procedures for parental involvement in more than the same percentages as above of the folders reviewed, the local defendants shall prepare a corrective plan showing the steps already taken and to be taken to remedy the problem. This corrective plan shall be delivered to plaintiffs1 counsel and the State defendants within one month of the completion of the annual student record review. Subsequent to three years after entry of judgment herein, the local defendants shall continue to take timely corrective action when the annual student record review shows noncompliance with paragraph 78 above and/or the requirements for parental involvement in development of Phase II IEPs.
80. The local defendants shall conduct an annual review of each handicapped student's educational program and placement pursuant to the following procedures:
a) Prior to annual review, personnel at the child's school shall identify those handicapped students who are likely to have only a change recommended in annual goals on their Phase I IEP, and those students who are likely to have more significant changes in Phase I IEP recommended or seriously considered.
b) The parents of students for whom only a change in annual goals is contemplated shall be sent a letter notifying
54

them of an opportunity to meet with their child's teacher and a Chairperson of a subcommittee of the COH appointed to conduct annual reviews (preferably an individual from outside their child's school) who is knowledgeable about the special education programs, placements, and services available in the District. This letter (Exhibits FF-1 and FF-2) also shall offer the parent the opportunity to meet with a subcommittee of the COH and shall be sent together with Exhibit V.
c) The parents of students for whom a change of more than annual goals is contemplated shall be sent a letter notifying them of the opportunity to meet with a subcommittee of the COH (Exhibits GG-1 and GG-2), accompanied by Exhibit V.
d) If the parent attends the parent/teacher/Chairperson meeting and as a result of the meeting any participant believes that a change in any item of the student's Phase I IEP other than the annual goals is desirable or should be considered, the Chairperson shall schedule the parent for a meeting with the subcommittee, if the parent wishes to attend.
e) The Chairperson of the subcommittee of the COH which meets at any given school shall be the person who has met with parents and teachers as described above. During the meeting of the subcommittee of the COH the Chairperson shall present to the subcommittee for review the Phase I IEPs for the students for whom neither parents nor the school requested a meeting with the subcommittee of the COH.
55

f) To avoid inconsistent results and duplicative efforts, the local defendants shall not be required to include in any annual review process a student for whom a COH review has taken place or will take place within thirty-five school days of the annual review at the child's school.
81. The local defendants may choose to combine the annual conference required to review Phase II IEPs with the annual review of Phase I IEPs. In that case Exhibits FF and GG and the l e t t e r s developed pursuant to paragraph 102(c) of t h i s Stipulation may be modified to reflect such new procedure in accordance with the procedures in paragraph 8 of t h i s Stipulation.
82. For students placed in Group Tutoring, individual tutoring, or on home instruction, in addition to the annual review described in paragraph 80 above, there shall be a review conducted prior to the end of the f i r s t semester in accordance with the procedures described in paragraph 80.
83. The local defendants shall develop and implement procedures by which teachers will note the date of completion of Phase II IEPs upon class l i s t s provided for that purpose for timely use during the 1983-84 and subsequent school years.
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SECTION H ACADEMIC. NQNACADEMIC AMJ EXTRACURRICULAR PROGRAMS
M E ACTIVITIES 84. The parties agree that all academic, nonacademic and extracurricular activities, including special programs and schools, must be open to all otherwise qualified handicapped students. The local defendants agree to review the accessibility of all academic and nonacademic programs and identify barriers, if any, to participation for such students. 85. By June 1, 1984, the local defendants shall compile statistics regarding the participation of handicapped students in academic and non-academic activities which will show: a) the number of such students enrolled in each of the District's special programs, including but not limited to, magnet school programs, Edison Tech, School of the Arts, School Without Walls, World of Work, World of Inquiry, MAP classes, etc., broken down by special program, number of handicapped students and types of handicapping conditions (including whether in resource room or special class placement); and b) methods of recruitment for each of the District's special programs and the efforts made to reach handicapped students. 86. Based on the information gathered above, the local defendants shall develop a proposal to increase the participation of otherwise qualified handicapped students in the District's special programs and eliminate those barriers which may have been found to exist which prevent participation of otherwise qualified
57

handicapped students in such programs. A copy of such proposal shall be delivered to plaintiffs' counsel by August 15, 1984. Upon approval of such proposal pursuant to the procedures described in paragraph 8 of this Stipulation, the local defendants shall implement such proposal.
87. The local defendants shall, no later than December 31, 1985, assess the effects of the proposal above in: a) removing barriers, if any, to participation by otherwise qualified handicapped students in the District's special programs; and b) increasing participation of otherwise qualified handicapped students in such programs; and shall, during the following month, meet with plaintiffs' counsel to determine what changes, if any, should be made in District procedures to increase participation of otherwise qualified handicapped students in the District's special programs.
58

SECTION I COMPLAINTS AND INQUIRIES 88. The local defendants shall now and in the future identify a single telephone number for individuals making inquiries or complaints concerning the education of handicapped students. The staff member(s) who will answer this number shall connect the caller with a person able to respond to the inquiry or complaint. 89. Now and in the future, all appropriate forms and notices, including but not limited to letters to parents, the Calendar/Directory, and the City Line newspaper, shall state the telephone number for inquiries and complaints. These modifications shall be in effect no later than December 1, 1983.
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SECTION J AMIIAL ASSESSMENT M D PLANNING 90. Annually, prior to budget preparation, the local defendants shall perform an assessment of the projected need for special education placements and services for the following year. This assessment of projected special education placements and services needs shall, at minimum, contain a statement of the number of handicapped students currently receiving special education services, estimates of the number of students who will be identified as handicapped and require special education services prior to or during the next school year, estimates of the number and type of special classes required, estimates of the number of additional staff necessary to perform evaluations and provide instruction and related services and to effectuate placements within the required time limits, the additional supplies and instructional materials required for the proposed classrooms, and the estimated cost of all these items. A copy of this assessment will be furnished to the State defendants and plaintiffs1 counsel in each of the next three school years, prior to the District's adoption of its budget for the following school year. 91. The local defendants shall annually reserve sufficient classrooms, instructional materials and supplies, and recruit and hire sufficient special education teachers and support staff to ensure timely evaluation and placement of the projected number of students who will be newly classified as having handicapping
60

conditions during the upcoming school year as well as those already classified.
92. In early January of every school year, the local defendants shall evaluate the projections of need made the preceding spring to determine whether a sufficient number of classrooms and instructional and support personnel were projected and budgeted for to allow for timely evaluation and placement of all handicapped students requiring placement during the school year. This evaluation shall include a comparison of the number of referrals actually received and special education placements actually recommended by the COH with the number projected. A copy of this evaluation will be furnished to the State defendants and plaintiffs' counsel in each of the next three school years by January 15.
93. If the above-described mid-year evaluation shows that additional classrooms and/or instructional and support personnel will be needed during the second semester of the school year in order to allow for timely placement of handicapped students identified during the first semester and to be identified during the second semester, the local defendants shall hire staff for and open at the beginning of the second semester whatever number of additional special education classes are shown to be needed.
61

SECTION K TRAINING QF STAFF REGARDING SPECIAL EDUCATION PROCEDURES
94. By December 1, 1983, the local defendants shall develop a Plan for Special Education Training which shall include at least the following elements:
a) Training of all COH members as to the specific duties of the COH and the particular duties of each COH member and all other relevant procedures described in this Stipulation and in any Stipulation entered in the companion case (Mi£lia.£l I.);
b) Training of all PPS team members as to the specific duties of the PPS team and each member of the team, the procedures for completing timely evaluations of students, the procedures for delivering and presenting evaluative information to parents and the COH, and all other procedures described in this Stipulation with which they may become involved.
c) Training of all building administrators as to procedures relating to referrals, completion of evaluations, presentation of information to COH, monitoring and enforcement procedures, use of the School Tracking Log, maintenance in thencurrent placement, suspension of handicapped students, enrollment of new entrants, and all other procedures described in this Stipulation with which they may become involved.
d) Training of all special education teachers in use of new forms and procedures, maintenance in then-current
62

placement, suspension of handicapped students, development of Phase II IEPs with appropriate parental involvement, and all other procedures described in this Stipulation with which they may become involved.
e) Training of all regular education teachers in procedures for referral of students suspected of having handicapping conditions, maintenance in then-current placement and suspension of handicapped students, the placement of newly enrolled handicapped students, and any other procedures described in this Stipulation with which they may become involved.
95. The above-described Plan shall include a schedule for initial training of all groups described in paragraph 94 above no later than January 30, 1984, as well as a schedule for annual training of all such groups.
96. The local defendants shall forward to the plaintiffs1 counsel a copy of the Plan for Special Education Training by December 1, 1983. Upon approval of the plan through the procedures described in paragraph 10 of this Stipulation, the plan shall be incorporated in this Stipulation as Exhibit HH.
97. In relation to the training of PPS team members described in paragraph 94(b) above, the local defendants shall develop a PPS Manual no later than December 1, 1983. A copy of the PPS Manual shall be forwarded to plaintiffs' counsel upon completion and/or at any earlier stage if local defendants desire comment from plaintiffs' counsel.
98. In relation to the training of all groups described in
63

paragraph 94 and for the purpose of clarifying and disseminating information about the terms of this Stipulation to all District staff, the local defendants shall develop a revised Special Education Manual covering all aspects of the special education system and procedures in the District. This Manual shall be developed and written cooperatively with plaintiffs1 counsel. Plaintiffs1 counsel agree to make themselves available at any time, upon reasonable notice, for purposes of development of this manual. The local defendants shall forward a copy of the first draft of this manual to plaintiffs1 counsel no later than December 1, 1983. Within two weeks of receipt of the first draft of the manual, plaintiffs1 counsel shall deliver to the local defendants their comments and any proposed modifications or additions to the manual. The local defendants shall meet with plaintiffs1 counsel on a regular basis until agreement is reached on all aspects of the manual. Any forms or matters of policy or procedure to be included in the manual which either party deems to be in violation of this Stipulation may be referred for resolution to the Court pursuant to paragraph 10 of this Stipulation.
64

SECTION L STATE MONITORING 99. The parties agree that compliance with the terms of this Stipulation which require timely mailing of a variety of documents to parents of handicapped and potentially handicapped students can best be monitored by reviewing on an annual basis a statistically significant number of student records at each of the District's schools and programs at which handicapped students are educated. In this way school-based problems with compliance can be consistently identified and corrected. 100. Because the parties agree that the State defendants are legally responsible for performing this monitoring (referred to throughout this Stipulation as the "annual student record review"), and because the State defendants are not parties to this Stipulation, it is the intention of the plaintiffs to seek relief against the State defendants, either by stipulated settlement or Court Order, which will require them to perform this annual student record review. As of the date that such relief is obtained, the annual student record review referred to in this Stipulation shall mean the review ordered or agreed to be performed by the State defendants. 101. Until such time as ultimate relief on the issue of monitoring responsibilities is obtained against the State defendants, the annual student record review shall mean whatever review of the records of handicapped students is in fact being performed by the State defendants. The local defendants shall
65

forward to p l a i n t i f f s 1 counsel copies of a l l w r i t t e n communications from the State defendants, whether in "draft" or "final" form, regarding such record reviews within ten days of receipt. The local defendants shall also afford p l a i n t i f f s 1 counsel access to the records of handicapped students, upon reasonable notice to local defendants, for the purpose of monitoring compliance with the terms of this Stipulation which require timely mailing of a variety of documents to parents of handicapped and potentially handicapped students. If either party to t h i s Stipulation is dissatisfied with the ultimate r e l i e f obtained against the State defendants, e i t h e r by stipulated settlement or Court Order, with regard to the issue of State monitoring responsibilities, t h i s issue shall be deemed reopened for negotiation between the p a r t i e s . If, a f t e r negotiation, the parties are unable to reach agreement, any party may make application to the Court for an Order.
66

SECTION M PLAES.
102. In order to effectuate the terms of this Stipulation the local defendants shall prepare a plan containing at least the following components:
a) A computerized reporting system which shows during each reporting period:
i. the total number of referrals received by the COH;
ii. the number of new referrals received by the COH;
iii. the number of referrals received by the COH for change in classification, placement and/or program;
iv. the number of referrals received by the COH for third year reevaluations;
v. the number of referrals for expedited COH meetings and temporary placement requests for currently enrolled handicapped students;
vi. the number of referrals for expedited COH meetings as a result of disciplinary proceedings;
vii. the number of referrals and temporary placement requests for new entrants (where handicapping condition is substantiated from prior school);
viii. the number of COH meetings held and a breakdown of the COH recommendations by classification and type
67

of program; ix. the number of COH meetings held by the week
of the 30th school day after referral; x. the number of COH meetings not held by the
week of the 30th school day after r e f e r r a l , with coded reasons why such meetings were not held;
xi. the number of COH meetings which had to be rescheduled, with coded reasons why such meetings were rescheduled;
x i i . the total number of students whose placement is effective during the reporting period, with a distribution report of the number of school days between the date of COH recommendation (or the date of a decision by an impartial hearing officer or the Commissioner of Education) and the date of placement;
x i i i . the number of students who, as of the l a s t day of the reporting period, have not been placed by the 30th school day from COH recommendation (excluding students for whom an impartial hearing has been requested by the parent, or for whom an impartial hearing has been requested by the COH because the parent has not signed the Phase I IEP giving consent for an i n i t i a l placement in s p e c i a l education) reported by the c l a s s i f i c a t i o n / t y p e of placement/age level and the number of school days since the date of the COH recommendation.
Such reporting system shall clearly present the abovedescribed information. The local defendants shall make maximum
68

reasonable efforts to provide the above-described information in comprehensible form prior to the computerization of the reporting system. The fully computerized reporting system shall be operational during the 1983-84 school year.
b) A set of Criteria for Placement on Home Instruction which shall describe the symptoms, diagnoses, testing results, etc., which may establish that home instruction is the least restrictive environment in which a handicapped child can be educated;
c) Procedures for Parental Involvement in Development of Phase II IEPs as referred to in Section G of this Stipulation, which shall include: revised letters to be sent to parents informing them of the time, date and location of the Phase II IEP conference; and a requirement that copies of parent notification letters and Phase II IEPs be filed in the student's cumulative folder.
103. The plans referred to in paragraph 102(b) and (c) above shall be delivered to plaintiffs' counsel by December 1, 1983. The plan referred to in paragraph 102(a) above shall be delivered to counsel for the parties by December 31, 1983, except that by October 1, 1983, the local defendants shall advise plaintiffs' counsel of the manner in which the information described in paragraph 102(a) will be provided prior to the computerization of the reporting system. These plans shall be subject to approval pursuant to paragraph 10 of this Stipulation.
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104. The local defendants shall forward to plaintiffs' counsel and the State defendants monthly reports containing the information referred to in paragraph 102(a). This monthly reporting period may be modified by mutual agreement.
70

SECTION N

DAMAGES 105. The parties are unable to resolve the issue of damages to the individual plaintiffs until the United States Court of Appeals for the Second Circuit resolves the appeal in OilasLk^nhush v_«. Johnson £±£v. s_c.h_Qj}.i EisiiiiLtr No. 82-7695, which has been argued before the Court. Therefore, the parties agree to sever the claims for individual damages and to attempt to resolve them through negotiation after the Second Circuit issues its decision Qn.a.£.lL£li.bjl.£ll. If negotiations are unproductive, plaintiffs shall notify the Court and the severed claim shall be
1 enda r.

ADAM D. KAUFMAN, ESQ. MICHAEL B. KIRSCHEN, ESQ.,
of Counsel 131 West Broad Street Rochester, New York 14608 Tel: (716) 325-4560

L
GREATER UPSTATE LAW PROJECT ELIZABETH L. SCHNEIDER, ESQ.,
of Counsel 101 Powers Building Rochester, New York 14614 Tel: (716) 454-6500

Attorneys for Rochester Defendants

MONRGIE COUNTY LEGAl/ ASSISTANCE

CORPORATION

/

BRYAN D. HETHERINGTON, ESQ.,

of Counsel

100 Powers Building

Rochester, New York 14614

Tel: (716) 325-2520

71

-f\
WESTERN NEW YORK PROTECTION AND ADVOCACY OFFICE FOR THE DEVELOPMENTALLY DISABLED
NEIGHBORHOOD LEGAL SERVICES, INC.
DAVID A. MUNRO. ESQ., of Counsel
495 Ellicott Square Building 295 Main Street Buffalo, New York 14203 Tel: (716) 847-0650 Attorneys for Plaintiffs
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 CM/ECF LIVE - U.S. District Court:nywd - Docket Report

Page 1 of 12

CLOSED_2002
U.S. DISTRICT COURT WESTERN DISTRICT OF NEW YORK [LIVE] (Rochester)
CIVIL DOCKET FOR CASE #: 6:81-cv-00173-MAT-JWF

J.G., et al v. Roch. Brd. of Edu., et al Assigned to: Hon. Michael A. Telesca Referred to: Hon. Jonathan W. Feldman Demand: $162,000 Cause: 42:1983 Civil Rights Act Special Master Ruth Scott
Plaintiff J.G. by his mother and next friend, Mrs. G.

Date Filed: 01/01/1981 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Ruth Scott Scott Associates and Consultants, Inc. 30 Arvine Heights Rochester, NY 14611 PRO SE
represented by Bryan D. Hetherington Public Interest Law of Rochester 80 St. Paul Street Suite 701 Rochester, NY 14604 585-295-5809 Fax: 585-454-4019 Email: bhetheri@wnylc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Munro New York State Department of Law Environmental Protection Bureau The Capitol Albany, NY 12224 518-474-8481 Fax: 518-473-2534 Email: david.munro@oag.state.ny.us TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Schneider Monroe County Legal Assistance Corp. 80 St. Paul Street Suite 700 Rochester, NY 14604

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Page 2 of 12

Plaintiff M.W. by her mother and next friend Mrs. W.
Plaintiff A.M. by his mother and next friend Mrs. M.

TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Feldman Empire Justice Center 80 St. Paul Street Suite 701 Rochester, NY 14604 585-295-5813 Fax: 585-454-4019 Email: jfeldman@wnylc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan D. Hetherington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Munro (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Schneider (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Feldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan D. Hetherington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Munro (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?917634167542359-L_280_0-1

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Page 3 of 12

Plaintiff K.M. by her mother and next friend Mrs. M. on behalf of themselves and all persons similarly situated
V. Defendant The Board of Education of the Rochester City School District

Elizabeth L. Schneider (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Feldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan D. Hetherington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Munro (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Schneider (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Feldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt Rochester City School District 131 West Broad Street Rochester, NY 14614 (716) 262-8412 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash Rochester City School District 131 West Broad Street Rochester, NY 14614 (716) 262-8412

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Defendant John Delvecchio
Defendant Archie Curry
Defendant Frank Willis
Defendant Irene Frusci

TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY

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Defendant Josephine Geneovese
Defendant Karen Grella
Defendant Gary Smith individually and their official capacities as members of the Board of Education of the Rochester City School District
Defendant Laval M. Wilson in his official capacity as Superintendent of the Rochester city Schools

ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Bernard S. Greenberger individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools
Defendant Robert Lays individually and in his official capacity as Assistant Director of the Department of Special capacity as Assistant Director of the Department of Special Education of the Rochester City Schools
Defendant Joseph Salemi individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools
Defendant New York State Education Department

represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis N. Kash (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth Pawson Education Building Albany, NY 12234 TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant
Gordon M. Ambach in his official capacity as Commissioner of the New York State Education Department

Robert D. Stone Education Building Albany, NY 12234 TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald T. Schmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth Pawson (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Stone (See above for address) TERMINATED: 02/15/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/27/1996
03/04/1996 03/04/1996 03/08/1996 03/26/1996 03/26/1996 03/28/1996 03/28/1996 04/01/1996

#

Docket Text

ORDER REFERRING CASE to USMJ Jonathan W. Feldman for supervision, implementation and submission of a comprehensive three year plan. Plans to be submitted by the parties for consideration no later than 4/1/96. ( signed by USDJ Michael A. Telesca ) (CM) (Entered: 03/21/1996)

Status conference held before JWF (CM) (Entered: 03/21/1996)

Minute entry:, set Status Conference for 3:00 3/8/96 before JWF (CM) (Entered: 03/21/1996)

Status conference held before JWF (CM) (Entered: 03/21/1996)

Settlement conference held (JWF) (CM) (Entered: 04/03/1996)

Minute entry:, set Settlement Conference for 11:15 3/28/96 (JWF) (CM) (Entered: 04/03/1996)

Settlement conference held (JWF) (CM) (Entered: 04/03/1996)

Minute entry:, set Settlement Conference for 4:30 4/1/96 (JWF) (CM) (Entered: 04/03/1996)

95 LETTER ORDER granting request to extend time for counsel to contine working on the action. ( signed by USDJ Michael A. Telesca ) Notice and

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04/04/1996 04/04/1996 04/09/1996 04/09/1996 04/18/1996 05/09/1996 06/03/1996 06/03/1996 06/03/1996
07/10/1996 08/07/1996 09/09/1996
09/12/1996 10/29/1996
10/29/1996 11/13/1996 05/01/1997

copy of order sent to Ruth Scott, Robert D. Stone, Kenneth Pawson, Louis N. Kash, David A. Munro, Bryan D. Hetherington, Elizabeth L. Schneider (CM) (Entered: 04/01/1996)
Settlement conference held (JWF) (CM) (Entered: 04/12/1996)
Minute entry:, set Settlement Conference for 2:30 4/9/96 (JWF) (CM) (Entered: 04/12/1996)
Settlement conference held before JWF. (CM) (Entered: 04/19/1996)
Minute entry:, set Settlement Conference for 2:00 4/18/96 (JWF) (CM) (Entered: 04/19/1996)
Settlement conference held (JWF) (CM) (Entered: 05/01/1996)
Settlement conference held (JWF) (CM) (Entered: 05/21/1996)
96 MOTION by plaintiffs for contempt. Motion Hearing set for 9:00 7/10/96 (CM) (Entered: 06/04/1996)
97 MEMORANDUM by plaintiffs in support of [96-1] motion for contempt. by K.M., A.M., M.W., J.G. (CM) (Entered: 06/04/1996)
98 JOINT DECLARATION of Elizabeth Schneider, Esq. and Bryan Hetherington, Esq., on behalf of J.G., M.W., A.M., K.M., Re: [96-1] motion for contempt. by K.M., A.M., M.W., J.G. (CM) (Entered: 06/04/1996)
Minute entry:, Motion Hearing reset for 8/7/96 for [96-1] motion for contempt (MAT). (CM) (Entered: 07/12/1996)
Minute entry:, Motion Hearing set for 9/12/96 for [96-1] motion for contempt (MAT) (CM) (Entered: 08/08/1996)
Deadline updated; Motion Hearing set for 9:00 11/13/96 for [96-1] motion for contempt before MAT pursuant to notice. (CM) (Entered: 09/10/1996)
Minute entry:, Motion Hearing set for 11/13/96 for [96-1] motion for contempt (MAT). (CM) (Entered: 09/13/1996)
99 LETTER submitted by Bryan Hetherington, Esq. and Louis Kash, Esq. withdrawing, without prejudice, plaintiffs' motion for contempt. (CM) (Entered: 10/30/1996)
Deadline updated; withdrawing [96-1] motion for contempt pursuant to document #99. (CM) (Entered: 10/30/1996)
Minute entry: [96-1] motion for contempt withdrawn (MAT) (CM) (Entered: 11/13/1996)
100 MODIFIED STIPULATION and ORDER TO ENTRY OF CONSENT DECREE signed by USDJ Michael A. Telesca . Notice and copy of order sent to Ruth Scott, Robert D. Stone, Kenneth Pawson, Louis N. Kash, David A. Munro, Bryan D. Hetherington, Elizabeth L. Schneider . (CM)

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05/01/1997 04/22/1998 01/30/2001
02/15/2001 04/13/2001 04/13/2001
04/13/2001 04/13/2001 04/18/2001 04/19/2001 04/19/2001 04/23/2001 04/24/2001
08/01/2001

(Entered: 05/01/1997)
Minute entry:, Status Conference adjourned without date (MAT) (CM) (Entered: 05/05/1997)
Status conference held (MAT) (CM) (Entered: 04/22/1998)
101 ORDER TO SHOW CAUSE Show Cause Hearing set for 10:00 2/15/01 ( signed by Senior USDJ Michael A. Telesca ) Notice and copy sent to Ruth Scott, Robert D. Stone, Kenneth Pawson, Louis N. Kash, David A. Munro, Bryan D. Hetherington, Elizabeth L. Schneider . (TO) (Entered: 01/30/2001)
102 Minute entry: Order to show cause hearing reset for 4/24/01 (MAT) (TO) (Entered: 02/20/2001)
103 RESPONSE/AFFIDAVIT by Dr. Clifford Janey, Supr. of Schools for the Rochester City School District to [101-1] order to show cause and in support of terminating the consent decree (TO) (Entered: 04/16/2001)
104 RESPONSE/AFFDAVIT by Marie Cianca Director for the education of exceptional children for the Rochester City School District to [101-1] order to show cause and in support to terminating the consent decree (TO) (Entered: 04/16/2001)
Exhibits received related to doc.'s #103 and 104. (TO) (Entered: 04/16/2001)
105 CERTIFICATE OF SERVICE [0-0] exhibits, [104-1] miscellaneous response, [103-1] miscellaneous response upon Bryan Hetherington, Esq., Public Interest Law Office (TO) (Entered: 04/16/2001)
106 AFFIDAVIT by Michael Looby attorney Roch. Brd. of Edu. in support of terminating the consent decree (TO) (Entered: 04/19/2001)
107 DECLARATION by Jonathan Feldman and Bryan Hetherington, Esq. attorney for plaintiffs J.G., M.W., A.M., K.M. Re: [101-1] order to order to show cause (TO) (Entered: 04/19/2001)
108 MEMORANDUM by J.G., M.W., A.M., K.M. in response [101-1] order to show cause (TO) (Entered: 04/19/2001)
109 REPLY/RESPONSE by Marie Cianca [107-1] affirmation by Jonathan Feldman and Bryan Hetherington attorney for plaintiffs K.M., A.M., M.W., J.G. (TO) (Entered: 04/24/2001)
110 Minute entry: Order to show cause re: consent decree; court holds matter in abeyance until 11/1/01 at 10:00; for status report; def. to provide the court with monthly status reports commencing 6/1/01 (MAT) (TO) (Entered: 05/10/2001)
111 Letter by Roch. City School re: Rochester City School District's third monthly report detailing the ongoing process to foster sucess for students with disabilities (TO) (Entered: 08/02/2001)

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08/07/2001 08/08/2001 08/27/2001
09/26/2001 10/03/2001
11/01/2001 11/01/2001 11/05/2001
11/19/2001 11/20/2001 11/27/2001 12/07/2001 01/14/2002
01/14/2002

112 LETTER by the Rochester City School District regarding the application for legal fees submitted by PILOR (TO) (Entered: 08/08/2001)
113 Letter RESPONSE by Feldman attorney for J.G., M.W., A.M., K.M. to [112-1] letter (TO) (Entered: 08/09/2001)
114 ORDER granting plaintiffs' July 2001 application for attorneys' fees in the reduced amount of $12,950.00 and plaintiffs' August 2001 Application for fees in the amount of $2,767.50 ( signed by Senior USDJ Michael A. Telesca ) Notice and copy of order sent to Ruth Scott, Donald T. Schmitt, Jonathan Feldman, Bryan D. Hetherington (JL) (Entered: 08/28/2001)
Deadline updated; reset Status Report deadline to 10:00 11/27/01 pursuant to notice (MAT) (TO) (Entered: 09/27/2001)
115 LETTER by Roch. City School Dist. regarding a typographical error in the headings on at the top of the table on page 3 of the October Report filed 10/1/01 (caption should read: 2001-2002 Percent Included) (TO) (Entered: 10/04/2001)
116 MOTION by Rochester City School Dist. to Extend Time to file monthly report (TO) (Entered: 11/02/2001)
118 Minute entry: status re: Consent decree reset Status Conference for 11/27/01 (MAT) (TO) (Entered: 11/15/2001)
117 LETTER by Rochester City School District regarding the sixth monthly report detailing the Rochester City School ongoing process to ensure success for students with disabilities, with attached report (TO) (Entered: 11/06/2001)
119 SUPPLEMENTAL JOINT DECLARATION OF Jonathan Feldman and Bryan Hetherington in RESPONSE by J.G., M.W., A.M., K.M. to [1011] order to show cause (TO) (Entered: 11/20/2001)
120 BRIEF by Roch. Brd. of Edu. for the Roch. City School Dist. (TO) (Entered: 11/21/2001)
121 Minute entry: [101-1] order to show cause under advisement (MAT) (TO) (Entered: 11/28/2001)
122 LETTER by Rochester City School Dist. re: payments made to PILOR with attached 5 page spreadsheet, entitled "Transaction Listing" (TO) (Entered: 12/10/2001)
123 ORDER, that the 1997 Consent Decree has expired by its own terms and that this court lacks jurisdiction over the expired decree to Dismiss case with prejudice ( signed by Senior USDJ Michael A. Telesca ) Notice and copy of order sent to Ruth Scott, Donald T. Schmitt, Jonathan Feldman, Bryan D. Hetherington, Mike Looby (TO) (Entered: 01/14/2002)
124 JUDGMENT ( signed by Clerk ). Notice and copy of judgment sent to Ruth Scott, Donald T. Schmitt, Jonathan Feldman, Bryan D.

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01/14/2002 01/16/2002 01/17/2002 02/08/2002
02/21/2002 03/12/2002
04/03/2002 04/03/2002 04/09/2002 05/17/2002 06/06/2002 01/21/2003
01/23/2003

Hetherington, Mike Looby (TO) (Entered: 01/14/2002)
Case closed (TO) (Entered: 01/14/2002)
125 MOTION by J.G., M.W., A.M., K.M. to Amend [124-1] judgment order, [123-1] order to Dismiss case with prejudice (TO) (Entered: 01/16/2002)
Deadline updated; [125-1] motion to Amend [124-1] judgment order, [123-1] order to Dismiss case with prejudice submitted on 2/21/02; pursuant to notice (MAT) (TO) (Entered: 01/17/2002)
126 AFFIRMATION by Michael Looby attorney for Roch. City School District in opposition to [125-1] motion to Amend [124-1] judgment order, [123-1] order to Dismiss case with prejudice by K.M., A.M., M.W., J.G. (TO) (Entered: 02/11/2002)
127 Minute entry: [125-1] motion to Amend [124-1] judgment order, [123-1] order to Dismiss case with prejudice submitted (MAT) (TO) (Entered: 02/22/2002)
128 ORDER denying [125-1] motion to Amend [124-1] judgment order, [123-1] order to Dismiss case with prejudice ( signed by Senior USDJ Michael A. Telesca ) Notice and copy of order sent to Ruth Scott, Donald T. Schmitt, Jonathan Feldman, Bryan D. Hetherington (TO) (Entered: 03/13/2002)
129 NOTICE OF APPEAL by J.G., M.W., A.M., K.M. . Fee Status: 105.00 (MMG) (Entered: 04/03/2002)
130 FILED USCA Form D. by plaintiffs. (MMG) (Entered: 04/03/2002)
Notice of appeal and certified copy of docket to USCA: [129-1] appeal by K.M., A.M., M.W., J.G. (MMG) (Entered: 04/09/2002)
Received USCA Scheduling Order Re: [129-1] appeal by K.M., A.M., M.W., J.G. USCA NUMBER: 02-7398 Appeal record due on 6/4/02 (MMG) (Entered: 05/17/2002)
Certified and transmitted index to record on appeal to U.S. Court of Appeals: [129-1] appeal by K.M., A.M., M.W., J.G.(USCA# 02-7398) (MMG) (Entered: 06/06/2002)
131 MANDATE OF USCA (certified copy) affirming the Judgment of District Court therefore, dismissing the appeal. Re: [129-1] appeal by K.M., A.M., M.W., J.G. (USCA# 02-7398) (MMG) (Entered: 01/22/2003)
132 ORDER making Mandate from USCA, Second Circuit the Judgment of this Court. ( signed by Senior USDJ Michael A. Telesca ) Notice and copy of order sent to Ruth Scott, Donald T. Schmitt, Jonathan Feldman, Bryan D. Hetherington (USCA# 02-7398) (MMG) (Entered: 01/25/2003)

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 648 F.Supp. 1452 (1986)
J.G., by his mother and next friend MRS. G.; M.W., by her mother and next friend, Mrs. W.; A.M., by his mother and next friend, Mrs. M., and K.M., by her mother and next friend, Mrs.
M.; on behalf of themselves and all persons similarly situated, Plaintiffs, v.
The BOARD OF EDUCATION OF the ROCHESTER CITY SCHOOL DISTRICT; John Delvecchio; Archie Curry; Frank Willis; Irene Frusci; Josephine Genovese; Karen Grella, and Gary Smith, individually and in their official capacities as members of the Board of Education of the Rochester City School District; Laval M. Wilson, in his official capacity as Superintendent of the Rochester City Schools; Bernard S. Greenberger, individually
and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; Robert Lays, individually and in his official capacity as Assistant
Director of the Department of Special Education of the Rochester City Schools; Joseph Salemi, individually and in his official capacity as Assistant Director of the Department of
Special Education of the Rochester City Schools; the New York State Department of Education; and Gordon M. Ambach, in his official capacity as Commissioner of the New
York State Education Department, Defendants.
No. CIV-81-173T.
United States District Court, W.D. New York.
December 3, 1986.
1453 *1453 Greater Upstate Law Project (Elizabeth L. Schneider, of counsel), Monroe County Legal Assistance Corporation (Bryan D. Hetherington, of counsel), Rochester, N.Y. Western New York Protection & Advocacy Office for the Development of Mentally Disabled Neighborhood Legal Services, Inc. (David A. Munro, of counsel), Buffalo, N.Y., for plaintiffs.
Rochester City School District (Adam Kaufman, of counsel), Rochester, N.Y. and N.Y.S. Dept. of Education (Kenneth Pawson, of counsel), Albany, N.Y., for defendants.
TELESCA, District Judge.
Plaintiffs filed this class action suit on behalf of handicapped students in the Rochester City School District in March of 1981. The Board of Education for the City Schools, the State Department of Education and Gordon Ambach, its Commissioner, were named as defendants. Plaintiffs allege that handicapped children were being denied appropriate public education designed to meet their special needs and sought relief under Education of All Handicapped Children Act, 20 U.S.C. § 1401, et seq., The Rehabilitation Act of 1973, 29 U.S.C. § 794, and Civil Rights Act of 1871, 42 U.S.C. § 1983. The merits of the case were resolved in a consent degree entered into between the plaintiffs and the defendant Board of Education on August 11, 1983. In March of 1986, plaintiffs moved to dismiss without prejudice their complaint against the defendants New York State Department of Education and Gordon Ambach, its Commissioner and for attorneys' fees pursuant to 42 U.S.C. § 1988. In an order dated July 8, 1986, I granted the motion to dismiss without prejudice but denied the motion for attorneys' fees. The denial was based on the fact that the consent degree represented relief under Education for the Handicapped Act ("EHA"), which did not provide for attorneys' fees, and was not based on the § 1983 cause of action. Plaintiffs filed an appeal of that decision.
Before the appeal was heard President Reagan signed into law the Handicapped Children Protection Act of 1986, Public Law 99-372, which provides for attorneys' fees in EHA cases. The parties then stipulated to withdraw the appeal and moved for reconsideration of the attorneys' fees issue in light of the new law.

BACKGROUND
This action was filed in March of 1981 before my predecessor the late Honorable Harold P. Burke. Upon Judge Burke's death, the case was transferred to the Honorable John T. Elfvin. Prior to answering the complaint, the defendants moved to dismiss based, inter alia, on the argument that plaintiffs were required, under EHA, to exhaust administrative remedies. In a decision dated March 30, 1982, Judge Elfvin denied the defendants' motion. Judge Elfvin held that 20 U.S.C. § 1415 provides a cause of action not simply for an appeal of a final 1454 administrative decision concerning *1454 evaluation or placement of a handicapped student but also for seeking relief for system wide violations of the Act. Thus he concluded that the plaintiffs need not have exhausted either federal or State administrative remedies before filing their legal action.
Because it was my feeling that all of the parties in the case had the interest of handicapped children at heart, and because they all desired to work out a system of providing quality education to these deserving children I set in motion the process of working towards a settlement of the dispute. Although the parties were initially far from agreement, over a period of more than a year, and after six status conferences, the parties were finally able to reach an agreement. Meetings were held not only with attorneys but also with those individuals actually involved in the day-to-day implementation of education for the handicapped in the City of Rochester. State Commissioner of Education Gordon Ambach attended some of the status conferences as did Superintendent of Rochester City Schools Dr. Lavall Wilson.
As I stated in my findings of fact and conclusions of law
38. The proposed settlement when taken as a whole represents significant gains for handicapped children and their parents in the Rochester City School District. The provisions achieve the relief sought by the plaintiffs since what they sought were plans to remedy the problems which they alleged have existed in the system. The agreement provides such plans.
The plan is contained in the consent agreement signed by plaintiffs and the defendant Board of Education. The detailed, comprehensive consent agreement contains 71 pages with 34 exhibits in an appendix.
The agreement was detailed enough so as to provide for an operational model for the evaluation and placement of handicapped children, and yet flexible enough so as not to require the parties to return to this Court seeking contempt orders whenever a dispute might arise. The agreement was well received both by public opinion, and by Rochester City officials.[1] As I stated in Court when I accepted the proposed settlement, [it] "assures a great improvement in the quality of services to be afforded to the handicapped child in Rochester."
The State defendants refused to enter into and sign the consent decree. One of the main basis for their objection was their insistence that plaintiffs' attorneys must first waive any right to attorneys' fees before the State would consider signing the consent agreement.
At the time negotiations toward the consent agreement were taking place, this Court and the attorneys involved were working under the restrictions they understood to be imposed upon them by Prandini v. National Tea Company, 557 F.2d 1015, 1021 (3rd Cir.1977) which states that a court should insist on settlement of the damages aspect of a class action suit separately before any discussion of attorneys' fees takes place. Malchman v. Davis, 706 F.2d 426 (2d Cir.1983). Based on the constraints placed on the parties by this authority I directed them not to discuss attorneys' fees until after negotiation on the merits were complete. Plaintiffs' attorneys were scrupulous in avoiding any discussion of their fees during the entire lengthy negotiations process ultimately leading to the consent settlement. Indeed the settlement itself reflected the parties' understanding of this issue
9. Because of the ethical considerations involved, the attorneys for the parties are unable to discuss the issue of attorneys' fees and other costs as part of the settlement agreement. The attorneys for the parties acknowledge that these issues remain to be decided.
The six status conferences which I held with the parties supplemented the weekly negotiation sessions that occurred between April of 1982 and March of 1983. Although the State defendants were repeatedly invited and

encouraged to attend these negotiation sessions, they chose not to participate until April of 1983 when the broad outlines of the agreement had already been developed by the plaintiffs and local defendants. The State was intransigent in its position that it would not participate in settlement discussions unless the other parties agreed 1455 that a settlement would require no modification of any existing *1455 or future regulation propounded by the State Department of Education and that plaintiffs' attorneys agree to waive any right to attorneys' fees against the State defendants. The parties were able to comply with the State's first demand and this was reflected in my findings of fact and conclusions of law which I issued upon acceptance of the consent settlement:
44. Nothing in this consent judgment shall be construed to nullify any present provision of any New York State statute or any regulation of the Commissioner of Education, or any such future provision which is not inconsistent with federal statutory or regulatory provisions governing the education of children with handicapping conditions.
However, based on the ethical constraints, legal authority, and my own instructions plaintiffs were unable to discuss with the State defendants the question of attorneys' fees prior to the settlement on the merits. As a result the State defendants refused to enter into the settlement process and the consent decree was signed only by plaintiffs and local defendants.
After the plan had been implemented and was working in the school system for two school years, plaintiffs returned to this Court seeking dismissal without prejudice of their claims against the State defendants and for attorneys' fees against both the local and State defendants. In a class action suit, even if the class has not been certified, Fed.R.Civ.P. 23(e) requires the District Court to approve dismissal of any action so as to insure that unrepresented potential class members are not prejudiced. Shelton v. Pargo, Inc., 582 F.2d 1298 (4th Cir.1978). In making its arguments, plaintiffs stated that although the State defendants were not parties to the consent decree and further that they had not produced a written plan to improve the monitoring of the local school board, yet there was in fact an improvement in the monitoring and the consent decree had brought the local school board into line with State regulations. Plaintiffs argued that were they to continue to and prevail at trial, they could obtain no more than they already had, that is, "a consent judgment requiring correction of all violations and an increased and a better focused monitoring efforts by the district and State defendants." (Plaintiffs' Memorandum of Law, p. 7.)
In July of 1986, I granted plaintiffs' motion for dismissal without prejudice of their complaint against the State defendants but denied their motion for attorneys' fees. The denial of attorneys' fees was based on Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), which held that where plaintiffs could receive their full relief under the EHA they therefore could not also recover under 42 U.S.C. § 1983. In a settlement which could be interpreted as the plaintiff having been a prevailing party, if the relief which plaintiff obtained was available under EHA then the courts will not allow recovery of attorneys' fees based on § 1983 for "unaddressed constitutional claims." Smith v. Robinson, supra, at 3465. In short, the essence of the relief afforded the plaintiffs was pursuant to EHA and not § 1983 and fees therefore could not be awarded pursuant to § 1988.
Plaintiffs filed a timely appeal of the denial of their motion for attorneys' fees pursuant to 42 U.S.C. § 1988. While the appeal was pending Public Law 99-372, Handicapped Children Protections Act, was passed by Congress and became law. That act amends the EHA to explicitly authorize an award of attorneys' fees to the prevailing plaintiffs who obtain relief under the EHA. Based on the enactment of PL 99-372, plaintiffs and defendants stipulated to a withdrawal of plaintiffs' appeal, subject to reinstatement, after this Court's decision of a motion to reconsider the attorneys' fees question in light of PL 99-372.
In opposition to the motion, the local defendants have argued that the EHA, even as amended, requires the plaintiffs to have exhausted administrative remedies before they can be considered a prevailing party eligible for attorneys' fees. The State defendants argue that plaintiffs in this case cannot be considered to have prevailed against the State defendants because the State defendants did not enter into the consent decree and no other form of relief was granted against them.
DISCUSSION

A. Exhaustion of Administrative Remedies

1456 Congress passed the Education for All Handicapped Children Act of 1975 in *1456 response to what it viewed as the unacceptable situation where

a majority of handicapped children in the United States "were either totally excluded from the schools or were sitting idlely in regular classrooms awaiting the time when they were old enough to drop out."

Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982). (citations omitted.) The 1975 Act became part of the Education for the Handicapped Act, 20 U.S.C. § 1401 et seq. One impetus to the passage of the Act was the fact that two District Court cases had held that the United States Constitution guaranteed handicapped children many of the rights which were eventually articulated in the Act.[2] Regardless of the fact that it recognized that a plaintiff seeking relief under EHA might be raising a claim which could also be filed as a civil rights action under 42 U.S.C. § 1983[3], the Supreme Court held in Smith v. Robinson, supra, that a prevailing plaintiff could not recover attorneys' fees pursuant to 42 U.S.C. § 1988 for their unadjudicated constitutional claims if the relief they were granted was available under EHA. EHA at that time did not provide for attorneys' fees. Congress responded to this situation by passing the Handicapped Children Protection Act of 1986. That Act addresses both the question of attorneys' fees and the question of the overlap between the EHA and other laws.

(B) In any action or proceeding brought under this Section, the Court, in its discretion, may award reasonable attorneys' fees as part of the cost to the parents or guardian of the handicapped child or youth who is the prevailing party.

An additional subsection, (f), was added to 20 U.S.C. § 1415 in order to make clear that the EHA provides an additional remedy to those which had already existed at law,

Nothing in this Title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, Title V of the Rehabilitation Act of 1973, or other federal statutes protecting the rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (b), (2) and (c) shall be exhausted to the same extent as would be required had the action been brought under this part.

Defendants, focusing on the last clause of new subsection (f), as well as on the general structure of section 1415, argue that plaintiffs can recover attorneys' fees only if they have exhausted their administrative remedies. That contention is without merit. Case law, the legislative history and the law of the case, as established by Judge Elfvin's well-reasoned and thorough opinion of March 30, 1982, make it clear that plaintiffs need not have exhausted their administrative remedies.

When the EHA was first passed, Senator Williams made the following remarks

Exhaustion of the administrative procedures established under this part should not be required for any individual complainant filing a judicial action in cases where such exhaustion would be futile either as a legal or practical matter.

121 Cong.Rec. 37416 (1975) (quoted in Smith v. Robinson, supra at Note 17).

Between the passage of the EHA and the Handicapped Children Protection Act of 1986, the legislators, aware that the question of attorneys' fees had been linked to the question of exhaustion of administrative remedies, defined more precisely the situations in which a plaintiff would not be required to exhaust.

1457

Typically, a parent is required to exhaust administrative remedies where complaints involve the identification, evaluation, educational placement, or the provision *1457 of a free appropriate

public education to their handicapped child. However, there are certain situations in which it is not appropriate to require the use of due process and review procedures set out in § 615 [20 U.S.C. § 1415] (b) and (c) of EHA before filing a lawsuit.
These include complaints that: (1) it would be futile to use the due process procedure (e.g., an agency has failed to provide services specified in the child's individualized educational program (IEP) or an agency has abridged a handicapped child's procedural rights such as the failure to make a child's records available); (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought); and (4) an emergency situation exists ...
House Report No. 99-296, page 7.
Virtually the identical language was used by Senator Simon, a cosponsor of both the 1975 bill and the 1986 bill,
It is important to note that there are certain situations in which it is not appropriate to require the exhaustion of EHA administrative remedies before filing a civil lawsuit. These include complaints that: first, an agency has failed to provide services specified in the child's individualized education program [IEP]; second, an agency has abridged or denied a handicapped child's procedural rights 0907 for example, failure to implement required procedures concerning least restrictive environment or convening of meetings; three [sic], an agency had adopted a policy or pursued a practice of general applicability that is contrary to the law, or where it would otherwise be futile to use the due process procedure 0907 for example, where the hearing officer lacks the authority to grant the relief sought; and four, an emergency situation exists 0907 for example, failure to provide services during the pendency of proceedings, or a complaint concerning summer school placement ...
131 Cong.Rec. S10400-01
As Judge Elfvin noted,
Plaintiffs' allegations, if proven, amount not merely to isolated, individual violations of the EAHCA, § 504 the Rehabilitation and the Education Law but to a failure by the school district to comply with said statutes on an institutional, systemic basis. ... The remedies which plaintiffs hope to procure are broad. They seek to maintain this action on behalf of a class composed of all students in the school district who have been identified as possibly in need of special education ... They request the court to require the school district to develop a satisfactory plan whereby it will comply with the statutes.
Unpublished Opinion CIV-81-173B(E), page 13.
Noting that the EAHCA's legislative history indicates that there are exceptions to the exhaustion requirement, Judge Elfvin held that such an exception was applicable in this case where plaintiffs were not complaining about a substantive educational determination, as is contemplated by the administrative procedure contained in subsections (b)(2) and (c), but rather were complaining about the school district's failure to use the procedures which the statute requires.
Recognition of a cause of action under the EAHCA to enforce compliance with the required procedure is consistent with the underlying statutory purpose. Adjudication of plaintiffs' claims will not involve undue judicial interference in matters committed to the school district discretion or peculiarly within its expertise.
Id. at page 15.
Thus, Judge Elfvin concluded that neither the State nor the federal administrative remedies were designed to correct alleged system-wide violation of EAHCA's procedures and that plaintiffs' failure to exhaust such administrative remedies does not prevent them from maintaining this action.

The "law of the case" is not a strict rule always to be followed, but rather a doctrine which directs the court's 1458 discretion, provides *1458 for a judicial economy, and makes unnecessary the relitigation of issues that have
already been decided. Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318; Riley v. MEBA Pension Trust, 586 F.2d 968 (2d Cir.1978). Particularly in this case, where Judge Elfvin's thorough analysis of the question is confirmed by subsequent congressional enactments, it would be inappropriate to reopen the issue. Judge Elfvin's findings conform almost exactly to the third exception cited in both the House and Senate Reports. To require thousands of class members to go through individual administrative hearings, or to expect the hearing officer in one case to order a system-wide change would be both impractical and futile.
B. Prevailing Party
Subsection (B) of the new law provides attorneys' fees to a "prevailing party." The local defendants do not argue that the plaintiff is not a prevailing party. As the details of the consent decree reflect and as I stated in my conclusions of law, supra, the plaintiffs achieved far reaching system-wide relief bringing the Rochester City School District into compliance with the EHA requirements. Although the issue has not been litigated with regard to this recently passed provision for attorneys' fees, I conclude that it is fair to draw the analogy from recovery for attorneys' fees under 42 U.S.C. § 1988 and conclude with the Supreme Court "the fact that [plaintiff] prevailed through a settlement rather than through litigation does not weaken her claim to fees." Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980).
My conclusion is different with respect to the defendant State Department of Education and its Commissioner Gordon Ambach. The affidavit of Kenneth Pawson, Esq., attorney for the State defendants, was not received by this Court until the day scheduled for the return of plaintiff's motion to reconsider the question of attorneys' fees. Although it would be within my discretion not to consider this out of time response, Davison v. Keenan, 740 F.2d 129, 132 (2d Cir.1984), given that Mr. Pawson was present on the return date and made oral argument, I will consider both his oral argument and the authority cited in his affidavit.
In addition to adopting the exhaustion arguments made by the School District the State defendants also make the argument that as regard to them, plaintiffs are not a prevailing party. They remind the Court that the State Department of Education, and the Commissioner, were not parties to the consent decree. Although they did not object to the filing of the consent decree, these defendants were consistent throughout this litigation in insisting that the resolution to plaintiff's complaint lay with the defendant School District complying with all State Department of Education regulations regarding placement of handicapped students. In addition, and what makes this case different from those cited by the plaintiff, is the fact that the plaintiff moved and I granted dismissal of the action, albeit without prejudice, as against the State defendants. Based on these facts, I conclude that plaintiffs are not "prevailing parties" with regard to the State defendants. Plaintiffs' motion for attorneys fees as regard the State Department of Education and Commissioner Gordon Ambach is denied.
C. Prevailing Rate
Having concluded that plaintiffs are the prevailing party entitled to attorneys' fees against the defendant Board of Education, I now turn to the question of what is an appropriate fee. Handicapped Children's Protection Act provides in subsection (C)
For the purpose of this subsection, fee awards under this subsection shall be based on rates prevailing in the community in which the action or proceeding arose in the kind and quality of services furnished. ...
Both in their initial application for attorneys' fees and in this motion to reconsider, plaintiffs have submitted a detailed argument as to the standards to be used in determining attorneys' fees, a breakdown of the time of the various attorneys who worked on the case, detailed background of each of the attorneys, a list of previous attorneys' fees awards which the various attorneys have received in practice before this Court and an assessment of the complexity of the legal issues involved.

1459 None of the defendants has addressed the question of the amount of attorneys' *1459 fees. The defendant School District attached the following statement and request to its argument against the granting of fees,
Defendant-School District is not now addressing the amount of attorneys' fees claimed by plaintiffs in this action, because it is our view that there is no statutory basis on which to base such a fee award. If the Court were to disagree with defendant-School District's contention concerning the unavailability of a fee award, the Court is respectfully requested to order a hearing to determine this issue and to allow defendant-School District a sufficient period of time to complete reasonable discovery.
A similar request is contained in the last paragraph of the affidavit of Kenneth Pawson, Esq., attorney for the State defendants.
Defendants' requests are denied. The plaintiffs have correctly pointed out that defendants have been on notice concerning these issues since May of this year 0907 well over six months ago. They had an obligation to conduct any discovery necessary to their argument prior to filing their opposition papers. In addition, both of the requests are merely general requests for a hearing, raising no issues of fact which need to be resolved. Plaintiffs application for fees are amply supported by detailed documentation of the service performed and time spent in each instance. I am persuaded by the authority cited by the plaintiff that:
Discovery requests should be precisely framed and promptly advanced before final opposition papers are filed. The District Court and the applicant are entitled to have discovery demands in clear outline at an early stage after the fee application is filed. Unfocused requests to initiate discovery without indicating its nature or extent serve no purpose, and the District Court has full discretion to deny such requests.
National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1329 (D.C.Cir.1982). Defendants' requests for discovery and an evidentiary hearing on the question of attorneys' fees are denied. There is sufficient detail submitted by the plaintiffs in support of their requested fees.
In calculating the attorneys' fees I utilize the accepted approach of multiplying the number of billable hours for each attorney by the appropriate hourly rate for that attorney. City of Detroit v. Grinnell Corporation, 560 F.2d 1093 (2d Cir.1977), Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
Three attorneys worked on this case for the plaintiffs; Betsy Broadman Swan, Esq. originally worked on the complaint in her capacity as an attorney for the Monroe County Legal Assistance Corporation ("MCLAC"). She worked initially with Elizabeth Schneider, Esq., who began work on the case while an attorney at Statewide Youth Advocates and continued to be the lead attorney in the case when she went to Greater Upstate Law Project (a legal service corporation state support center providing legal support to attorneys at legal service programs such as MCLAC). When Ms. Swan left MCLAC, work on the case for that organization was taken over by their litigation director, Mr. Bryan Hetherington, Esq. Typewritten copies of the detailed, contemporaneously kept timeslips were submitted for the work of all three attorneys.
This litigation was begun of March of 1981 when the plaintiffs' attorneys filed a complaint which contained 178 numbered paragraphs. In addition to the voluminous documents submitted by all the parties over the years, plaintiffs' attorneys were involved in weekly negotiation sessions with the defendants for over a year. As part of the consent decree, plaintiffs' attorneys have been involved, and will continue for an additional year to be involved, in monitoring the compliance of the defendant Board of Education with the terms of their consent decree.
Based on the work involved in this case, I consider the billable hours submitted by the plaintiffs' attorneys to be appropriate given the complexity of this case and the time it took to achieve successful results:
Elizabeth L. Schneider, Esq. 0907 1,266 hours
Bryan D. Hetherington, Esq. 0907 595.6 hours
1460

*1460 Betsy Broadman Swan, Esq. 0907 92.8 hours
In calculating the appropriate hourly rate for attorneys' fees under the Handicapped Children Protection Act, I take note of the fact that the Act specifically directs that the award be for reasonable attorneys' fees "based on rates prevailing in the community in which the action or proceeding arose." Plaintiffs' attorneys in this case are all employees of non-profit law firms, branches of the Legal Services Corporation. The Second Circuit Court of Appeals has warned of the danger of "windfall" awards to non-profit law offices, but concluded that it was proper for District Courts "to award fees to non-profit law offices at billing rates of comparable attorneys in the general run of cases so long as the billing rates are not so high that their use risks significant windfalls ..." New York Association for Retarded Children v. Carey, 711 F.2d 1136, 1151 (2d Cir.1983). The legislative history of the Handicapped Children Protection Act suggests that the intent of Congress was to allow non-profit law firms to recover attorneys' fees at the same hourly rate as profit making law firms. The original Senate version of the bill contained a ceiling on awards of attorneys' fees to publicly funded legal services organizations, but no ceiling on the award to private attorneys. The ceiling on awards to public interest attorneys was deleted from the bill by the House/Senate Conference Committee. 132 Cong.Rec. H4527.
Plaintiffs have requested an hourly rate of $100 per hour for Ms. Swan and $105 per hour for both Mr. Hetherington and Ms. Schneider. These are rates which these particular attorneys have been awarded either under 42 U.S.C. § 1988 or under the Equal Access to Justice Act, both by this Court and by the other Federal District Courts in the Western District of New York. I conclude that these requested rates are reasonable and they certainly are within the "rates prevailing in the community."
Plaintiffs' attorneys will continue during the 1986-87 school year to be involved in the monitoring of the defendant Board of Education as provided in the consent decree, supra. Mr. Hetherington and Ms. Schneider will receive the same hourly rate for this work and they should, at the end of the school year, submit to this Court for approval an affidavit of the hours spent in monitoring the local school board's compliance with the consent decree.
CONCLUSION
For the above stated reasons, plaintiffs' motion for attorneys' fees as against the defendant State Department of Education and Commissioner Gordon Ambach is denied. Plaintiffs' motion for attorneys' fees as against the defendant Board of Education of the Rochester City School District is granted. The requests of defendants for discovery and an evidentiary hearing on the amount of attorneys' fees is denied. Plaintiffs' attorneys are awarded attorneys' fees for the following hours and rates:
Elizabeth L. Schneider, Esq. 0907 1,266 hours at $105 per hour = $132,930.00
Bryan D. Hetherington, Esq. 0907 595 hours at $105 per hour = $62,538.00
Betsy Broadman Swan, Esq. 0907 92.8 hours at $100 per hour = $9,280.00
for a total attorneys' fee award to plaintiffs' counsel of $204,748.00. Additionally, plaintiffs' attorneys will be awarded fees for the time spent monitoring the consent judgment during the 1986-87 school year at the rate of $105 per hour; after they have submitted their billable hours to this Court for approval
ALL OF THE ABOVE IS SO ORDERED.
[1] The City Council thereafter voted $3,000,000.00 to implement the plan.
[2] See, Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.C.1972) and Pennsylvania Association for Retarded Children v. Commonwealth, 334 F.Supp. 1257 (E.D.Pa. 1971) and 343 F.Supp. 279 (1972).
[3] In fact, the Court recognized that the same complaint of a Constitutional violation might conceivably find relief based either on the Constitution itself (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619), pursuant to 42 U.S.C. § 1983, or pursuant to the EHA.

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 830 F.2d 444 (1987)
J.G., by his mother and next friend, MRS. G.; M.W., by her mother and next friend, Mrs. W.; A.M., by his mother and next friend, Mrs. M.; and K.M., by her mother and next friend, Mrs. M.; on behalf of themselves
and all persons similarly situated, Plaintiffs-Appellees, v.
The BOARD OF EDUCATION OF the ROCHESTER CITY SCHOOL DISTRICT; John Delvecchio, Archie Curry, Frank Willis, Irene Frusci, Josephine Genovese, Karen Grella, and Gary Smith, individually and in their official capacities as members of the Board of Education of the Rochester City School District; Laval M. Wilson, in his official capacity
as Superintendent of the Rochester City Schools; Bernard S. Greenberger, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; Robert Lays, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; Joseph Salemi, individually and in his official capacity as Assistant Director of
the Department of Special Education of the Rochester City Schools, Defendants-Appellants, and
The New York State Department of Education, and Gordon M. Ambach, in his official capacity as Commissioner of the New York State Education Department, Defendants.
No. 998, Docket 86-9083.
United States Court of Appeals, Second Circuit.
Argued April 13, 1987. Decided September 29, 1987.
445*445 Adam D. Kaufman, Rochester, N.Y., for defendants-appellants.
Elizabeth L. Schneider, Monroe County Legal Assistance Corp., Rochester, N.Y. (Bryan D. Hetherington, Rochester, N.Y., of counsel), for plaintiffs-appellees.
Before VAN GRAAFEILAND, PRATT and MINER, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the Western District of New York (Telesca, J.) awarding attorneys' fees to appellees in a class action brought to compel compliance with federal and State laws governing the identification, evaluation and placement of handicapped students, after the action was settled favorably to appellees. The district court's decision directing the entry of judgment is reported in 648 F.Supp. at 1452.

We affirm the awarding of fees, but direct that the amount thereof be reduced to account for the time of appellees' lawyers attributable to appellees' claim against the State defendants, who did not participate in the settlement.
This action deals primarily with the Education of the Handicapped Act, 20 U.S.C. § 1401 et seq., whose evolution and major provisions are summarized in Board of Education v. Rowley, 458 U.S. 176, 179-84, 102 S.Ct. 3034, 3037-39, 73 L.Ed.2d 690 (1982). A detailed analysis of the Act's provisions is contained in the Regulations of the Offices of the Department of Education, 34 C.F.R. Pt. 300 and App. C.
A key mechanism in the functioning of the Act is the "Individualized Education Program" (IEP), 20 U.S.C. § 1401(19). This Program contemplates a meeting between parents and school personnel for the purpose of jointly deciding what a handicapped child's needs are, what services will be provided to meet those needs, and what the anticipated outcome will be, together with a written record of the decisions made at the meeting. 34 C.F.R. Pt. 300, App. C § 60. Since the IEP is intended as a guideline for the educational processes to be followed in the case of the student involved, its formulation is surrounded by due process safeguards, including adequate notice, appropriate hearings, and the right of appeal. 20 U.S.C. § 1415; 34 C.F.R. Subpt. E §§ 300.500-300.514. Indeed, the statute and the Department of Education regulations specifically provide for a "due process" hearing if proper identification, evaluation or educational placement procedures are not conducted. 20 U.S.C. § 1415(b)(2); 34 C.F.R. § 300.506; see also id. Pt. 300, App. C §§ 11, 32, 35.
Although section 1415 has been described as a "bill of rights for parents", Vander Malle v. Ambach, 673 F.2d 49, 52 (2d Cir.1982) (quoting Stemple v. Board of Educ., 623 F.2d 893, 898 (4th Cir.1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981)), prior to 1986 it contained no provision for the discretionary payment of attorneys' fees. In Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court held that, 446*446 although the successful plaintiffs had included with their section 1415 claim causes of action under the Civil Rights Act, 42 U.S.C. § 1983, and the Rehabilitation Act of 1973, 29 U.S.C. § 794, both of which permit awards of attorneys' fees, see 42 U.S.C. § 1988 and 29 U.S.C. § 794a(b), the Education of the Handicapped Act was the "exclusive avenue" through which the plaintiffs could pursue their claim and their request for attorneys' fees. Id. at 1013. Congress promptly amended section 1415 by permitting awards for fees in actions under that section, see subsection (e), and removing the restrictions imposed in the Smith opinion against proceeding under other statutes protecting the rights of handicapped children, see subsection (f). This removal of restrictions was not without its limitations, however. Subsection (f) provides that before the filing of a civil action under other laws seeking relief that also is available under subchapter II of the Act, 20 U.S.C. §§ 1411-1420, the procedures under subsections (b)(2) and (c) of § 1415, which provide for a hearing and administrative appeal, shall be exhausted to the same extent as would be required had the action been brought under that subchapter.
Appellants contend that the several subsections of section 1415, when read together, create an exhaustion of the administrative remedies requirement. They argue that an action under the Act can be maintained only to challenge a final decision of a State administrative agency relating to the evaluation or placement of a specific handicapped student. They say that, since there has been no such exhaustion in the instant case, subsection (f) precludes

the awarding of attorneys' fees. Relying largely on legislative history, which we need not repeat herein, the district court rejected that argument. 648 F.Supp. at 1456-58. Under the facts of the instant case, the district court was correct.
As found by District Judge Elfvin to whom this case was assigned first, appellees' claims are systemic in that the wrongdoing complained of is inherent in the program for the education of handicapped children that appellants adopted and is not directed against any specific child. 648 F.Supp. at 1457. The alleged systemic wrongs that appellees challenged are summarized in their brief as follows:
1. Failing to evaluate students suspected of having a handicapping condition and to classify those students at a Committee on the Handicapped (COH) meeting within 30 days after a referral of the child to the COH.
2. Placing students in special education programs without either performing the evaluations required by law or developing Individualized Education Programs (IEPs) with parental participation as required by law.
3. Failing to give parents notice containing information about the testing to be performed on their child, their procedural rights in the COH process and the recommendations and reasoning of the COH.
4. Obtaining parental consent for special education placements prior to required testing of the child and prior to notifying parents of their procedural rights.
5. Failing to keep students in their current educational placement pending review by the COH and refusing to place newly enrolling handicapped students in school pending COH review.
6. Failing to place students in special education programs within a reasonable time after a COH recommendation and failing to develop a sufficient number of alternative placements to meet the educational needs of handicapped students.
7. Failing to provide handicapped students with an equal opportunity for participation in academic, nonacademic and extracurricular activities.
8. Failing to develop IEPs for handicapped students with the required parental involvement and placing students in special education programs before IEPs were developed.
9. Failing to inform parents of their right to present complaints and obtain 447*447 impartial hearings and of how to obtain impartial hearings.
10. Failing to inform parents of the availability of residential placements for severely handicapped students and failing to make such placements available.
There can be little dispute that claims of generalized violations such as these lend themselves well to class action treatment. See, e.g., Jose P. v. Ambach, 669 F.2d 865, 86768 (2d Cir.1982); Battle v. Pennsylvania, 629 F.2d 269 (3d Cir.1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981). It is equally clear that where, as here, plaintiffs assert the deprivation of their due process rights to proper notice and hearing, they cannot be faulted for the lack of an administrative hearing and appeal. Quackenbush v. Johnson

City School Dist., 716 F.2d 141, 147-48 (2d Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1426, 79 L.Ed.2d 750 (1984). Exhaustion of administrative remedies is not required if adequate remedies are not reasonably available. Jose P. v. Ambach, supra, 669 F.2d at 869. The same is true where the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process. McNeese v. Board of Educ., 373 U.S. 668, 674-75, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622 (1963); Vander Malle v. Ambach, supra, 673 F.2d at 52; Riley v. Ambach, 668 F.2d 635, 640-41 (2d Cir.1981).
An examination of the seventy-two page stipulation of settlement, the seventy-five page appendix of new forms and procedures required thereunder, and the district court's findings of fact and conclusions of law approving the settlement, discloses that this litigation went far beyond and accomplished much more than what could have been accomplished through administrative hearings. In the words of Judge Telesca, "[t]he proposed consent judgment provides the class with the relief sought in the first ten claims for relief in that the City defendants have developed plans to correct all the violations of law alleged by the complaint." It fell within the well established exceptions to the doctrine of exhaustion of administrative remedies.
We agree therefore that appellees were entitled to an award of attorneys' fees. However, the decisions of this and other courts suggest that the award should be made under the Civil Rights Act, 42 U.S.C. §§ 1983 and 1988. See Quackenbush v. Johnson City, supra, 716 F.2d at 147-49; Hastings v. Maine-Endwell Cent. School Dist., 676 F.2d 893, 897 (2d Cir.1982); Manecke v. School Board, 762 F.2d 912, 917-21 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986); Monahan v. Nebraska, 687 F.2d 1164, 1172 (8th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983); Catlin v. Ambach, 644 F.Supp. 161, 164-65 (N.D.N.Y.1986), vacated on other grounds, 820 F.2d 588 (2d Cir.1987); Blazejewski v. Board of Educ., 599 F.Supp. 975, 97780 (W.D.N.Y.1985). This avoids the troublesome question whether the right to bring a direct cause of action, which does not follow the administrative hearing and appeal route, can be found by implication in section 1415. Since appellees sought relief under section 1983 as well as the Education of the Handicapped Act, appellants will suffer no prejudice from an order directing that the judgment below be amended to provide that the award of attorneys' fees is made under 42 U.S.C. § 1988. For the reasons above stated, it is so ordered.
It appears to be conceded, however, that a portion of the attorneys' time for which an award was made was devoted to appellees' claim against the State, which was discontinued. Payment for those hours should not have been included in the award against the City of Rochester. Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1125 (9th Cir.1981); Williamsburg Fair Hous. Comm. v. Ross-Rodney Hous. Corp., 599 F.Supp. 509, 513-14 (S.D.N.Y.1984). Although appellees contend, not without some basis, that the question of apportionment was not squarely raised in the court below, we think that in simple justice the City of Rochester should not be required to pay for the processing of appellees' claim against the 448*448 State of New York. Accordingly, we remand to the district court for a reduction in its award by an amount that the court finds to be allocable to the prosecution of appellees' claim against the State. Because of the good faith evidenced by the attorneys to date and Judge Telesca's well recognized ability in the field of conciliation, we are reasonably confident that the parties will be able to agree upon what appears to be a relatively minor adjustment.

We affirm that part of the district court's judgment which directs the payment of attorneys' fees, but order that the award be made under 42 U.S.C. § 1988 and that it be reduced by such amount as the district court shall find to be allocable to the time spent in processing appellees' claim against the State of New York.
MINER, Circuit Judge, concurring:
If the deficiencies in the Rochester School District program for the education of handicapped children alleged by appellees were subject to correction through the administrative process, it seems clear that exhaustion of administrative remedies would be a prerequisite to any claim for attorneys' fees. Section 1415(e)(4)(B) allows an award of fees to a prevailing party in an action "brought under this subsection." The only actions referred to in subsection (e) are those in which administrative remedies, established under the provisions of subsections (b) and (c), have been exhausted. See 20 U.S.C. § 1415(e)(1), (2). The same exhaustion requirements apply to actions seeking relief for handicapped children under 42 U.S.C. § 1983 and counsel fees under 42 U.S.C. § 1988. See 20 U.S.C. § 1415(f).
An examination of the record convinces me that all the challenges mounted by the individual appellees here could have been raised by them in separate administrative proceedings. See Riley v. Ambach, 668 F.2d 635, 641-42 (2d Cir.1981). We have excused the failure to exhaust administrative remedies only under very limited circumstances, none pertinent here. See, e.g., Quackenbush v. Johnson City School Dist., 716 F.2d 141, 148 (2d Cir.1983) (school district alleged to have policy denying special education for financial reasons); Vander Malle v. Ambach, 673 F.2d 49, 52 (2d Cir.1982) (no possibility of favorable administrative decision); Jose P. v. Ambach, 669 F.2d 865, 869 (2d Cir.1982) (Commissioner of Education conceded inability to process appeals expeditiously).
In accordance with the foregoing, I would be constrained to dissent from the award of counsel fees in this case because of the failure of appellees to exhaust administrative remedies but for the unchallenged determination of Judge Elfvin excusing exhaustion because "systemic violations" were charged, Memorandum and Order dated March 30, 1982, Joint App. at 304-05. That determination was made in the early stages of the action in response to a motion for dismissal made by appellants. Rather than seeking review of the order in this court by certification pursuant to 28 U.S.C. § 1292(b) or by litigating the matter to conclusion and pursuing the question on direct appeal from the final judgment, 28 U.S.C. § 1291, appellants entered into an extensive stipulation of settlement. They thereby agreed to provide most of the relief sought by appellees and, by implication, conceded their exhaustion argument, admitted that administrative review would be futile, and acknowledged that this lawsuit was proper.
Since I agree with the majority that there is ample authority for the award of counsel fees to the prevailing party when direct court action is the only means possible to redress wrongs violative of the statutory scheme providing for the education of handicapped children, I have no alternative but to concur in this opinion.