I.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---X

RAY M., a minor under the age 21 years, by his mother JUANA D.; JACKEY S., a minor under the age 21 years, by his mother YIN JIANG S.; MIGUEL F., a minor under the age 21 years, by his mother ANATALIA F.; JOSE P., a minor under the age 21 years, by his mother
EVELYN Q.; KATIE B., a minor under
the age 21 years, by her mother CARRIE
B.; ANGEL c., a minor under the age 21
years, by his mother MARGARITA V.; BENJAMIN L., a minor under the age 21 years, by his mother ANGELA L.: individually and on behalf of themselves and all other pers.ons similarly situated,
Plaintiffs,

-against-

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; RAMON CORTINES, Chancellor of the Board of Education of the City School District of the City of New York; HOWARD S. TAMES, Executive Director of the Division of Special Education of the Board of Education of the City School District of the City of New York; NEW YORK STATE EDUCATION DEPARTMENT; THOMAS SOBOL, Commissioner of Education of the State of New York; NEW YORK CITY TRANSPORTATION DEPARTMENT; and MARIO M. CUOMO, Governor of the state of New York,
Def.e.ndants.

----- - ---- - - - - - - - - --X

CIVIL NO.
CLASS ACTION COMPLAINT

I
PRELIMINARY STATEMENT 1. Plaintiffs, preschool children with disabilities who reside in New York City, aged three through five, bring this class action against, the Board of Education of the City School District of the City of New York, Chancellor Ramon Cortines, Division of Special Education Executive Director Howard Tames, the New York State Education Department, New York State Education Commissioner Thomas Sobol, the New York city Department of Transportation, and Governor Cuomo. All individuals are sued in their official capacity. Plaintiffs seek declaratory and injunctive relief to redress defendants' violations of plaintiffs' right to a free appropriate preschool public education in the least restrictive environment that meets their individual needs, including language needs, as guaranteed by federal and state statutes and the regulations promulgated thereunder.
II
JURISDICTION 2. Jurisdiction is conferred upon this Court by the Individuals with Disabilities Education ACT ("IDEA"), 20 u.s.c. § 1400-1485, 42 u.s.c. § 1983, and 28 u.s.c. §§ 1331 and 1343(a) (3) and (4). Plaintiffs' claims for declaratory relief are authorized by 28 u.s.c. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.
2

3. This Court has supplemental jurisdiction
pursuant to 28 u.s.c. § 1367 over plaintiffs' claims of
violations of the New York Education Law §§ 4401-4410 guaranteeing plaintiffs' right to a free appropriate preschool public education in the least restrictive environment.
III
PARTIES Named Plaintiffs 4. Plaintiff RAY M., age four, lives in New York City. Ray.M. is Latino. He speaks Spanish and is limited English proficient (hereinafter referred to as a "LEP'' child) . The consent for evaluation form for Ray M. was completed on February 1993. In April 1993, Ray M. was determined to need bilingual speech therapy services, but defendants have not yet provided these services to him. Ray M. will age-out of the preschool program in September 1994.
5. Plaintiff JACKEY s., age five, resides in New York City. Jackey s. is Chinese and is a Cantonese-speaking LEP child. The consent for evaluation form for Jackey s.
was completed in February 1993. In May 1993, he was recommended and approved for bilingual speech therapy services, but defendants have not yet provided him with
appropriate bilingual speech therapy services. Jackey s.
will age-out of the preschool program in September 1994. 6. Plaintiff MIGUEL F., age five, lives in New
York City. Miguel F. is Latino and is a Spanish-speaking
3

LEP child. The consent for evaluation form for Miguel F.
(
was completed in October 1993 and, in December 1993, Miguel F. was determined to need full-time bilingual preschool special education services and intensive bilingual speech therapy. Defendants, however, have not yet provided the authorized services. Miguel F. will age-out of the preschool program in September 1994.
7. Plaintiff JOSE P., age four, lives in New York city. The consent for evaluation form for Jose P. was completed in October 1993 and, in January 1994, Jose P. was approved for speech and language therapy twice a week, individual counseling twice a week, and special education itinerant services. Jose P. did not start speech therapy until the first week in March 1994, and he has yet to receive counseling services. Jose P. will age-out of the preschool program in September 1994.
8. Plaintiff KATIE B., age three, resides in New York City. The consent for evaluation form for Katie B. was completed in February 1993. In May 1993, Katie B. was determined to need speech therapy, physical therapy and counseling. In July 1993, Katie B. was placed in a selfcontained special education program, even though the CPSE, in concert with Katie B.'s parents, agreed that Katie B. should have been placed in an integrated program. Further, Katie B. did not receive physical therapy and counseling services until October 1993.
l
4

9. Plaintiff ANGEL C., age three, resides in New
York City. The consent for evaluation form for Angel c. was
completed in August 1993 and, in October 1993, Angel C. was determined by the CPSE to need speech therapy services twice
a week. Angel c. has not yet received these approved
special education services. 10. Plaintiff BENJAMIN L., age three, resides in
New York City. The consent for evaluation form for Benjamin L. was signed on or about January 11, 1993. In May 1993, Benjamin L. was determined to need a full time center-based preschool program and, because of his fragile condition, he was authorized to receive transportation to and from the preschool program in an ambulette. Benjamin L., however, did not receive transportation services until September 1993 and in February 1994, the transportation services were discontinued, depriving him of his educational and related services.
Defendants 11. Defendant BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK ("Board of Education") is responsible for the municipal public education system, including special education services. The Board of Education receives federal funds under IDEA and must therefore comply with the requirements of IDEA. The Board of Education was at all relevant times acting under color of state law.
5

12. Defendant RAMON CORTINES is the Chancellor of the defendant Board of Education. He is responsible for the general management and supervision of the municipal public education system, including special education services. Chancellor Cortines was at all relevant times acting under color of state law.
13. Defendant HOWARD s. TAMES is the Executive
Director of the Division of Special Education of the defendant Board of Education. He is responsible for the management and supervision of the provision of special education services, including evaluations and recommendations for, and the provision of, special education services. Director Tames was at all relevant times acting under color of state law.
14. Defendant NEW YORK STATE EDUCATION DEPARTMENT ("State Education Department") is a recipient of federal funds under IDEA and is mandated by IDEA to ensure the administration of special education and related services to all children with disabilities between the ages of three and twenty-one who reside in the State of New York, including the disbursement of IDEA funds to local school districts. All allegations herein against the State Education Department relate to conduct affecting students in the New York City Public Schools. The State Education Department was at all relevant times acting under color of state law.
15. Defendant THOMAS SOBOL is the Commissioner of Education of the State of New York. Having been appointed
6

by the Board of Regents of the University of the State of New York, he is the chief administrative officer of the defendant State Education Department and, in that capacity, is responsible for the general management and supervision of the state public education system, including special education services. He is also responsible for securing the lawful exercise of all authority delegated to defendant Board of Education. Commissioner Sobol was at all relevant times acting under color of state law.
16. Defendant NEW YORK CITY DEPARTMENT OF TRANSPORTATION ("NYCDOT") has been designated by the municipality of New York City pursuant to New York State Education Law § 4410(8) as responsible for ensuring the appropriate transportation of children aged three through five requiring transportation to benefit from special education services. NYCDOT was at all relevant times acting under color of state law.
17. Defendant MARIO M. CUOMO, Governor of the State of New York, is responsible for enforcing the laws of the state of New York, including the New York State Education Law. Governor Cuomo was at all relevant times ~cting under color of state law.
18. All persons named as defendants are employed within the State of New York and are sued in their official capacities.
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IV
CLASS ACTION ALLEGATIONS
19. Plaintiffs bring this action for declaratory and injunctive relief on behalf of themselves and all other similarly situated preschool children with disabilities. Plaintiffs' class consists of all preschool students with disabilities living in New York city, aged three through five, who are entitled to a free appropriate public education in the least restrictive environment, but who were not, have not been, or will not be timely andjor appropriately evaluated, recommended for, and/or provided appropriate special education services in the least restrictive environment that meet their individual needs, including language needs.
20. Plaintiffs meet all the prerequisites to maintenance of a class action set forth in Rules 23(a) and 23(b)(2}:
(a} The class is so numerous that joinder of all members is impracticable. There are hundreds of preschool students in New York city who are disabled, and who did not, have not, or will not receive timely, appropriate evaluations, recommendations, and/or preschool special education services in the least :estrictive environment that meet their individual needs, including language needs. The exact number of preschool students with disabilities is unknown to plaintiffs, but should be known to defendants. Moreover, the class includes the hundreds of children with
8

disabilities who in the near future will be subject to defendants' policies that systematically violate federal and state statutory requirements during the short time span in which these preschool special education services must be provided.

(b) There are questions of law and fact common to the class, such as whether defendants' repeated and continuing failure to timely and appropriately evaluate, recommend, and provide plaintiffs with appropriate preschool special education services in the least restrictive environment that meet their individual needs, including language needs, denies plaintiffs a free appropriate public education.

(c) The claims of the representative plaintiffs

are typical of the claims of the class. Each named

plaintiff has been determined to have a disability under

IDEA§ 1401(a) (1) (A); each named plaintiff has been

recommended and approved for preschool special education

services; and each named plaintiff has not been provided

timely and/or appropriate preschool special education

services. In addition, the named plaintiffs' claims arise

from the same course of conduct by defendants

the

repeated and continued failure to provide timely andjor

appropriate special education services.

(d) Plaintiffs will fairly and adequately protect the interests of the class. As preschool students with

disabilities, the named plaintiffs have a personal interest

9

(

in issues of public education for preschool students with

disabilities in New York City, and counsel for plaintiffs

knows of no conflicts of interest among class members.

Plaintiffs also are represented by counsel experienced in

litigation concerning civil rights in general and education

rights in particular.

(e) Defendants have acted, with regard to

preschool public education, on grounds generally applicable

to the plaintiff class, thereby making appropriate final

preliminary injunctive relief or corresponding declaratory

relief with respect to the class as a whole.

21. In addition to meeting the requirements of

Rule 23, a class action is necessary in this case to avoid

problems of mootness during the course of litigation and to

insure future enforceability of judgment for plaintiffs.

22. Because of the extremely short time-frame

during which plaintiffs are entitled to receive preschool

special education services, named plaintiffs may age-out of

the preschool population before this litigation is

completed. Additionally, defendants may provide appropriate preschool services to all named plaintiffs, thus mooting

their individual cases, yet continue with a pattern and

practice that consistently violates the law -- namely,

excessive delay and/or inappropriate, overly-restrictive

policies and practices in evaluation, recommendation, and

provision of special education services to children with

disabilities.

10

v

STATUTORY SCHEME

Individuals with Disabilities Education Act 23. The Individuals with Disabilities Education
Act ("IDEA"), 20 u.s.c. §§ 1400-1485, and the regulations
promulgated thereunder, provide children with disabilities a substantive right to a "free appropriate public education," in the least restrictive environment, in those states that
receive federal assistance provided under IDEA. 20 u.s.c.
§ 1400(c); 34 C.F.R. §§ 300.550 - 300.556. 24. The State Education Department and the Board
of Education receive funds appropriated under IDEA and, therefore, are subject to its requirements. See 20 U.S.C. § 1419 (b) •

25. IDEA defines "children with disabilities" as

children with "mental retardation, hearing impairments

including deafness, speech or language impairments, visual

impairments including blindness, serious emotional

disturbance, orthopedic impairments, autism, traumatic brain

injury, other health impairments, or specific learning

disabilities; and who, by reason thereof, need special

education and related services." 20 u.s.c. § 140l(a) (1) (A).

26. IDEA defines "free appropriate public

education" to mean "special education and related services

that .

have been provided at public expense, under

public supervision and direction, and without charge" and

that "include an appropriate preschool, elementary, or

11

secondary school education in the State involved ..

provided in conformity with the individualized education

program . .

" 20 U.S.C. § 1401(a) (18) (emphasis added).

27. IDEA defines "special education" as

"specially designed instruction, at no cost to parents or

guardians, to meet the unique needs of a child with a

disability, including instruction conducted in the

classroom, in the home, in hospitals and institutions, and

in other settings." 20 U.S.C. § 1401(a) (16) (A).

28. IDEA defines "related services" as

"transportation, and such developmental, corrective, and

other supportive services (including speech pathology and

audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation,

social work services, counseling services, including

rehabilitation counseling; and medical services ..• ) as

may be required to assist a child with a disability to

benefit from special education, and includes the early

identification and assessment of disabling conditions in
children." 20 u.s.c. § 1401(a) (17).

29. The term "individualized education program"

includes, inter alia, "a statement of the specific

educational services to be provided to such child, and the extent to which such child will be able to participate in

regular education programs . . . . " 20 u.s.c.

§ 1401(a) (20).

12

30. In order to receive federal assistance under IDEA, each State must develop a plan that assures a free appropriate public education to all children with

disabilities,' aged three through twenty-one. 20 u.s.c.

§ 1412{2) (B). The plan must, inter alia, delineate a comprehensive system of personnel development in connection with the program. The plan must include a description of the procedures and activities the State will undertake to ensure an adequate supply of qualified special education and related services personnel and a description of the procedures and activities the State will undertake to ensure that all personnel are appropriately and adequately
prepared. 20 u.s.c. § 1413(a) (3) (A) and (B).

(

31. In connection with that plan, the State must

establish "procedures to assure that testing and evaluation

materials and procedures utilized for the purposes of

evaluation and placement of children with disabilities will

be selected and administered so as not to be racially or

culturally discriminatory" and that the "materials or

procedures shall be provided and administered in the child's

native language or mode of communication . . . . " 20 u.s.c.

§ 1412 (5) (C).

32. The State must also establish procedures to assure that, to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular

13

(

educational environment occurs only when the nature or

severity of the disability is such that education in regular

classes with the use of supplementary aids and services

cannot be achieved satisfactorily. 34 C.F.R. § 300.550.

33. The State plan must ensure that children with

disabilities in private schools and facilities will be

provided special education and related services at no cost

to their parents, if such children are placed in or referred

to such schools as the means of carrying out the

requirements of IDEA. 20 u.s.c. § 1413(a) (4) (B) (i).

34. The State must also demonstrate that the

State educational agency is responsible for assuring that

these requirements are carried out by the State or local

{
(

education agency. 20 u.s.c. § 1412(6).

New York Education Law

35. New York Education Law §§ 4401-4410 require
the State and the City of New York to provide a free appropriate preschool special education, in the least restrictive environment, for children with disabilities. Regulations promulgated by the Commissioner of Education, pursuant to New York State Education Law §§ 4401-4410 and in accordance with the requirements of IDEA, specify methods, procedures and criteria, with accompanying timetables, to
ensure that each child with a disability is provided a free
appropriate public education. 8 N.Y.C.R.R. §§ 200.1 200.20.

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36. The New York Education Law further requires that a Committee on Preschool Special Education ("CPSE") be established in each New York City school district to coordinate the process of assuring that preschool children with disabilities residing in its district receive a free appropriate public education in the least restrictive environment. N.Y.E.L. §§ 4410(3), (4), (5); 8 N.Y.C.R.R. § 200.16.
37. Upon receipt of a written referral indicating that a student is suspected of having an educationally disabling condition, New York Education Law requires the CPSE to immediately issue the parent a Notice of Preschool Referral, a Notice of Parental Due Process Rights in the parent's dominant or preferred language, the approved list of evaluation sites/preschool providers, and the Consent for Initial Preschool Evaluation. (Parent or legal guardian will hereinafter be referred to as "parent"). If the parent consents to have the student evaluated, sjhe must choose an evaluation site from the official list of approved evaluators. N.Y.E.L. § 4410(4); 8 N.Y.C.R.R. § 200.16(b}. currently in New York, only preschool program providers are approved to conduct evaluations. N.Y.E.L. §§ 4410(1} (a) and (9)(b}; 8 N.Y.C.R.R. § 200.16(g}(2}(i}.
38. The New York Education law further requires that within 30 school days of the parent's consent, the evaluation site must conclude a multidisciplinary assessment and develop an Individualized Education Plan ("IEP"}
15

identifying appropriate services for the student that meet the student's individual needs, and address the manner in which the preschool student can be provided with instruction in the least restrictive environment. N.Y.E.L. § 4410(4). Furthermore, the school districts must ensure that tests and other assessment procedures are administered in the student's dominant language and so as not to be racially or culturally discriminatory. 8 N.Y.C.R.R. §§ 200.4(b) (14), 200 . 1 (ee) , 200. 16 (c) (2) .

39. The New York Education Law further requires

that the CPSE schedule a Preschool Special Education Review

Meeting to be held within 30 school days of the original

parental consent, N.Y.E.L. § 4410(3); 8 N.Y.C.R.R.

(

§ 200.16(d), and that the CPSE provide a written report of

the recommendation, including the results of the evaluation,

to the Board of Education, the parent and the municipality

regarding the eligibility for services and recommended

services, including the extent to which the preschool

student will participate in programs in the least

restrictive environment appropriate to the student, within

30 school days of the date of receipt of the parental

consent. 8 N.Y.C.R.R. § 200.16(d).

40. The New York Education Law and Commissioner's Regulations define available service options to include special classes; in-state residential programs; or related services andjor itinerant services of a certified special education teacher to be provided at an approved or licensed

16

prekindergarten or head start program, the work site of the provider, the student's home, a hospital, a state facility, or a child care location. N.Y.E.L. §§ 4410(1) (j), (k), 4410(5) (b) i 8 N.Y.C.R.R. § 200.16(h).

41. The New York Education Law further requires

that, upon receipt of the recommendation, the Board of

Education arrange for the preschool student with a

disability to receive the recommended programs or services

no later than 30 days from the recommendation of the CPSE.

N.Y.E.L. §§ 4410(5) (b), (e); 8 N.Y.C.R.R. § 200.16(e) (i).

42. The New York Education Law provides that if a

parent disagrees with the CPSE's recommendation, the parent

can request a hearing before an Impartial Hearing Officer

(

("IHO"). N.Y.E.L. § 4410(7). Once the hearing has been

conducted, the IHO must render a decision within 30 days

after receipt by the Board of Education of a request for a

hearing or after the initiation of such a hearing. If the

parent disagrees with the decision of the IHO, sjhe may

appeal to the New York state Review Office, and that state

agency must render a decision not later than 30 days after

receipt of the request for review. N.Y.E.L.

§§ 4410 (7) (b)' (d).

43. The New York Education Law provides that the municipality in which a preschool child resides must provide, either directly or by contract, suitable transportation, beginning with the first day of delivery of special education services, up to 50 miles to and from

17

special services or programs. The municipality of a city

with a population of one million or more may delegate the

authority to provide such transportation to board of

education. N.Y.E.L. § 4410(8).

Title VI of the 1964 Civil Rights Act

44. Title VI of the 1964 Civil Rights Act ("Title

VI"), 42 U.S.C. § 2000d, provides that:

no person in the United States shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

45. The federal regulations implementing Title VI

prohibit a State from directly or through contractual or

other arrangements "utiliz[ing] criteria or methods of

administration which have the effect of subjecting

individuals to discrimination because of their race, color

or national origin, or have the effect of defeating or

substantially impairing accomplishment of the objectives of

the program .

" 45 C.F.R. § 80.3 (b) (2).

46. Title VI and its implementing regulations,

therefore, require defendants to provide bilingual-

bicultural evaluations and preschool special education

services to Latino, Asian and other minority children.

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42 u.s.c. § 1983 47. 42 u.s.c. §198 ("Section 1983 11 provides in
relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

48. Section 1983 provides a federal cause of

action for violations of federal rights, and Section 1983

may be used to remedy constitutional and federal statutory

(

violations by state agents.

VI

FACTUAL BACKGROUND Systemic Violations in the Provision of Special Education Services 49. Plaintiff class members are entitled to a free appropriate preschool public education in the least restrictive environment that meet their individual needs, including language needs. However, as a result of defendants' pervasive, entrenched patterns and practices, hundreds of preschool children were, have been, or will be, denied such special education services. Some plaintiffs have not received any of the special education services. Other plaintiffs have or will receive: (i) special education

19

services only after considerable delay; (ii) inappropriate

special education services; andjor (iii) special education

services in the most restrictive environment. These

systemic, pervasive violations by defendants have

irreparably harmed named plaintiffs and will continue to

irreparably harm present and future class plaintiffs.

Delays in Evaluation and Provision of Services

50. As required by§ 1413(a) (11) of IDEA, the

State Education Department's Office for Special Education

Services has conducted compliance audits of CPSE practices.

Upon information and belief, these audits have uncovered

systemic procedural defects, lengthy delays, and

inappropriate recommendations which have resulted in the

(

failure of defendants to provide plaintiffs with a free

appropriate public education in the least restrictive

environment that meet their individual needs, including

language needs. 1

(a) Numerous preschool students are waiting to be evaluated well in excess of the state-mandated maximum period of 30 days. The actual delay in many instances is considerably longer due to defendants' pattern and practice of requiring the parent to find first a proper evaluation

1 Plaintiffs allege certain facts based upon information and belief. Plaintiffs believe and hereby allege that each fact so identified is likely to have evidentiary support after plaintiffs are given a reasonable opportunity for further investigation through discovery.
20

site before having the parent sign the consent for evaluation form.
(b) Hundreds of preschool students have been approved for special education services, but are waiting to receive such services. The majority of these students have been waiting to be placed well in excess of the statemandated period of 30 days.
51. Representatives of the State Education Department are aware that the Board of Education has failed to meet the mandated time-lines related to evaluations and provision of services that meet the students' language needs and that are in the least restrictive environment. Despite awareness of these failures, the State Education Department has not compelled the Board of Education to comply with the applicable statutory requirements.
52. Currently, New York State statutory restrictions allow only preschool program providers to conduct evaluations. N.Y.E.L. §§ 4410(1) (a) and (9) (b). This limitation unnecessarily restricts the availability of qualified evaluators and also creates an inherent conflict of interest for program providers. As a result, many students wait in excess of the state-mandated 30 days to be evaluated, and/or are not evaluated by a bilingual clinician where necessary, andjor are recommended for self-contained, segregated, center-based programs -- often the program of the provider performing the evaluation -- when such
21

(

restrictive settings are not necessary to meet the

individual needs, including language needs, of the child.

LEP Students

53. Defendants' systemic, pervasive violations are more acute for students who are LEP:

(a) A disproportionate number of Latino, Asian and other minority students who are LEP are and have been waiting for evaluations in excess of the state-mandated 30 days. This violates Title VI and its implementing
regulations. 42 u.s.c. § 2000d; 45 C.F.R. § 80.3(b) (2).
This disproportionate violation with respect to Latino, Asian and other minority students who are LEP has a long history, and will continue in the future.

(b) Numerous preschool students who are LEP can be evaluated appropriately only through the use of bilingual personnel. Because of state legislation limiting potential evaluation sites, the resources presently utilized by defendants are not sufficient to meet the particular needs of the plaintiff class students who are LEP. As a result, numerous preschool students who are LEP are being evaluated inappropriately through the use of monolingual clinicians, or through the use of untrained translators, in violation of IDEA and state law regulations that require the evaluation
to be conducted in the student's native language. 20 u.s.c.
§ 1412(5) (C), 8 N.Y.C.R.R. §§ 200.4 (b) (14), 200.1(ee), 200.16(c) (2).

22

(c) Numerous preschool students who are LEP have been evaluated and determined to be in need of bilingualbicultural preschool special education services, but are receiving inappropriate English-only preschool special education services or no services at all.
(d) Once a parent is referred to the CPSE, the CPSE sends the parent a list of approved evaluation sites. The list of approved evaluation sites does not indicate whether an evaluation site can conduct evaluations in any language other than English. As a result, students who are LEP are especially likely to suffer delays in the provision of services because the inability of the evaluation site to conduct a bilingual evaluation often is not determined until the day of the scheduled evaluation. This forces the parent to reschedule the evaluation to some point in the future.
(e) Upon information and belief, numerous evaluations of students who are LEP are conducted through the use of a translator on the same day that the consent for evaluation form is signed, without any attempt to locate or secure the services of a bilingual evaluator. As a result, in many instances when a bilingual evaluator is required, the CPSE does not fulfill its obligation to seek and to obtain an appropriate bilingual evaluator.
(f) Upon information and belief, when defendants cannot find a self-contained program that fits the needs of an individual student, defendants also generally fail to provide the student with related services even though such
23

services have been recommended and would benefit the student. This failure is more acute for students who are LEP.
54. state Education Department representatives are aware that the current program providers do not seek to utilize sufficient bilingual special education services to meet current needs. Nevertheless, the State Education Department has not compelled the Board of Education to establish and implement procedures and practices designed to meet those needs and to comply with statutory requirements.
Least Restrictive Environment 55. Upon information and belief, the majority of preschool students with disabilities receive either related services only or are placed in self-contained, center-based, segregated preschool programs offering few, if any, opportunities to interact with non-disabled students. These same children with disabilities are typically not first considered for fully-integrated preschool programs that provide related services and support as required by law. This violates IDEA and New York State Education Law provisions that require procedures to assure that, to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment should occur only when the nature or severity of the disability is such that education in regular classes
24

(

with the use of supplementary aids and services cannot be

achieved satisfactorily. 34 C.F.R. § 300.550; 20 u.s.c.

§ 1412(5)(B); N.Y.E.L § 4410(4)(c).

56. The State Education Department has refused to order local education agencies to initiate alternative method(s), at no charge to parents, to comply with the least restrictive environment requirements of state and federal

law. Such methods may include but are not limited to: (i) providing opportunities for the participation (full or parttime) of preschool children with disabilities in other

preschool programs operated by public agencies (such as Head Start); (ii) placing preschool children with disabilities in private school programs for non-disabled preschool children or private school programs that integrate children with

disabilities and non-disabled children; and (iii) locating classes for preschool children with disabilities in regular elementary schools to increase opportunities for educational

interaction between children with disabilities and children
without disabilities. 20 u.s.c. § 1412(5)B; 34 C.F.R.
§ 300.552.

Transportation

57. The New York City Department of

Transportation, designated by the municipality of New York City to provide transportation services pursuant to the New York Education Law, has implemented practices that

unnecessarily delay the provision of transportation services to eligible preschool children and thus delay the provision

25

of any appropriate special education services to such children.

58. Further, the New York City Department of Transportation has refused to comply with individualized education plans and impartial hearing officer decisions mandating the provision of transportation services as of the first day of provision of any special education service.
Effect of Systemic Violations on Named Plaintiffs 59. Defendants' policies and practices have
deprived each of the named plaintiffs of his or her right to
a free appropriate preschool special education in the least
restrictive environment that meet their individual needs, including language needs.

(

60. Plaintiff Ray M. is Latino and is a Spanish-

speaking LEP child. Juana D., Ray M.'s mother, completed

the consent for evaluation form on February 2, 1993, and Ray

M. was evaluated on that same day. The CPSE review meeting

was not held until April 5, 1993, approximately two months

from the date of parental consent. The CPSE recommended

itinerant teacher services and bilingual speech therapy

twice a week, but the Board of Education did not approve

these services until May 24, 1993, causing a delay of six

additional weeks. Despite the CPSE's determination that Ray

M. needed bilingual speech services, the initial contract

for the provision of speech services specified monolingual

services. No bilingual services have yet been provided.

Over ~ year from the date of consent, Ray M. still has not

26

(

received bilingual speech therapy services. Defendants have

denied and continue to deny Ray M. an appropriate preschool

special education that meet his needs. This failure is the

direct result of defendants' pattern and practice of not

hiring, training or utilizing sufficient numbers of

bilingual evaluators and educational personnel. Defendants'

policies of delay may have irreparably harmed the mental and

emotional development of Ray M. Moreover, Ray M. will age-

out of the program in September 1994 and defendants have

significantly increased the likelihood that Ray M. will be

recommended for a segregated self-contained special

education class upon entering the public school system.

61. Plaintiff Jackey s. is Chinese, and is a

cantonese-speaking LEP child. Yin Jiang s., Jackey S.'s

mother, signed a consent for evaluation form on February 18,

1993; Jackey s. was evaluated on that same day. Although

Jackey S.'s native language is cantonese, Jackey s. was

evaluated, in part, in English through the use of a

translator. The summary of Evaluation form was not

completed until April 1, 1993; the review meeting was not

held until May 11, 1993; and the approval to receive

services was not issued until June 30, 1993, well over four

months from the date of consent. The CPSE recommended and

the Board of Education approved bilingual speech therapy two

days per week. Despite the recommendation, no services were

provided. An impartial hearing was scheduled for January

26, 1994, but the hearing was postponed after the CPSE

27

indicated that a Cantonese-speaking evaluator had been located. Unfortunately, the evaluator located by the CPSE spoke Mandarin, not Cantonese. After this error was brought to the CPSE's attention, the CPSE indicated that a proper evaluator had been found. However, still no services have been forthcoming. Despite the CPSE's representations and despite invocation of the administrative hearing process, it has been over one year since the date of parental consent and Jackey S. has not yet received any bilingual speech therapy services. Defendants have denied and continue to
deny Jackey s. timely, appropriate special education
services. This failure is the direct result of defendants' pattern and practice of not hiring, training or utilizing sufficient numbers of bilingual evaluators and educational personnel. Defendants' policies of delay may have irreparably harmed the mental and emotional development of Jackey S. Jackey S. will age-out of the program in September 1994 and defendants have significantly increased
the likelihood that Jackey s. will be recommended for a
segregated self-contained special education class upon entering the public school system.
62. Plaintiff Miguel F. is Latino and is a Spanish-speaking LEP child. The parental consent for evaluation form was completed October 7, 1993. Miguel F. was evaluated on that same day. At the review meeting held on December 27, 1993, the CPSE determined Miguel F. needed full-time bilingual preschool special education services and
28

intensive bilingual speech therapy. However, the IEP developed at this same review meeting failed to consider whether Miguel F.'s needs could be met in a full-time general education preschool program, provided at Board of Education expense, through the use of supplementary aids and services. Further, despite the CPSE's determination that Miguel F. needed a full-time, bilingual program, Miguel F. was referred to a full-time monolingual program with a bilingual para-professional. It has been over five months since the date of consent, and Miguel F. has yet to be placed in an appropriate, full-time bilingual preschool special education program; nor has he been provided intensive bilingual speech therapy or bilingual counseling. Defendants have denied, and continue to deny, Miguel F. an appropriate preschool special public education that meet his special needs, as mandated by federal and state statutes. This failure is the direct result of defendants' pattern and practice of not hiring, training or utilizing sufficient numbers of evaluators and education personnel. Defendants' policies of delay may have irreparably harmed the mental and emotional development of Miguel F. He will age-out of the preschool program in September, 1994. Defendants' conduct has significantly increased the likelihood that Miguel F. will be recommended for a segregated self-contained special education class upon entering the public school system.
63. Jose P. is Latino. Evelyn Q., Jose P.'s mother, signed the parental consent for evaluation form on
29

(

October 18, 1993, and Jose P. was evaluated on that same

day, as well as several other days. The CPSE review meeting

to determine the need for services was not held until

January 4, 1994, over 30 days from the date of parental

consent. At that meeting, the CPSE determined that Jose P.

needed speech and language therapy twice a week, individual

counseling twice a week, and special education itinerant

services. Notwithstanding this recommendation, the CPSE

attempted to pressure Evelyn Q. to place Jose P. in a full-

time, special education program. Evelyn Q. refused. On

January 14, 1994, the Board of Education approved the

recommended services. Itinerant services finally commenced

on or about January 18, 1994. Speech therapy services,

however, were not started until the first week of March

1994, and to date no counselling services have been provided

to Jose P. Defendants have denied and continue to deny Jose

P. appropriate preschool special education services that

meet his special needs as mandated by federal and state law.

This failure is the direct result of defendants' pattern and

practice of not hiring, training or utilizing sufficient

numbers of evaluators and education personnel. Defendants'

policies of delay may have irreparably harmed the mental and

emotional development of Jose P. Jose P. will age-out of

the preschool program in September 1994 and defendants'

conduct has significantly increased the likelihood that Jose

P. will be recommended for a segregated self-contained

30

(~

special education class upon entering the public school

system.

64. Plaintiff Katie B., age three, has a cleft lip and palate, a speech problem, hypotonia and arrested hydrocephalus. On February 16, 1993, Katie B.'s mother, Carrie B., signed a parental consent form to have Katie B. evaluated, and she was evaluated on February 16, 17 and 24, 1993. The CPSE review meeting was held on May 26, 1993, over three months from the date of Carrie B.'s consent. At the review meeting, the CPSE recommended that Katie B. receive speech therapy twice a week, physical therapy twice a week and English language counseling once a week. The appropriate placement for Katie B. was in an integrated program, but none was available at the time. As a result, the CPSE did not recommend a program, leaving this part of Katie B.'s IEP incomplete, and the CPSE placed the burden of finding an integrated program or other appropriate program on the parents of Katie B. Unable to find an integrated program in Katie B.'s district, Katie B.'s parents were forced to enroll her in a self-contained special education program in July 1993 and Katie B. remains in that program. Katie B. started receiving speech therapy services in July 1993, but she did not receive any counseling services throughout the summer of 1993 and she received only one physical therapy session during that summer. It was not until October 1993 that Katie B. received physical therapy and counseling services on a regular basis. Defendants have

31

denied Katie B. her right to a free appropriate preschool education in the least restrictive environment, as mandated by law. This failure is the direct result of defendants' pattern and practice of not hiring, training or utilizing sufficient numbers of evaluators and education personnel. Defendants' policies of delay may have irreparably harmed the mental and emotional development of Katie B.
65. Angel c. is three years old and is Latino.
Margarita V., Angel C.'s mother, signed the consent for evaluation form on August 4, 1993. On August 12, 1993, the East Bronx Day Care Center completed the evaluation of Angel
c. on October 1, 1993, nearly two months from the date of
parental consent, the CPSE held a review meeting, where it
determined that Angel c. needed speech therapy services
twice a week. On that same day, Margarita V. was provided with an "Awaiting Placement Notification" letter stating that, despite Angel C.'s need for such services, a final recommendation could not be made because no related service provider was available. In subsequent conversations with Margarita V., the CPSE informed her that they were unable to locate a provider who would be willing to provide services in the neighborhood in which Angel C. received mainstream preschool services. An impartial hearing was scheduled for March 2, 1994. The hearing, however, was postponed after the CPSE indicated that a service provider had been located and that ser.vices would start "soon." Despite the CPSE's representations and despite invocation of the administrative
32

process, it has been over seven months since the date of
parental consent and Angel c. still has not received the
required speech therapy services. Defendants have denied and continue to deny Angel C. free appropriate preschool special education services, in the least restrictive environment, as mandated by federal and state law. This failure is the direct result of defendants' pattern and practice of not hiring, training or utilizing sufficient numbers of evaluators and education personnel. Defendants' policies of delay may have irreparably harmed the mental and
emotional development of Angel c.
66. Benjamin L. is three years old. He is orthopedically impaired, visually and audiologically impaired and mentally retarded. He also suffers from a seizure disorder and has hydrocephalus, requiring a shunt to be permanently placed in his skull to drain spinal fluid. Angela L., Benjamin L.'s mother, completed a consent for evaluation form in January 11, 1993 and Benjamin L. was evaluated. On May 9, 1993, nearly four months since the date of parental consent, the Hard of Hearing Vision Impaired CPSE determined that Benjamin L. needed a full-time segregated educational setting. The CPSE also determined that, because of Benjamin L.'s fragile physical condition, he required transportation to and from the preschool program in an ambulette with a registered nurse and a special seat. The transportation services, however, were not provided until September 1993, and only after Advocates for Children
33

(

of New York intervened and scheduled an administrative

hearing. In February 1994, transportation services were

terminated and, as a result, Benjamin L. is once again being

deprived of his education program and related services. An

impartial hearing was held on February 14, 1994. The

hearing officer ordered the Board of Education to provide

Benjamin L. with the appropriate transportation services.

Despite invocation of the administrative hearing process and

despite the order of the hearing officer, the Department of

Transportation still has not provided Benjamin L. with the

appropriate transportation services. Defendants have failed

to provide Benjamin L. with a free appropriate public

preschool education. This failure is the direct result of

(~

defendants' pattern and practice of not hiring, training or

utilizing sufficient numbers of evaluators and education

personnel. Defendants' policies of delay may have

irreparably harmed the mental and emotional development of

Benjamin L.

Futility of Exhaustion

67. Both IDEA and the New York Education Law provide administrative procedures by which plaintiffs can seek to perfect their right to a free appropriate preschool education in the least restrictive environment. However, these procedures are inadequate and futile in the instant circumstances.

68. Resort to the administrative process is futile because the administrative hearing officers, in many

34

if not most instances, cannot provide the relief requested.

For example, administrative hearing officers cannot create

integrated settings in which to place plaintiffs who require

such settings. Furthermore, defendants have failed to hire,

train and utilize adequate numbers of educational personnel

to service the needs, including language needs, of the

plaintiff class, in violation of federal and state law.

Even where the administrative officer agrees that the

sought-after services must be provided, sfhe cannot mandate

the provision of preschool special education services that

many plaintiffs need and are entitled by law, but which do

not exist, as a result defendants' pattern and practices of

failing to hire, train or utilize sufficient numbers of

education personnel. The educational personnel do not exist

in the numbers needed by plaintiffs, and it is the lack of

adequately trained personnel that in many instances creates

the intolerable delays, leads to inappropriate evaluations,

and leads to the provision of inappropriate services.

69. Further, defendants' pattern and practice of

using the administrative hearing process as a tool to

further delay provision of services makes resort to

administrative hearings futile. When services are

recommended but not provided, many parents request an

impartial hearing. Before the hearing date, however, the

parties often negotiate a settlement whereby defendants

generally agree to provide the required services. Despite

(

the agreement, defendants often fail to provide the services

35

entirely or provide the services only after further considerable delay. This pattern and practice has been used to delay services to two of the named plaintiffs in this case, Jackey S. and Angel F.
70. Upon information and belief, resort to the administrative process is also futile because of defendants' pattern and practice of not timely abiding by the orders of administrative hearing officers. For example, an administrative hearing officer ordered defendants to provide transportation services to Benjamin L. Despite this order, Benjamin L. still has not received appropriate transportation services.
71. Moreover, the administrative process is inadequate because otherwise eligible students will age-out of the preschool population before exhausting their administrative remedies, due to the extremely short timeframe during which plaintiffs are entitled to receive preschool special education services and the extreme delay that has accompanied the provision of services. For instance, four of the seven named plaintiffs, Ray M., Jackey
s., Miguel F., and Jose P., will age-out of the preschool
program in September of this year. Plaintiffs cannot perfect their rights by pursu1ng administrative remedies within the extremely brief window of opportunity available to them.
36

VII CLAIMS FOR RELIEF First Claim for Relief for Violation of Plaintiffs' Rights Under IDEA against All Defendants 72. Plaintiffs restate paragraphs 1-71, as if fully set forth herein. 73. By depriving plaintiffs of timely, free appropriate public preschool education programs and services, including transportation services, in the least restrictive environment that meet their individual needs, including language needs, defendants have violated
plaintiffs' rights secured by IDEA, 20 u.s.c. §§ 1401-1485,
and the regulations promulgated thereunder, 34 C.F.. R. §§ 300.1 - 300.754.
Second Claim for Relief for Violation of
Plaintiffs' Rights Under 42 u.s.c. § 1983 against
the Board of Education, Chancellor Cortines, Executive Director Tames, Commissioner Sobol,
NYCDOT and Governor Cuomo 74. Plaintiffs restate paragraphs 1-73, as if fully set forth herein. 75. By depriving plaintiffs of timely, free appropriate public preschool education programs and services, including transportation services, in the least restrictive environment that meet their individual needs, including language needs, defendants have violated
plaintiffs' rights secured by IDEA, 20 u.s.c. §§ 1401-1485,
and the regulations promulgated thereunder, 34 C.F.R.
§§ 300.1 - 300.754, thereby violating 42 u.s.c. § 1983.
37

Third Claim for Relief for Violation of Plaintiffs' Rights Under Title VI against all Defendants 76. Plaintiffs restate paragraphs 1-75, as if
fully set forth herein. 77. By failing to provide Latino, Asians and
other minority preschool students with appropriate preschool special education programs and services in the least restrictive environment that meet their individual needs, including language needs, defendants prevent minority plaintiffs from effectively participating in the educational process to the same extent as English speaking students, and discriminate against these plaintiffs based on their national origin, in violation of Title VI of the 1964 Civil
Rights Act, 42 u.s.c. § 2000d, and its implementing
regulations, 45 C.F.R. § 80.3 et seg. Fourth Claim for Relief for Violation
of Plaintiffs' Rights Under 42 u.s.c. § 1983
against the Board of Education, Chancellor Cortines, Executive Director Tames,
Commissioner Sobol and Governor Cuomo 78. Plaintiffs restate paragraphs 1-77, .as if fully set forth herein. 79. By failing to provide Latino, Asian and other minority preschool students with appropriate preschool special educational programs and services in the least restrictive environment that meet their individual needs, including language needs, defendants prevent minority plaintiffs from effectively participating in the educational process to the same extent as English speaking students, and
38

discriminate against these plaintiffs based on their national origin, in violation of Title VI of the 1964 Civil
Rights Act, 42 U.S.C. § 2000d, and its implementing
regulations, 45 C.F.R. § 80.3 et seq., thereby violating 42
u.s.c. § 1983.

Fifth Claim for Relief for Violation of

Plaintiffs' Rights under the New York State

Education Law against the Chancellor Cortines, Executive

Board of Director

Education, Tames and NYCDOT

80. Plaintiffs restate paragraphs 1-79, as if

fully set forth herein.

81. By denying plaintiffs timely, free appropriate special preschool education programs and services, including transportation, in the least restrictive environment that meet their individual needs, including language needs, defendants have violated the New York State
Education Law §§ 4401-4410, and the regulations promulgated
thereunder, 8 N.Y.C.R.R. §§ 200.1 - 200.20.

VIII

82. judgment:

REQUEST FOR RELIEF Plaintiffs request that this Court enter

(a) declaring that defendants' failure to promptly and appropriately evaluate and provide plaintiffs with appropriate preschool special education services in the least restrictive environment that meet their individual needs, including language needs,
violates IDEA, 20 u.s.c. §§ 1401-1485, Title VI of the

39

1964 Civil Rights Act, 42 u.s.c. § 2000d, 42 u.s.c.
§ 1983, and the New York Education Law§§ 4401-4410, and enjoining continued violations of these provisions;
(b) declaring that the New York State statutory restriction that allows only preschool program providers to conduct evaluations, N.Y.E.L. §§ 4410(1) (a) and (9) (b), is violative of plaintiffs' rights under IDEA, 20 U.S.C. §§ 1401-1485, Title VI of
the 1964 Civil Rights Act, 42 u.s.c. § 2000d, and 42 u.s.c. § 1983, and conflicts with the New York State
Education Law §§ 4401-4410, and enjoin enforcement of the statutory restrictions;
(c) requiring defendants to identify immediately those class plaintiffs who have not been provided timely and/or appropriate preschool special education services in the least restrictive environment t~at meet their individual needs, including language needs, and ordering defendants to immediately provide to the identified plaintiffs the appropriate preschool special education services guaranteed to them by law;
(d) requiring defendants to provide immediately compensatory special education services in those instances where future services will not remedy the harm already incurred, or where plaintiffs would otherwise age-out of the system before the harm incurred can be rectified,
40

to compensate for defendants' pa~t conduct of failing to provide appropriate services;
(e) requiring defendants to design, to submit to plaintiffs and the Court for approval, and to implement an effective plan to assure that preschool children with disabilities in New York city will be timely and appropriately evaluated andjor provided appropriate preschool special education services in the least restrictive environment that meet their individual needs, including language needs. This necessitates a continuum of services that includes provision of related and/or itinerant services in conjunction with placement in a regular preschool, daycare or Head Start Center, at no cost to the parent, and that such children are not placed in segregated, self-contained center-based programs;
(f) appointing a Special Master to monitor defendants' implementation of the plan required by this order;
(g) retaining jurisdiction of this action for all purposes, including the entry of such additional orders as may be necessary or proper;
(h) requiring defendants to submit to counsel for plaintiffs and the Court regular periodic reports on the implementation of the plan;
(i) awarding plaintiffs reasonable attorneys' fees, costs and disbursements in this litigation; and
41

(j) granting plaintiffs such other and further relief as is just, proper and equitable.
Dated: New York, New York March 11, 1994

DAVIS POLK & WARDWELL
~-~---------~~ c;;..C:---- ···==-
~Daniel F. Kolb (DK 3793)
450 Lexington Avenue New York, New York 10017 (212} 450-4000

PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND
Juan A. Figueroa Kenneth Kimerling 99 Hudson Street New York, NY 10013-2815 (212) 219-3360

ADVOCATES FOR CHILDREN OF NEW YORK, INC.
Diana Autin 24-16 Bridge Plaza South Long Island City, N.Y. 11101 (718) 729-8866

TEITELBAUM, HILLER, RODMAN, PADEN & HIBSHER, P.C.

Roger J. Maldonado 260 Madison Avenue New York, New York (212) 213-1010

10016

42

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

RAY M., A MINOR UNDER THE AGE 21 YEARS, BY HIS MOTHER JUANA D.; JACKEY S., A MINOR UNDER THE AGE 21 YEARS, BY HIS MOTHER YIN JIANG S.; MIGUEL F., A MINOR UNDER THE AGE 21 YEARS, BY HIS MOTHER EVELYN Q.; KATIE B., A MINOR UNDER THE AGE 21 YEARS, BY HER MOTHER CARRIE B.; ANGEL C., A MINOR UNDER THE AGE 21 YEARS, BY HIS MOTHER MARGARITA V.; BENJAMIN L., A MINOR UNDER THE AGE 21 YEARS, BY HIS MOTHER ANGELA L.:'INDIVIDUALLY and ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

94 Civ.

1103

(EHN)/(JLC)

Plaintiffs,
- against -
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; RAMON CORTINES, CHANCELLOR OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK; HOWARD S. TAMES, EXECUTIVE DIRECTOR OF THE DIVISION OF SPECIAL EDUCATION OF THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; NEW YORK STATE EDUCATION DEPARTMENT; THOMAS SOBOL, COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK; NEW YORK CITY TRANSPORTATION DEPARTMENT; and MARIO M. CUOMO, GOVERNOR OF THE STATE OF NEW YORK,
Defendants.
-----------------------------------------X

. )

-_---,.-,

-J

.)
I -~

·.;

ORDER PRELIMINARY APPROVING SETTLEMENT, DIRECTING NOTICE TO THE CLASS AND SETTING A HEARING ON PROPOSED SETTLEMENT

UPON the request of all parties to this action to have the proposed Stipulation and Order that was made and entered into by and among plaintiffs, the State defendants and the City

defendants (the "Stipulation") approved pursuant to Rule 23 of

the Federal Rules of Civil Procedure; and

action;

UPON all other proceedings heretofore had in this

IT IS on this 7cn day of January, 1999, DECREED,

ADJUDGED AND ORDERED AS FOLLOWS:

1. The Court will set a hearing to determine whether the proposed Stipulation of settlement proposed among the parties to this action is fair, reasonable, adequate and legal pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

2. The hearing shall be held at ten o'clock a.m. on the 28ch day of January, 1999, in Courtroom 304 at the District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York (or at such adjourned dates as the Court may direct without further notice), for the purpose of

considering, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the fairness, reasonableness, adequacy and legality of the proposed settlement and whether or not it should be approved.

- 2-

3. Persons who are members of the plaintiff class, other parents of preschool special education students in New York City, parties to the action, the Interagency Council of Mental Retardation and Development Disabilities Agencies, Inc. (the "IAC") and other entities or persons who provide special education services to preschool students in New York City may voice their opposition to the terms of the Stipulation provided that they submit such objections in writing, by filing such objections with the Clerk of the United States District Court for the Eastern District of New York, with copies served upon counsel for plaintiffs, who will provide copies to counsel for the State defendants and the City defendants. All written objections shall be submitted on or before January 26, 1999. Upon the filing of such written objections, plaintiff class members, other parents of preschool special education students in New York City, parties to the action, the IAC, and other entities or persons who provide special education services to preschool students in New York City may appear at the hearing, personally or by counsel, and be heard in support of or in opposition to the proposed settlement.
4. Notice to the class of the hearing shall be provided as follows:
- 3-

(a) one time publication of the Notice annexed to this Order as Exhibit "1" (the "Notice") within 5 days after entry of this order in one English language periodical (The New York Post), one Spanish language periodical (El Diario), one Chinese language periodical (The World Journal), one Haitian-creole language periodical (The Haiti Observateur), and on one Russian Language periodical (Novoye Russkoye Slovo) in New York City;
(b) posting of the Notice as of 5 days after entry of this order for a period of 2 weeks at all Committees of Special Education and all Committees of Preschool Special Education in New York City and all New York City schools and private programs with special education programs for preschool students. The Notice will be posted in English, Spanish, Haitian Creole, Chinese and Russian; and
(c) distribution of the Notice in English, Spanish, Haitian-Creole, Chinese and Russian to students in preschool special education programs in New York City within 5 days after entry of this order. Posters and/or fliers regarding the Notice shall also be available for distribution through Advocates for Children of New York, Inc., and local community groups.
- 4-

This notice is hereby determined to be the best notice practicable under the circumstances of the nature of this action and the proposed settlement, and to meet the requirements of Rule 23(e) of the Federal Rules of Civil Procedure.
5. If the settlement shall not be approved or consummated for any reason whatsoever, the Stipulation and all proceedings had in connection with it shall be without prejudice to the rights of the parties status quo ante settlement and execution of the Stipulation by the parties.
6. The Court may adjourn the hearing from time to time at any time prior to or during the hearing, and may recommend that the District Court Judge presiding over the action approve or not approve the proposed settlement at or after the hearing without further notice except to counsel for the parties to the action, and with such modifications, if any, as may be agreed upon by the parties or ordered by the Court.

Dated:

New York, New York January 7, 1999

ted States Magistrate Judge - 5-

Exhibit 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-----------------------------------------X
RAY M. , ET AL. ,

94 Ci v. 1103 (EHN) (JLC)

- against -

Plaintiff,

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; NEW YORK STATE EDUCATION DEPARTMENT, ET AL.,

NOTICE OF CLASS ACTION SETTLEMENT
HEARING

Defendant.
-----------------------------------------X
TO: PARENTS OF ALL PRESCHOOL STUDENTS AGES 3-5 IN NEW YORK CITY WHO REQUIRE OR ARE RECEIVING SPECIAL EDUCATION SERVICES

THIS NOTICE IS GIVEN pursuant to Rule 23 of the Federal Rules of Civil Procedure and pursuant to an Order, dated January 7, 1999, entered by the Honorable Magistrate Judge John L. Caden of the District Court for the Eastern District of New York (the "Court"), in the above captioned civil action (the "Action"), to advise you that:
1. A hearing will be held before the Court on January 28, 1999, at ten o'clock a.m. in Courtroom 304 of the District Court for the Eastern District of New York, 225 Cadman

Plaza East, Brooklyn, New York (or at such adjourned dates as the
Court may direct) (the "Hearing") to determine whether the
proposed final settlement of the Action (the "Settlement'') should
be approved by the Court as fair, reasonable, adequate and legal.
2. The Action has been certified as a class action
consisting of a class (the "Class") including,
All disabled preschool students living in New York City, ages three through five, who have not been or will not be timely evaluated, recommended for, and/or provided special education services;
All disabled preschool students living in New York City, ages three through five, who are limited English proficient ["LEP students"] and who have been or will be referred to the [CPSE] for a determination as to whether they require special education services and for whom defendants failed to timely provide (i) an evaluation in the student's dominant language by appropriately licensed clinicians; and/or (ii) special education services recommended by the [CPSE] on the Individualized Education Program ["IEP"] and provided by appropriately licensed and trained professionals [the "LEP class"];
All disabled preschool students living in New York City, ages three through five, who have been or will be referred to the [CPSE] for a determination as to whether they require special education services and for whom defendants failed to consider, recommend and/or provide special education services in the least restrictive environment ["LRE"].
3. Plaintiffs claim that City and State defendants
violated federal and state law by failing to provide to class
- 2-

members appropriate special education services in the LRE that meets their needs, including language needs. City and State defendants deny plaintiffs' claims.
4. By Stipulation Order dated November 7, 1996, the LEP class claims against the New York State Education Department, the Commissioner of Education of the State of New York, and the Governor of the State of New York (collectively, "State defendants") were resolved.
5. The plaintiff class representatives, the State defendants and the City defendants have entered into a stipulation (the "Stipulation") resolving all of plaintiffs' remaining claims, including all of plaintiffs' claims against City Defendants relating to the timely evaluation, recommendation and provision of special education services in the LRE.
6. Pursuant to the Stipulation, the State and City defendants agree to undertake various actions to address plaintiffs' claims, which are summarized below:
(a) the New York State Education Department (the "SED") will issue clinical practice guidelines (the "Guidelines") providing guidance in making recommendations for the placement and provision of appropriate services in the LRE;
- 3-

(b) the SED, upon request, will assist the Board of Education of the City School District of the City of New York (the "Board") to comply with regulations governing the integration of students with disabilities in the Board's Universal prekindergarten program;
(c) the SED, upon request, will offer training and technical assistance on the provision of special education services in the LRE pertaining to the Universal Prekindergarten program in New York City;
(d) the SED will collect and analyze data and reports provided by the Board and private preschool programs regarding special education services being provided to and needed by preschool students in New York City;
(e) the SED will work with the New York State Office of Child and Family Services and the New York State Department of Health to promote opportunities for placement of class members in the LRE;
(f) the SED will monitor the programs that provide special education services to preschool students in New York City and will respond to complaints received regarding such programs pursuant to the requirements of applicable law and regulations;
- 4-

(g) the Board will provide the SED with the data and information required under this Stipulation and the Stipulation resolving claims regarding the LEP class;
(h) the Board will revise its standard operating procedures to be consistent with the applicable requirements of the Guidelines and guidelines that the SED has promulgated regarding the provision of special education services to LEP preschool students;
(i) the Board will cooperate with the SED's monitoring of its preschool special education programs;
(j) the Board will take certain measures to provide timely evaluations of preschool students;
(k) the New York City Department of Transportation will take certain measures to address the transportation needs of preschool students in New York City; and
(l) the SED and the Board will each provide plaintiffs' counsel annual written reports describing their compliance with the terms of the Stipulation.
7. The actions described in paragraph 6, abbve, are intended to summarize the major provisions of the Stipulation, but do not set forth all of the obligations and rights of the
- 5-

parties under the Stipulation. The provisions of the Stipulation, however, and not the summary set forth in paragraph 6 above, will govern the obligations and rights of the parties if the Court approves the Settlement. Class members and other parties in interest may request a copy of the Stipulation by writing to counsel for plaintiffs at the address listed in paragraph 10, below.
8. The Stipulation expires on August 31, 2001, at which time the action will be terminated.
9. Counsel for plaintiffs, as well as the State defendants and City defendants, believe that the terms and conditions specified in the Stipulation are reasonable, fair, adequate, legal and in the best interests of the class.
10. At the Hearing, the Court shall hear evidence and argument relating to the fairness, reasonableness, adequacy and legality of the proposed settlement. Any member of the class, party to the action, representative of the IAC or other entities or persons who provide special education services to preschool students in New York City may object to the terms of the Stipulation, voice their approval, or remain silent. Any person who wishes to object to the approval of the settlement must file
- 6-

objections, in writing, with the Clerk of the United States District Court for the Eastern District of New York, with copies served upon, Counsel for Plaintiffs at DAVIS POLK & WARDWELL, Attn: Audrey Ritfeld, Legal Assistant, 450 Lexington Avenue, New York, New York 10017, not later than nine (2) days prior to the hearing date set forth above, that is, not later than January 26, 1999.
11. If you do not have any objection to the Stipulation or Settlement, you are not required to attend the Hearing, although you are welcome to attend the Hearing even if you have no objection to the Stipulation or Settlement. If you plan on attending the Hearing and require the assistance of a translator, please notify counsel for plaintiffs in writing at the address listed in paragraph 10, above, so that arrangements can be made to provide a translator for you, if at all possible. Please be aware that the Hearing will address questions regarding the Settlement, and is not a required CPSE conference or IEP meeting. The Court may adjourn the hearing to a date subsequent to January 28, 1999 without further written notice.
12. Please do not contact the Court or the Clerk's Office for information about this action or the Hearing. Please
- 7-

address any questions you may have regarding the Hearing, the Settlement or the Stipulation in writing to plaintiff's counsel at the address indicated in paragraph 10, above.

Dated: Brooklyn, ~ew Y~rk January 7, 1999

'ted States Magistrate Judge

- 8-

 
 Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 1 of 15
CLOSED,MAG
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:94−cv−01103−EHN−JLC

M., et al v. Board of Education, et al Assigned to: Judge Eugene H. Nickerson Referred to: Magistrate Judge John L. Caden Demand: $0 Case in other court: NYED, 79CV 2562
NYED, 79CV 270
NYED, 79CV 560 Cause: 20:1400 Civil Rights of Handicapped Child
Plaintiff

Date Filed: 03/11/1994 Date Terminated: 02/26/1999 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ray M. a minor under the age 21 years, by his mother Juana D.

represented by Daniel F. Kolb Moxley, Jones &Campbell 111 East Broadway Suite 880 Salt Lake City, UT 84111 801−363−7500 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Kolb Davis, Polk and Wardwell 450 Lexington Avenue New York, NY 10017 (212)−450−4245 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen Gallagher Holmes Advocates for Children of New York 24−16 Bridge Plaza South Long Island City, NY 11101 (718) 729−8866 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger J. Maldonado Balber Pickard Battistoni Maldonado &Van Der Tuin, PC 1370 Avenue of the Americas New York, NY 10019−4602 212−246−2400 Fax: 212−765−4212 Email: rmaldonado@balberpickard.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jackey S. a minr under the age 21 years, by his mother Yin Jiang S.

represented by Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 2 of 15

Roger J. Maldonado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Miguel F. a minor under the age 21 years, by his mother Anatalia F.

represented by Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger J. Maldonado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jose P. a minor under the age 21 years, by his mother Evelyn Q.

represented by Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger J. Maldonado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Katie B. a minor under the age 21 years, by her mother Carrie B.

represented by Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger J. Maldonado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Angel C. a minor under the age 21 years, by his mother Margarita V.

represented by Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Kolb (See above for address) LEAD ATTORNEY

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 3 of 15

ATTORNEY TO BE NOTICED

Roger J. Maldonado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Benjamin L. a minor under the age 21 years, by his mother Angela L. Individually and on behalf of themselves and all other persons similarly situated

represented by Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel F. Kolb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger J. Maldonado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Board of Education of the City of New York
Defendant Ramon Cortines Chancellor of the Board of Education of the City School District of the City of New York
Defendant Howard S. Tames Executive Director of the Division of Special Education of the Board of Education of the City School District of the City of New York

represented by Robert A. Bell Office of the Corporation Counsel Law Department 100 Church Street New York, NY 10007 (212) 788−0300 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Rappaport The City of New York Law Department Office of Corporation Counsel 100 Church Street New York, NY 10007 (212) 232−2492 Email: rappapos@nycha.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert A. Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Rappaport (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert A. Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 4 of 15

Steven J. Rappaport (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant New York State Education Department

represented by Clement J. Colucci Attorney General's Office State of New York 120 Broadway Department of Law New York, NY 10271 (212) 416−8634 Email: clement.colucci@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert A. Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Rappaport (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Thomas Sobol Commissioner of Education of the State of New York

represented by Clement J. Colucci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert A. Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Rappaport (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
New York City Department of Transportation

represented by Robert A. Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Rappaport (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mario M. Cuomo Governor of the State of New York

represented by Clement J. Colucci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert A. Bell (See above for address)

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 5 of 15
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Rappaport (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/11/1994
03/11/1994 03/11/1994 03/11/1994 03/11/1994 03/16/1994
03/25/1994
03/28/1994 03/28/1994 03/28/1994 03/28/1994 03/28/1994 03/28/1994 03/28/1994 03/29/1994
04/05/1994

# Docket Text
1 COMPLAINT filed and summons(es) issued for Board of Education, Ramon Cortines, Howard S. Tames, NYS Education Dept., Thomas Sobol, NYC Transportation, Mario M. Cuomo FILING FEE $ 120.00 RECEIPT # 160271 (Greene, Donna) (Entered: 03/15/1994)
CASE REFERRED to Magistrate John L. Caden (Greene, Donna) (Entered: 03/15/1994)
2 MOTION by Ray M. &All Plaintiffs for preliminary injunction , to certify class action , Motion hearing set for 3/28/94 [2−1] set for 3/28/94 [2−2] motion. (Johnson, Lorraine) (Entered: 03/16/1994)
3 MEMORANDUM by Ray M. &ALL PLAINTIFFS in support of [2−1] motion for preliminary injunction, [2−2] motion to certify class. (Johnson, Lorraine) (Entered: 03/16/1994)
4 AFFIDAVIT of Daniel F. Kolb Re: [3−1] support memorandum, [2−1] motion for preliminary injunction, [2−2] motion to certify class action (attached Exhibits 1−10). (Johnson, Lorraine) (Entered: 03/16/1994)
5 AFFIDAVIT of Service by Donovan A. Anderson Re: [1−1] summons &complaint served upon the parties: NYC Dept. of Transportation, Thomas Sobol, Mario Cuomo, New York State Education Dept., Howard S. Tames, Ramon Cortines &NYC Board Of Education on 3/11/94. (Johnson, Lorraine) (Entered: 03/17/1994)
6 Letter dtd. March 23, 1994 from Daniel Kolb, counsel for the named and class plaintiffs, to Judge Nickerson requesting that the motion for a preliminary injunction be rescheduled to April 8, 1994 at 9:30. (Asreen, Wendy) (Entered: 03/25/1994)
8 RETURN OF SERVICE executed as to NYS Education Dept. 3/23/94 Answer due on 4/12/94 for NYS Education Dept. (Virno (Entered: 03/29/1994)
9 RETURN OF SERVICE executed as to Board of Education 3/11/94 Answer due on 3/31/94 for Board of Education (Virno (Entered: 03/29/1994)
10 RETURN OF SERVICE executed as to Ramon Cortines 3/11/94 Answer due on 3/31/94 for Ramon Cortines (Virno (Entered: 03/29/1994)
11 RETURN OF SERVICE executed as to NYC Transportation 3/11/94 Answer due on 3/31/94 for NYC Transportation (Virno (Entered: 03/29/1994)
12 RETURN OF SERVICE executed as to Howard S. Tames 3/11/94 Answer due on 3/31/94 for Howard S. Tames (Virno (Entered: 03/29/1994)
13 RETURN OF SERVICE executed as to Mario M. Cuomo 3/23/94 Answer due on 4/12/94 for Mario M. Cuomo (Virno (Entered: 03/29/1994)
14 RETURN OF SERVICE executed as to Thomas Sobol 3/23/94 Answer due on 4/12/94 for Thomas Sobol (Virno (Entered: 03/29/1994)
7 Letter MOTION by Board of Education, etc to extend time to submit a response to pltffs' motion for preliminary inj No Motion hearing [7−1] motion Letter dated 3/23/94 to EHN from Steven J. Rappaport. (Gonzalez, Mary) (Entered: 03/29/1994)
15 RESPONSE by counsel for plaintiffs in opposition to [7−1] motion to extend time to submit a response to pltffs' motion for preliminary inj. Response submitted in

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04/05/1994
04/08/1994 04/11/1994 04/14/1994 04/26/1994 04/26/1994 05/04/1994 05/04/1994 05/06/1994
05/09/1994 05/16/1994 05/19/1994 05/31/1994
06/01/1994 06/17/1994
06/21/1994

the form of a letter from Daniel Kolb to Judge Nickerson of 3/30/94. (Conte, Daniela) (Entered: 04/05/1994)
16 Letter from Steven J. Rappaport to Judge Nickerson dtd. 4/1/94 in response to Daniel Kolb's March 30, 1994 letter opposing City defendants' request for an extension of time until 4/22/94 to respond to plaintiffs' two pending motions. (Virno (Entered: 04/05/1994)
18 Calendar entry:Before Judge Nickerson on 4/8/94 Case called. All parties present. [2−1] Motion for preliminary injunction taken under advisement, [2−2] motion to certify class taken under advisement. (Virno (Entered: 04/13/1994)
17 ORDER, Setting status conference for 2:30 on 6/1/94 before Magistrate John L. Caden . ( signed by Magistrate John L. Caden, dated April 8, 1994 ) (Asreen, Wendy) (Entered: 04/11/1994)
19 STIPULATION AND ORDER OF ADJOURNMENT dtd. 4/8/94 extending time to answer until 4/29/94. ( signed by Judge Eugene H. Nickerson ) (Virno (Entered: 04/14/1994)
20 MEMORANDUM by Board of Education, Ramon Cortines, Howard S. Tames, NYS Education Dept., Thomas Sobol, NYC Transportation, Mario M. Cuomo in opposition to [2−1] motion for preliminary injunction (Virno (Entered: 04/28/1994)
21 DECLARATION OF STEVEN J. RAPPAPORT IN OPPOSITION TO PLAINTIFFS' Re: [2−1] motion for preliminary injunction (Virno (Entered: 04/28/1994)
22 REPLY MEMORANDUM OF LAW by Ray M., Jackey S., Miguel F., Jose P., Katie B., Angel C., Benjamin L. in further [2−1] motion for preliminary injunction, [2−2] motion to certify class action (Virno (Entered: 05/04/1994)
23 SUPPLEMENTAL AFFIDAVIT by Ray M., Jackey S., Miguel F., Jose P., Katie B., Angel C., Benjamin L. Re: n support of plaintiffs' motion for preliminary injunction and class certification. (Virno (Entered: 05/04/1994)
24 MEMORANDUM AND ORDER dtd 5/3/94, all matters in this case, including all motions, whether dispositive or otherwise, are referred to Magistrate Judge Caden for disposition or report and recommendation as appropriate. ( signed by Judge Eugene H. Nickerson ) (Roker, Michelle) (Entered: 05/06/1994)
25 ANSWER to Complaint by NYS Education Dept., Thomas Sobol, Mario M. Cuomo (fe) (Entered: 05/10/1994)
26 ORDER ( signed by Judge Eugene H. Nickerson ) (Virno (Entered: 05/16/1994)
27 ANSWER to Complaint by Board of Education, Ramon Cortines, Howard S. Tames, NYS Education Dept., Thomas Sobol, NYC Transportation, Mario M. Cuomo; jury demand (Virno (Entered: 05/19/1994)
28 SUPPLEMENTAL DECLARATION OF STEVEN J. RAPPAPORT IN OPPOSITION TO THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION AND FOR CLASS CERTIFICATION Board of Education, Ramon Cortines, Howard S. Tames, NYC Transportation in opposition to [2−1] motion preliminary injunction (Virno (Entered: 06/01/1994)
29 Calendar entry: Before Mag. Caden Case called. Hearing held decision reserved. (Virno (Entered: 06/03/1994)
30 REPORT AND RECOMMENDATIONS of Magistrate John L. Caden Re: [2−2] motion to certify class action ; finding that the pltffs meet all requirements for certification under Rule 23(a) and Rule 23(b)(2). Motion no longer referred. Objections to R and R due by 6/27/94. Copies mailed to all parties by Chambers. (Glenn, Marilyn) (Entered: 06/17/1994)
31 Pltffs' MOTION for Ellen Gallagher Holmes to appear pro hac vice. Motion hearing set for 9:30 7/6/94 [31−1] motion. (Greves, Liz) (Entered: 06/22/1994)

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06/23/1994 06/29/1994 06/29/1994
07/06/1994 07/08/1994 07/08/1994 07/13/1994 07/22/1994 07/25/1994 07/25/1994 07/28/1994 07/28/1994
08/02/1994 08/03/1994 08/03/1994

32 MOTION by counsel for defendants, dated 6/16/94, for Robert A. Bell to appear pro hac vice . Motion hearing set for 9:30 on 7/1/94 . Affidavit in support attached. (Conte, Daniela) (Entered: 06/23/1994)
33 OBJECTION by Board of Education, Ramon Cortines, Howard S. Tames, NYC Transportation to [30−1] findings &recommendations. Exhibits attached. (fe) (Entered: 06/30/1994)
34 Calendar entry: Before Caden, M. − Conference held 6/29/94 at 2:30. Deft's objection to Magistrate Judge's RRwere discussed. Magistrate will not reconsider his report. Pltff's several modification to the provisional class the recommended. Pltff will submit its proposal in writing by 7/8/94. Deft will respond by 7/22/94. The parties will appear before the Magistrate following their appearance before Judge Nickerson on 7/29/94. Hearings may be held over the first week of August 1994. (McGee, Maryann) Modified on 06/30/1994 (Entered: 06/30/1994)
35 AFFIDAVIT of Service by pltff's Re: [33−1] objection (Jackson, Ramona) (Entered: 07/06/1994)
36 SECOND SUPPLEMENTAL AFFIDAVIT of DANIEL F. KOLB IN SUPPORT OF PLAINTIFFS Re: [2−1] motion for preliminary injunction, [2−2] motion to certify class action (Virno (Entered: 07/11/1994)
37 SUPPLEMENTAL MEMORANDUM in support of [2−1] motion for preliminary injunction, [2−2] motion to certify class action (Virno (Entered: 07/11/1994)
38 RESPONSE by Ray M., Jackey S., Miguel F., Jose P., Katie B., Angel C., Benjamin L. in opposition to [33−1] objections to the resport and recommnedation of Mag. Caden, Dtd. 6/17/94. Attached Appendix to Pltffs Response. (Virno (Entered: 07/14/1994)
39 Lettet from Paul D. Murphy to Judge Nickerson dtd 7/15/94 requesting that the Court schedule oral argument for 7/29/94 at 10:00am. (Virno (Entered: 07/22/1994)
40 SECOND SUPPLEMENTAL DECLARATION OF STEVEN RAPPAPORT IN OPPOSITION TO THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION AND FOR CLASS CERTIFICATION. (Virno (Entered: 07/25/1994)
41 SUPPLEMENTAL MEMORANDUM by Board of Education, Ramon Cortines, Howard S. Tames, NYC Transportation in opposition to plaintiffs' motion for preliminary injunction and class certification, (Virno (Entered: 07/25/1994)
43 Calendar entry: Conference held before Magistrate Caden on 7/28/94. The Magistrate entered orders on the record; orders will be filed with the Court next week. Set status conference for 10:00 on 8/5/94 before Magistrate John L. Caden . (Asreen, Wendy) (Entered: 08/02/1994)
44 Calendar entry: Before Judge Nickerson on 7/28/94 @4:00 for Defts objections to Report &Recommendation of Magistrate Caden. Case called. Counsel for all paties present. Court Reporter Marsha Diamond. Report &recommendation approved &adopted. Parties will any problems relating to the definition of the class before the magistrate. (Gonzalez, Mary) (Entered: 08/02/1994)
42 Ltr. to J.Nickerson from Steven J Rappaport dtd. 7/28/94 Pltff's have not established the necessity for any preliminary relief (Jackson, Ramona) (Entered: 08/02/1994)
45 LETTER dated 6/20/94 from Daniel F. Kolb to Judge Nickerson requesting that the Court set a date by which the City and State dfts must comply and/or a date by which they will need to show cause why such services cannot be provided. (fe) (Entered: 08/03/1994)
46 LETTER dated 6/24/94 from Clement J. Colucci to Judge Nickerson stating that Mr. Kolb's reference to the "State Defendants", in his 6/20/94 letter re the setting of a date to comply with the Report and Recommendation, was inadvertent. (fe) (Entered: 08/03/1994)

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08/05/1994 08/09/1994 08/25/1994 08/25/1994 08/25/1994 08/29/1994
08/30/1994 09/14/1994 10/21/1994 10/21/1994 12/21/1994 01/10/1995 02/17/1995
03/06/1995
03/08/1995 03/17/1995 03/20/1995

47 Calendar entry: Before Magistrate Caden on 8/5/94 @10:00. The parties have reached agreement on several issues on the record. The parties will reconvene on 8/30/94 @4:00p.m. (Gonzalez, Mary) (Entered: 08/10/1994)
48 TRANSCRIPT of a civil proceeding before Mag. Caden filed for for dates of 8/5/94 (Virno (Entered: 08/10/1994)
49 Letter from Karen Norlander to Judge Nickerson dtd. 8/18/94 regarding the City's request for a temporary restraining order. (Virno (Entered: 08/25/1994)
50 Letter from Steven J. Rappaport to counsel of record dtd. 8/18/94 re: the modified plan, dated 8/17/94 is enclosed herewith. (Virno (Entered: 08/25/1994)
51 TRANSCRIPT filed for [18−1] civil cause for motion on 4/8/94. (Virno (Entered: 08/26/1994)
52 STIPULATION AND PROTECTIVE ORDER that any papers delivered to the Court which incorporates any confidential materials will be delivered in a sealed envelope, etc.. Within 30 days after the close of this case, including appeals, the Confidential Materials will be ret'd to City defendants' attorneys or destroyed, and all persons who possessed these materials shall verify their return or destruction by affidavit furnished to city defendants' attorneys. ** See order for complete details.( signed by Magistrate John L. Caden, dated August 29, 1994 ) (Asreen, Wendy) (Entered: 08/29/1994)
53 Calendar entry: Before Mag. Caden Case called. All parties present. Parties reviewed status of case with magistrate judge, next conference now scheduled for 9/9/94 at 4:00pm. (Virno (Entered: 09/01/1994)
54 Letter from Norma Kerlin to Judge Nickerson dtd. 8/25/94 defts motion is now rescheduled for 10/7/94. (Virno (Entered: 09/14/1994)
55 AFFIDAVIT by Ellen Gallagher Holmes Re: [37−1] in support of plaintiff's motion. (Vasquez, Liz) (Entered: 10/24/1994)
56 AFFIDAVIT by Juan Maldonado Re: in support of [2−2] motion to certify class action (Vasquez, Liz) (Entered: 10/24/1994)
57 LETTER dated 12/15/94 from Paul Murphy to Mag. Caden Re: requests oral argument be scheduled on issues remaining in plaintiff's motion for class certification. (Vasquez, Liz) (Entered: 12/21/1994)
58 Calendar entry: Before Mag. Caden−Case called. A hearing was held on the Rule 23 certification motion. A court reporter was present and a transcript shall be prepared. Decision reserved. (Vasquez, Liz) (Entered: 01/18/1995)
59 SUPPLEMENTAL REPORT AND RECOMMENDATIONS of Magistrate John L. Caden. Finding that pltff meet requirements for Rule 23, and recommends certain addition be made to the previously certified class. Case no longer referred to Magistrate John L. Caden. Objections to R and R must be filed with the clerk of court within ten days to preserve appellate review. (signed by Mag. Caden on 2/15/95). (Vasquez, Liz) Modified on 05/04/1995 (Entered: 02/17/1995)
60 OBJECTION by City Dfts: Board of Education, Ramon Cortines, Howard S. Tames, NYC Transportation to [59−1] Supplemental report &recommendations of Mag. Judge Caden dated 2/15/95 relating to pltffs' motion for class certification. (Exhibit 1−27 filed with objections) (Ferguson, Frances) Modified on 03/08/1995 (Entered: 03/06/1995)
61 AFFIDAVIT of service by Harry Torres. (Vasquez, Liz) (Entered: 03/16/1995)
62 Pltffs' RESPONSE to City defts' objections to the supplemental Report &Recommendation of Mag Caden dated 2/15/95. (Greves, Liz) (Entered: 03/21/1995)
63 Notice of MOTION by plaintiffs to Take additional Deposition , Motion hearing set for 10:00 4/12/95 [63−1] motion (Vasquez, Liz) Modified on 03/21/1995 (Entered: 03/21/1995)

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03/20/1995 03/21/1995 04/07/1995
04/07/1995
04/18/1995 05/03/1995
05/12/1995 10/02/1995
11/06/1995 12/08/1995
03/18/1996 04/01/1996
04/12/1996 04/12/1996 04/12/1996 04/12/1996
04/12/1996

65 AFFIDAVIT of Paul Murphy, Esq., in support of [63−1] motion to Take additional Deposition. (Vasquez, Liz) (Entered: 03/21/1995)
64 MEMORANDUM of law by plaintiffs in support of [63−1] motion to Take additional Deposition (Vasquez, Liz) (Entered: 03/21/1995)
66 Letter from Assistant Corp. Counsel Steven Rappaport to the Court dated April 6, 1995. Counsel request oral argument with respect to City Defts' Objections to the Supplemental R &R of Mag. Caden dated Feb. 15, 1995. (request denied as endorsed by Judge Nickerson) (Joseph, Derek) (Entered: 04/11/1995)
Endorsed order denying the request by counsel for City Defts for oral arguments with respect to the defts' objections to the Supplemental R &R of Mag. Caden. ( Signed by Judge Eugene H. Nickerson on letter Doc. #66 and dated April 7, 1995 ) (Joseph, Derek) (Entered: 04/11/1995)
67 LETTER dated 4/10/95 from Clement Colucci to Judge Nickerson. RE: We ask if the court grants oral argument we be excused from attending. (Vasquez, Liz) (Entered: 04/18/1995)
68 Memorandum and Order adopting Supplemental Report and Recommendation of Mag. Judge Caden, granting [2−1] motion for preliminary injunction and [2−2] motion to certify class action. ( signed by Judge Eugene H. Nickerson on 4/24/95) (DiTomasso, Mike) (Entered: 05/03/1995)
69 MAIL RETURNED Mem/order dtd 4/24/95 returned on 5/95 (Vasquez, Liz) (Entered: 05/12/1995)
70 Calendar entry: Before Mag. Caden−Case called. Defts will produce documents to pltff NLT 1 month from today; the Mag. Judge has given 2/23/96 as the returning date of any motion(s) for partial summary judgment that will be made in the near future. (Vasquez, Liz) (Entered: 10/04/1995)
CASE REFERRED to Magistrate−Judge Cheryl Pollak (Yuen, Sui May) (Entered: 11/06/1995)
71 ORDER, dtd 12/1/95. Above case has been assigned to Mag. Pollak for pretrial supervision . The parties are directed, to within 30 days of receipt of this order, to file a written report on the status of case. ( signed by Magistrate−Judge Cheryl Pollak). (Vasquez, Liz) (Entered: 12/08/1995)
72 NOTICE of status conference set for 4/1/96 at 2:30. (Glenn, Marilyn) (Entered: 03/18/1996)
73 LETTER dated 3/20/96 from John P. Dellera, Ass't Atty General, to Judge Nickerson. RE: I represent the deft State Education Dept., and am writing to request an adjournment of the status conference scheduled for 4/1/96 to 4/26/96. (Vasquez, Liz) (Entered: 04/01/1996)
74 LETTER dated 3/20/95 from Paul D. Murphy to Mag. Caden. RE: Enclosed is pltff's motion for leave to take additional depositions. (motion not enclosed). (Vasquez, Liz) (Entered: 04/12/1996)
75 LETTER dated 4/7/95 from Steven J. Rappaport to Mag. Caden. Re: I write in response to pltffs' motion for leave to take additional depositions. (Vasquez, Liz) (Entered: 04/12/1996)
76 LETTER dated 4/11/95 from Daniel F. Kolb, Esq., to Mag. Caden. RE: I write to reply to City defts' opposition to pltffs' motion for leave. (Vasquez, Liz) (Entered: 04/12/1996)
77 LETTER dated 5/5/95 from Roger J. to Mag. Caden. RE: I am writing on behalf of all parties to inform you that the parties have resolved the issues raised in pltffs' motion for leave to take additional depositions. (Vasquez, Liz) (Entered: 04/12/1996)
78 LETTER dated 9/27/95 from Roger J. Maldonado, Esq., to Mag. Caden. RE: I am writing to inform the court of the issues pltffs would like to address at the pre−motion conference on 10/2/95. (Vasquez, Liz) (Entered: 04/12/1996)

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04/17/1996 04/17/1996 04/17/1996 04/17/1996 04/17/1996 04/26/1996
04/30/1996
04/30/1996 06/14/1996 06/21/1996
06/24/1996 07/08/1996 07/08/1996 07/08/1996

79 LETTER dated 4/6/94 from Daniel F. Kolb to Judge Nickerson requesting that the City defts identify all disabled children who have been recommended for special education services, but who are still waiting to receive those recommended services. (Greves, Liz) (Entered: 04/17/1996)
80 LETTER dated 5/6/94 from Daniel F. Kolb to Magistrate Caden requesting that a date be set for oral argument on motion for preliminary injunction &class certification. (Greves, Liz) (Entered: 04/17/1996)
81 LETTER dated 5/25/94 from Steven J. Rappaport to Magistrate Caden requesting permission to file supplemental papers regarding pltffs' motion for class certification &a preliminary injunction by 5/27. (Greves, Liz) (Entered: 04/17/1996)
82 LETTER dated 5/16/94 from Steven J. Rappaport to Magistrate Caden enclosing courtesy copies of his Declaration in oppostion to pltffs' motion for a prelimianry injunction &class certification, City defts' Memo in opposition to that motion, &City defts' Answer &cross−claim. (Greves, Liz) (Entered: 04/17/1996)
83 Copy of LETTER dated 6/20/94 from Daiel K. Kolb to Judge Nickerson acknowledging receipt of Magistrate Caden's Report &Recommendation regarding formation of a provisional class of pre−school childen. (Greves, Liz) (Entered: 04/17/1996)
85 Calendar entry: Before Judge Nickerson−Case called for status/settlement conference. Counsel for all sides present. Pltff is attempting settlement with NY State defts; cannot discuss settlement with NYC defts until State issues are resolved. Motion for preliminary injunction outstanding. This case is referred back to Mag. Caden due to similarity with Jose P. v Sobol 96cv1834 (EHN). set status/settlement conference for 6/14/96 before Judge Eugene H. Nickerson . (Vasquez, Liz) (Entered: 05/06/1996)
84 INTER−OFFICE MEMO from Shirley Wilson, Case Manager to Judge Nickerson, to Terry Vaughn, Operations Mgr., dated April 29, 1996, requesting that this action be reassigned to Mag. Judge Caden for all pre−trial purposes, since this action is similar to 1:96−cv−1834, "Jose P. V. Ambach". (Vaughn, Terry) (Entered: 04/30/1996)
CASE REFERRED to Magistrate John L. Caden. See Document No. 84. (Vaughn, Terry) (Entered: 04/30/1996)
86 Calendar entry: Status Conference held before Judge Nickerson on 6/14/96. ESR: Lisa Auson. Case called. Counsel for all sides present. Counsel is directed to schedule a conference before Magistrate Caden. (Murphy, Margaret) (Entered: 06/18/1996)
87 LETTER dated 6/13/96 from Steven Rappaport to Judge Nickerson, that there is ample reason for the Court to defer approval of the proposed partial settlement until such time as more information is available and City defts and other affected entities are given a full opportunity to express their legitimate concerns. (Dobkin, David) (Entered: 06/21/1996)
88 FAXED LETTER dated 6/13/96 from Steven J. Rappaport to Judge Nickerson regarding the proposed partial settlement. (Guzzi, Roseann) (Entered: 06/24/1996)
89 Pltffs' Memo of Law in support of their request to approve the proposed stipulation &order regarding LEP students. (Greves, Liz) (Entered: 07/09/1996)
90 AFFIDAVIT of Roger Juan Maldonado in support of plttfs' request to approve the proposed stipulation &order regarding LEP students. (Greves, Liz) (Entered: 07/09/1996)
91 LETTER dated 7/8/96 from Roger Juan Maldonaldo, to Magistrate Caden, informing the Court of the issues plaintiffs would like to address at the conference scheduled to be held on 7/9/96 at 4:00 p.m. (Murphy, Margaret) (Entered: 07/09/1996)

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 11 of 15

07/09/1996 07/09/1996 07/09/1996 07/12/1996 07/12/1996
07/22/1996 07/23/1996
08/21/1996
08/30/1996 09/17/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996

92 DECLARATION of Steven J. Rappaport, counsel for Board of Education, Ramon Cortines, Howard S. Tames, and NYS Education Dept. Re: in opposition to preliminary approval of a partial settlement between plaintiffs and state defendants. Exhibits A−G attached. (Murphy, Margaret) (Entered: 07/10/1996)
93 MEMORANDUM by Board of Education, Ramon Cortines, Howard S. Tames, and NYS Education Dept. in opposition to the preliminary approval of a partial settlement between plaintiffs and state defendants. (Murphy, Margaret) (Entered: 07/10/1996)
94 Calendar entry: Civil Conference held before Magistrate Caden on 7/9/96. Magistrate Judge reserved decision. Set status conference for 10:30 on 7/12/96 before Magistrate John L. Caden . (Murphy, Margaret) (Entered: 07/10/1996)
95 TRANSCRIPT of Motions filed for 7/9/96 before Magistrate Caden. Court Reporter: Sheldon Silverman. (Murphy, Margaret) (Entered: 07/15/1996)
96 Calendar entry: Civil Conference held before Magistrate Caden on 7/12/96. Set status conference for 10:00 on 7/22/96 before Magistrate John L. Caden . Parties will present an order to be signed by the Magistrate Judge setting the date of Thursday 9/19/96 and Friday 9/20/96 for the hearing on plaintiff's and State Defendants application for preliminary approval of a partial settlement. (Murphy, Margaret) (Entered: 07/15/1996)
97 Calendar entry: Civil Conference held before Magistrate Caden on 7/22/96. The magistrate judge enters a written order preliminarily approving settlement, directing notice to the class and setting a hearing on proposed settlement. (Murphy, Margaret) (Entered: 07/23/1996)
98 ORDER PRELIMINARILY APPROVING SETTLEMENT, DIRECTING NOTICE TO THE CLASS ANDSETTING A HEARING ON PROPOSED SETTLEMENT. The Court will hold a hearing on 9/19/96 at 10:00 a.m. to determine whether the proposed Stipulation of settlement proposed among certain parties to this action is fair. All written objection shall be submitted on or before 7/22/96. ( signed by Magistrate John L. Caden, dated 7/22/96 ) c/m. ** See document for complete details. (Murphy, Margaret) (Entered: 07/23/1996)
99 Calendar entry: Civil Conference held before Magistrate Caden on 8/21/96. Set status conference for 3:00 on 9/17/96 before Magistrate John L. Caden . Notice to Haitian Creole parents has been extended one week due to a delay in notice. Magistrate Caden will meet with the parties on 9/17/96 to discuss any outstanding notice issues. (Murphy, Margaret) (Entered: 08/22/1996)
100 NOTICE that Stults &Balber, P.C. by Roger Juan Maldonado be substituted as attorneys of record for the plaintiffs in this case in place of Teitelbaum, Hiller, Rodman, Paden &Hibsher. (Murphy, Margaret) (Entered: 08/30/1996)
101 Calendar entry: Civil Conference held before Magistrate Caden on 9/17/96. Hearing on proposed settlement has been adjourned from 9/20/96 until 9:00 on 10/8/96 and 10/9/96 before Magistrate John L. Caden (Murphy, Margaret) (Entered: 09/19/1996)
102 LETTER dated 9/9/96 from Aida Fuentas, Bilingual Social Worker, to County Clerk, submitted as a written objection to the proposed class action. (Murphy, Margaret) (Entered: 09/26/1996)
103 LETTER dated 9/9/96 from Ruth E. Gonsky, Social Worker, to County Clerk, submitted as a written objection to the proposed class action settlement. (Murphy, Margaret) (Entered: 09/26/1996)
104 LETTER dated 9/9/96 from Marla Rose Fajardo, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was submitted in spanish and translated to english. (Murphy, Margaret) (Entered: 09/26/1996)
105 LETTER dated 9/9/96 from Efrain Aga, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 12 of 15

09/26/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996 09/26/1996 10/08/1996
10/16/1996 10/17/1996 12/03/1996
06/06/1997

106 LETTER dated 9/9/96 from Carmen Reyes, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
107 LETTER dated 9/9/96 from Enid Fernandez, to Sir/Madam, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
108 LETTER dated 9/9/96 from Candido Retome, to County Clerk, submitted as a written objection to the proposed class action settlement. (Murphy, Margaret) (Entered: 09/26/1996)
109 LETTER dated 9/9/96 from Dary Bracero, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
110 LETTER dated 9/9/96 from Sagrario Lisandro, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
111 LETTER undated, from Vilma Mercedes, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
112 LETTER dated 9/9/96 from Jesus Celeste Torres, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was tranlated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
113 LETTER dated 9/9/96 from Emilian Retome, to County Clerk, submitted as a written objection to the proposed class action settlement. (Murphy, Margaret) (Entered: 09/26/1996)
114 LETTER dated 9/9/96 from Irma Ortiz to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
115 LETTER dated 9/9/96 from Isabel Agostini, to County Clerk, submitted as a written objection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
116 LETTER dated 9/9/96 from Luz M. Cruz, to County Clerk, submitted as a written obbjection to the proposed class action settlement. Letter was translated from Spanish to English. (Murphy, Margaret) (Entered: 09/26/1996)
117 Calendar entry: Before JLC. Case called @10am for hearing. Parties present. (Courtreporter Holly Driscoll) The M.J. held a hearing on a "proposed stipulation and order" submitted by the LEP pltffs and the State Education Deft; for reasons set forth on the record, the M.J. has approved &recommended the stipulation &order be signed by J. Nickerson. (Mulqueen, Ellen) (Entered: 10/09/1996)
118 Trial Exhibits submitted. (Murphy, Margaret) (Entered: 10/16/1996)
119 TRANSCRIPT of Hearing filed for dates of 10/8/96 before Magistrate Caden. Court Reporter: Holly Driscoll. (Murphy, Margaret) (Entered: 10/18/1996)
120 STIPULATION AND ORDER whereaas plaintiff claim that defendants New York State Education Department, the Commissioner of Education of the State of New York and the Governor of the State of New York have violated plaintiffs rights to a free appropriate preschool public education in the least restrictive environment that meets their individual needs, including language needs, as guaranteed by by federal and state statutes and the regulations promulgated thereunder. ( signed by Judge Eugene H. Nickerson, dated 11/7/96 ) **See document for complete details. (Murphy, Margaret) (Entered: 12/03/1996)
121 REQUEST for Status Report from Shirely Wilson, Case Manager to counsel. It is requested that they inform the court in writing as to the present status and anticipated progress of this action within 20 days of this inquiry. (Murphy, Margaret) (Entered: 06/06/1997)

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 13 of 15

07/01/1997 03/02/1998 04/16/1998 04/22/1998 09/10/1998
11/04/1998 01/08/1999 01/08/1999 01/28/1999
01/28/1999 01/28/1999
01/28/1999 02/08/1999

122 LETTER dated 6/19/97 from Roger Juan Maldonaldo, one of the plaintiffs' counsel, to Judge Nickerson, advising that the parties will inform the Court promptly once the parties either reach an agreement on the proposed LRE Order or an impasse in settlement negotiations. (Murphy, Margaret) (Entered: 07/01/1997)
123 NOTICE dtd. 2/27/98 Request for status report within 20 days of date of this inquiry. Copies mailed (Jackson, Ramona) (Entered: 03/02/1998)
124 STATUS REPORT On ltr. dtd. 3/18/98 from Roger Juan Maldonado pltff's have been negotiating the terms of proposed stip. &order settling remaining claims. (Jackson, Ramona) (Entered: 04/16/1998)
125 Calendar entry:Before Mag Caden Civil Conf. It appears that the parties will reach a global settement of all issues in the case subject to a hearing on notice to all class members;, set final conference for 3:00 7/28/98 before Magistrate John L. Caden (Jackson, Ramona) (Entered: 04/29/1998)
126 Calendar entry: before Magistrate Judge Caden−Civil Conference held. It appears that the parties will submit to the Magistrate Judge on 11.04.98 a proposed settlement of all remaining claims (substantive) in this case together with a proposed notice procedure and hearing schedule on the settlement. Next status conference set for 2:30 on 11/4/98 before Magistrate John L. Caden . Galeano, Sonia (Entered: 09/14/1998)
127 Calendar entry: Before Mag Caden Civil Conf. Parties will submit a proposed order of settlement to include an order preliminary approving the settlement together with the notice to be provided to the class, set scheduling conference for 10:00 1/28/99 before Magistrate John L. Caden (Jackson, Ramona) (Entered: 11/17/1998)
128 ORDER dtd. 1/7/99 Preliminary Approving Settlement, directing notice to the Class and Setting a hearing on proposed settlement on Jan 28,1999 @ 10:00 ( signed by Magistrate John L. Caden ) (Jackson, Ramona) (Entered: 01/08/1999)
NOTICE of Hearing: set scheduling conference for Proposed Settlement on 10:00 1/28/99 before Magistrate John L. Caden (Jackson, Ramona) (Entered: 01/08/1999)
129 Calendar entry: Before M.J. Caden. Case called on 1/28/99 @10am for settlement hearing. (Courtreporter: Holly Driscoll) Hearing held. After hearing, the Magistrate Judge respectfully recommended to the District Court that the parties written stipulation of settlement be approved for reasons which the M.J. set forth on the record. Exhibits 1 through 8 received into evidence. (Mulqueen, Ellen) (Entered: 02/01/1999)
130 Joint Exhibit list received into evidence by M.J. Caden at hearing held on 1/28/99. Exhibits 1 through 8. (Exhibits placed in court file) (Mulqueen, Ellen) (Entered: 02/01/1999)
131 STIPULATION and ORDER Recommended &signed by Magistrate John L. Caden and counsel dated 1/28/99; So ordered by Judge Nickerson and dated Feb. 25, 1999. Whereas the parties have conducted substantial discovery regarding the claims &defenses raised in this action; Whereas pltffs &the State defts have settled all issues as between them relating to limited English proficiency, pursuant to the Stip/Order dtd 11/7/96 signed by Judge Nickerson; Whereas pltffs &the State &City defts now agree to resolve all remaining issues w/respect to the certified class as between pltffs &State &City defts; Therefore, pltffs &the State &City defts, through their undersigned attorneys stipulate &agreei as follows: Integrated Placement Options, Training, Data Collection, Interagency Coordination, Monitoring Compliance, Issues Regarding LEP Students, Issues Regarding CPSEs/Timely Evaluations, Issues Regarding Transportation, LRE Issues. (see Stip./Order document #131 for details) (Mulqueen, Ellen) Modified on 03/30/1999 (Entered: 02/01/1999)
132 DECLARATION OF BLANCHE GREENFIELD, Assistant Corporation Counsel, attorney for City defendants. (Mulqueen, Ellen) (Entered: 02/02/1999)
133 TRANSCRIPT filed for proceeding before Mag Caden for dates of 1/28/99 (Jackson, Ramona) (Entered: 02/08/1999)

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 14 of 15

02/26/1999 02/26/1999 02/26/1999 02/26/1999 02/26/1999 06/05/2000 06/27/2000
08/30/2000
01/25/2001
08/24/2001
09/05/2001
09/29/2001 09/29/2001
11/09/2001
11/09/2001
01/22/2002 01/22/2002

Case closed (Jackson, Ramona) (Entered: 02/26/1999)
134 LETTER dated 2/5/99 from Roger Juan Maldonado to Judge Nickerson enclosed documents relating to proposed settlement. (Jackson, Ramona) (Entered: 02/26/1999)
135 TRANSCRIPT filed for proceeding before Mag Caden for dates of 1/28/99 (Jackson, Ramona) (Entered: 02/26/1999)
136 Declaration of BLANCHE GREENFIELD Board of Education et al Re: to set forth the steps taken to provide notice to the class of the proposed settlement. (Jackson, Ramona) (Entered: 02/26/1999)
137 Exhibit one Ltr. to Mag caden from Mazrgery E.Ames (Jackson, Ramona) (Entered: 02/26/1999)
138 LETTER dated 5/17/2000 from Daniel F Kolb to Counsels motion for atty's fees with supporting documents. (Jackson, Ramona) (Entered: 06/05/2000)
139 LETTER dated 6/21/00 from Nancy Lazar, Esq., to Judge Nickerson advising that this matter has been settled, and requesting that the motion conference scheduled for 6/23/00 be removed from the Court's calendar. Stipulation and Order will be submitted shortly. (Rodriguez,Angela) (Entered: 06/27/2000)
140 STIPULATION and ORDER DPW'S motion for atty's fees Denied. City deft's to pay to DPW$545,000. State deft's to pay DPWthe sum $180,000.00. See document for all other orders. ( signed by Judge Eugene H. Nickerson , on 8/23/2000) (Jackson, Ramona) (Entered: 08/30/2000)
141 STIPULATION and ORDER Total Atty's fees and costs payable to pltff's is $15,098.00 in complete satisfaction of all atty's fees, costs &disbursements. ( signed by Judge Eugene H. Nickerson , on 1/24/2001) (Jackson, Ramona) (Entered: 01/25/2001)
142 STIPULATION and ORDER extending until 9.30.01 the term of the 2.25.99 Stipulation and Order. The parties are attempting to settle issues that have recently developed. (signed by Judge Eugene H. Nickerson on 8.29.01) (Rodriguez,Angela) (Entered: 09/05/2001)
143 LETTER dated 8.24.01 from Roger Juan Maldonado to Judge Nickerson advising that the parties are finalizing a stipulation and order for the court's consideration. The parties wish to extend the 2.25.99 stipulation to 9.30.01. (Rodriguez,Angela) (Entered: 09/05/2001)
144 LETTER dated 9.28.01 from Roger Juan Moldonado to Clerk of Court enclosing an original stipulation for the court's approval. (Rodriguez,Angela) (Entered: 10/01/2001)
145 STIPULATION and ORDER signed by Judge Eugene H. Nickerson on 10.1.01. The LRE stipulation period is extended through 12.31.01. The parties reserve the right to further extend the stipulation beyond 12.31.01, if the parties so agree, but not later than 6.30.02. (Rodriguez,Angela) (Entered: 10/11/2001)
146 LETTER dated 9.28.01 from Roger Juan Maldonado to Judge Nickerson enclosing a stipulation for the court's consideration. The parties agree to extend the effective period of the settlement agreement through 12/31/01. (Rodriguez,Angela) (Entered: 11/13/2001)
147 STIPULATION and ORDER: The period of time the LRE Stipulation shall remain in effect shall be extended through 12/31/01. The parties reserve the right to extend the period beyond 12/31/01, but not later than 6/30/02. (signed by Judge Eugene H. Nickerson on 10/22/01) (Rodriguez,Angela) (Entered: 11/13/2001)
148 LETTER dated 12/21/01 from Roger Moldonado to Clerk of Court enclosing a Stipulation and Order for the court's approval (attached−unsigned). (Rodriguez,Angela) (Entered: 01/22/2002)
149 LETTER dated 12/21/01 from Roger Moldonado to Judge Nickerson enclosing a stipulation and order that will extend the parties' settlement agreement through

Case: 1:94-cv-01103-EHN-JLC As of: 01/28/2014 09:52 AM EST 15 of 15

04/10/2002 09/25/2003

6/30/02. (Rodriguez,Angela) (Entered: 01/22/2002)
150 STIPULATION and ORDER: The period of time the LRE Stipulation shall remain in effect is extended through 6/30/02. C/M. ( signed by Judge Raymond J. Dearie , on 1/25/02) (Chee, Alvin) (Entered: 04/10/2002)
151 STIPULATION AND ORDER: The total attorneys' fees and costs payable to plaintiffs' counsel is $60,000, which sum shall be in complete satisfaction of all outstanding attorneys' fees, costs and disbursements incurred by plaintiffs' counsel. City defts shall pay $49,000. State defts shall pay $11,000. C/M. Signed by Judge Raymond J. Dearie on 9/22/03. (Chee, Alvin) (Entered: 09/25/2003)