Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page1 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 SID WOLINSKY (Bar No. 33716)

JOSHUA KONECKY (Bar No. 182897)

2 RHODA BENEDETTI (Bar No. 192606)

ALISON M. AUBRY (Bar No. 194107)

3 DISABILITY RIGHTS ADVOCATES

449 15th Street, Suite 303

4 Oakland, California 94612

Telephone: (510) 451-8644

5 Facsimile: (510) 451-8511

TTY:

(510) 451-8716

6 Email:

general@dralegal.org

7 ELIZABETH J. CABRASER (Bar No. 83151)

MORRIS A. RATNER (Bar No. 157554)

8 EVE H. CERVANTEZ (Bar No. 164709)

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

9 Embarcadero Center West

275 Battery Street, 30th Floor

10 San Francisco, CA 94111

Telephone: (415) 956-1000

11 Facsimile: (415) 956-1008

Email:

mratner@lchb.com

12

Attorneys for Plaintiffs

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

JULEUS CHAPMAN, by his guardian ad litem

CASE NO.

17 MONIQUE CHAPMAN; RYAN SMILEY, by

his guardian ad litem KRISTA SMILEY;

COMPLAINT

18 JENNIFER LYONS, by her guardian ad litem

SUSAN LYONS, on behalf of themselves and

CLASS ACTION

19 all individuals similarly situated, LEARNING

DISABILITIES ASSOCIATION OF

DEMAND FOR JURY TRIAL

20 CALIFORNIA,

21

Plaintiffs,

v.

22

CALIFORNIA DEPARTMENT OF

23 EDUCATION; DELAINE EASTIN,

Superintendent of Public Education;

24 FREMONT UNIFIED SCHOOL DISTRICT;

SHARON JONES, Superintendent of Fremont

25 Unified School District,

26

Defendants.

/

27

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

1

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page2 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

INTRODUCTION

2 1. This action arises out of Defendant CALIFORNIA DEPARTMENT OF EDUCATION’S

3

intentional discrimination against hundreds of thousands of students with disabilities in

4

the California public school system. Defendants are, without adequate preparation or

5

safeguards, hastily forcing the California High School Exit Exam (sometimes hereafter

6

referred to as the “Exit Exam” or “HSEE”) upon these students, destroying and ignoring

7

their educational attainments and self esteem, flagrantly violating their rights, and

8

damaging their academic, professional and employment opportunities forever.

9 2. In formulating and administering the High School Exit Exam, Defendants failed and

10

refused to take into account the needs of children with disabilities. As a result, the new

11

exams discriminate against children with disabilities in numerous ways.

12 3. For example, Defendants are required under federal law to provide an “alternate

13

assessment” to the California High School Exit Exam. In flagrant violation of that

14

requirement, Defendants have stated that they will not develop an alternate assessment,

15

and instead are requiring all students to take the High School Exit Exam, regardless of

16

whether an alternate assessment would be a more appropriate measure of the students’

17

knowledge, skills and abilities. Defendants are fully aware of their legal obligation to

18

provide an alternate assessment to disabled students. Many students with disabilities

19

should participate in an alternate assessment rather than the California High School Exit

20

Exam because an alternate assessment is the only method by which to provide an accurate

21

measure of the students’ abilities and skills.

22 4. In addition, Defendants have failed to establish any procedure for students with

23

disabilities to request accommodations on the High School Exit Exam. As a result,

24

students, parents, and school administrators do not know what process should be

25

followed to request accommodations, and there are no uniform standards for

26

consideration of, or granting of, accommodation requests.

27 5. Defendants have also failed to establish any procedure to review denials of

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

2

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page3 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

accommodation requests. Thus, students who are denied accommodations that they need

2

on the Exit Exam are unable to appeal these decisions, regardless of how incorrect or

3

arbitrary the denials may be.

4 6. The High School Exit Exam further discriminates against students with disabilities

5

because these children have not been prepared by their administrators or teachers to take

6

the Exit Exam. Throughout their educations, many of these children have studied an

7

individualized curriculum set forth in their Individualized Education Programs (IEPs) or

8

“Section 504" education plans. Now, on the High School Exit Exam these children are

9

tested on material that they have never been taught. As noted by an independent

10

consultant hired by Defendants to evaluate the Exit Exam, the process of aligning

11

students’ IEPs or Section 504 plans to match the curriculum tested on the Exit Exam is a

12

lengthy one that requires a lead time of at least several years. Despite the independent

13

consultant’s recommendation that Defendants institute measures to modify disabled

14

students’ IEPs and Section 504 Plans to align with the curriculum tested on the Exit

15

Exam, Defendants have taken no such steps.

16 7. The High School Exit Exam has two parts: English and mathematics. The English

17

portion of the test, which includes multiple choice questions and two essays, addresses

18

State Board of Education standards through grade ten. The mathematics test covers

19

arithmetic, statistics, data analysis and probability, number sense, measurement and

20

geometry, mathematical reasoning, and algebra. Students may take the test in ninth grade,

21

and will be required to take the test in tenth grade, and then every year thereafter (up to

22

three times per year) until they pass both portions of the test.

23 8. The consequences to students of failing to pass the High School Exit Exam are profound.

24

Defendants will require all public school students in the Class of 2004 to pass the High

25

School Exit Exam in order to graduate from high school. Regardless of how bright and

26

talented students are, how hard they work, or how high achieving they may be, students

27

who do not pass the exam will not graduate from high school, will not receive a regular

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

3

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page4 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

diploma, and will be severely disadvantaged in applying for employment and for college

2

admission.

3 9. Without the proper accommodations (or alternative assessments, if appropriate), and

4

without modification of their specialized curriculum to include the subject matter being

5

tested, it is likely that a great majority of California students with disabilities will not be

6

able ever to pass the Exit Exam, no matter how many times the test is given to them, and

7

therefore will not be able to graduate from high school. Instead, these students will

8

receive an inferior “Certificate of Attendance” or “Certificate of Completion” that is not

9

equivalent to a high school diploma.

10 10. By requiring children with disabilities to take discriminatory and unfair tests with high

11

stakes consequences and no alternate assessments, Defendants have created a dual track

12

system of public education in which otherwise qualified students with disabilities will be

13

relegated to the lower tier and prevented from pursuing academic, professional and

14

employment opportunities simply because of their disabilities.

15 11. In sum, the High School Exit Exam discriminates against students with disabilities

16

because, among other problems, (1) there is no alternate assessment, (2) there is no

17

procedure for requesting accommodations on the Exam, (3) there is no procedure for

18

appealing denials of accommodation requests, and (4) the Exam tests disabled students on

19

material they have never been taught.

20 12. Fully aware of the defects of the High School Exit Exam as it affects students with

21

disabilities, Defendants have nevertheless chosen to proceed with the test, and already

22

administered the exam in March 2001. In contrast, other states such as Oregon and

23

Massachusetts, have taken and are taking extensive steps to ensure that their statewide

24

assessment systems do not discriminate against students with disabilities.

25 13. For example, Oregon recently settled a lawsuit and agreed to adopt the recommendations

26

of an expert panel commissioned to study Oregon’s testing system to evaluate whether a

27

similar high stakes testing system implemented there discriminated against students with

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

4

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page5 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

disabilities. Under the settlement, Oregon will (a) develop alternate assessments for

2

disabled students, (b) allow extensive accommodations for disabled students, (c) provide

3

comprehensive information and training to parents, teachers, administrators, and IEP and

4

504 Plan team members regarding the assessment system and participation options for

5

students with disabilities, (d) ensure that the IEP and 504 teams individually assess every

6

disabled student to determine how that student should participate in the assessment

7

system, (e) institute a problem resolution and appeals process by which students can

8

appeal decisions regarding accommodation requests and participation in an alternate

9

assessment, and (f) conduct ongoing research regarding accommodations and the validity

10

and reliability of the assessment system for students with disabilities.

11 14. Similarly, Massachusetts recently revised its regulations concerning its high school exit

12

exam, the Massachusetts Comprehensive Assessment System (“MCAS”), in response to

13

concerns raised by disability advocacy groups that the test discriminated against disabled

14

students. These new regulations provide that IEP and 504 teams will determine whether a

15

disabled student should participate in an alternate assessment or a standard assessment,

16

and, if a student takes the standard assessment, what accommodations he or she should

17

use on the tests. The list of accommodations available on the test is extensive. The

18

regulations provide specific guidance to IEP and 504 teams regarding the factors to be

19

considered when making decisions about how disabled students participate in the MCAS.

20

The regulations also explicitly note that disabled students who do not have an IEP or 504

21

Plan may request accommodations.

22 15. Unlike Oregon and Massachusetts, Defendants have knowingly disregarded the concerns

23

that have been raised by their own expert consultant that the Exit Exam discriminates

24

against disabled students. Additionally, Plaintiffs have on numerous occasions contacted

25

the Governor’s office to inform the State of the multiple deficiencies in the High School

26

Exit Exam, and to seek a constructive resolution to the problem. Defendants have never

27

provided a substantive response to Plaintiffs, and as a result, Plaintiffs are forced to file

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

5

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page6 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

this lawsuit in order to protect the rights of students with disabilities.

2 16. Without immediate relief from the Court, Plaintiff students will be irreparably harmed in

3

that they will be denied numerous academic, professional and employment opportunities,

4

may not graduate from high school, and will experience severe damage to their self-

5

esteem and emotional well-being.

6

JURISDICTION

7 17. The Court has subject matter jurisdiction over Plaintiffs’ federal law claims under 28

8

U.S.C. §§ 1331 and 1343.

9 18. The Court has jurisdiction to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201

10

and 2202.

11 19. Plaintiffs are not required to exhaust the administrative procedures set forth in the

12

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., because

13

they are challenging policies and practices of general applicability that are contrary to

14

numerous federal laws (including IDEA) and because Plaintiffs cannot obtain adequate

15

relief through administrative remedies.

16 20. Venue is proper in this Court under 28 U.S.C. § 1391(b). All Defendants reside in the

17

State of California, and Defendants FREMONT UNIFIED SCHOOL DISTRICT and

18

SHARON JONES reside in the Northern District of California. Moreover, a substantial

19

part of the events giving rise to this action occurred in the Northern District of California.

20

INTRADISTRICT ASSIGNMENT

21 21. Assignment of this action to either the San Francisco or Oakland Divisions is proper

22

because a substantial part of the events or omissions which give rise to Plaintiffs’ claims

23

occurred in Alameda County.

24

THE PARTIES

25 22. Plaintiff Juleus Chapman is a thirteen year old boy with severe dyslexia. Juleus attends

26

Hopkins Jr. High School in Fremont, California and will take the High School Exit Exam

27

during the 2001-2002 school year when he will be in the ninth grade. Juleus’ mother,

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

6

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page7 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

Monique Chapman, has filed simultaneously with this Complaint a petition with the

2

Court to act as his guardian ad litem.

3 23. Plaintiff RYAN SMILEY is a fourteen year old boy with dyslexia and dysgraphia. Ryan

4

attends Crescenta Valley High School in La Crescenta, California, and took the High

5

School Exit Exam in March 2001. Ryan’s mother, Krista Smiley, has filed

6

simultaneously with this Complaint a petition with the Court to act as his guardian ad

7

litem.

8 24. Plaintiff JENNIFER LYONS is a thirteen year old girl with dyslexia. Jennifer attends

9

Mountain Ridge Middle School in Magalia, California, and will take the High School

10

Exit Exam during the 2001-2002 school year when she will be in ninth grade. Jennifer’s

11

mother, Susan Lyons, has filed simultaneously with this Complaint a petition with the

12

Court to act as her guardian ad litem.

13 25. Plaintiff LEARNING DISABILITIES ASSOCIATION OF CALIFORNIA (“LDA-CA”)

14

is a 501(c)(3) non-profit volunteer organization founded in 1960. The purpose of LDA-

15

CA is to promote awareness, increase knowledge, and support education in a manner that

16

optimizes fulfillment of the individual potential of children and adults with learning

17

disabilities. This is accomplished through outreach, advocacy, referrals, and

18

collaboration. LDA-CA currently serves over 2,000 parent, professional, and adult

19

members with learning disabilities through publications, conferences, and 12 regional

20

locations and a State office in Sacramento. The membership of LDA-CA includes

21

parents of Plaintiff students, including MONIQUE CHAPMAN, KRISTA SMILEY, and

22

SUSAN LYONS. LDA-CA sues on its on behalf and on behalf of its members.

23 26. Defendant CALIFORNIA DEPARTMENT OF EDUCATION is the department of state

24

government responsible for administering and enforcing laws related to education. The

25

CALIFORNIA DEPARTMENT OF EDUCATION is a public entity within the meaning

26

of Title II of the Americans with Disabilities Act and other applicable laws. The

27

CALIFORNIA DEPARTMENT OF EDUCATION receives federal financial assistance

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

7

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page8 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

from the United States Department of Education and is therefore covered by the

2

requirements of Section 504 of the Rehabilitation Act of 1973. The CALIFORNIA

3

DEPARTMENT OF EDUCATION is a state educational agency and is therefore covered

4

by the requirements of the Individuals with Disabilities Education Act.

5 27. Defendant DELAINE EASTIN, sued in her official capacity, is the State Superintendent

6

of Public Instruction in California and the Chief Executive Officer of the CALIFORNIA

7

DEPARTMENT OF EDUCATION.

8 28. Defendant FREMONT UNIFIED SCHOOL DISTRICT is a local government entity

9

within the meaning of Title II of the ADA, a recipient of federal financial assistance

10

within the meaning of Section 504 of the Rehabilitation Act, and a local educational

11

agency covered by the Individuals with Disabilities Education Act. FREMONT

12

UNIFIED SCHOOL DISTRICT has at least fifty employees.

13 29. Defendant SHARON JONES is Superintendent of FREMONT UNIFIED SCHOOL

14

DISTRICT. She is being sued in her official capacity.

15 30. References in this Complaint to Defendants, unless otherwise stated, shall be deemed to

16

refer to all defendants, and to each of them.

17

CLASS ALLEGATIONS

18 31. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs bring this

19

action on their own behalf and on behalf of all persons similarly situated. The class

20

which these Plaintiffs represent is composed of all students with disabilities who are or

21

will in the future be required to take the California High School Exit Exam. The class is

22

sometimes hereafter referred to as “Plaintiff students” or “Plaintiff children.”

23 32. The persons in the class are so numerous that joinder of all such persons is impracticable.

24 33. There are numerous issues of fact and questions of law common to the class. These

25

common factual issues include, but are not limited to, the following:

26

a. Defendants’ failure to develop an alternate assessment to the California High

27

School Exit Exam.

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

8

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page9 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

b. Defendants’ development and administration of the High School Exit Exam,

2

which all public high school students are required to pass to graduate from high

3

school.

4

c. Defendants’ failure to adopt regulations specifying either a process for requesting

5

accommodations or a standard for consideration of, and granting of, such requests.

6

d. Defendants’ failure to establish an appeals process by which students can appeal

7

denials of accommodations requests.

8

d. Defendants’ failure to provide training and guidance to teachers, administrators,

9

and IEP and 504 Plan team members regarding the High School Exit Exam and

10

participation options for students with disabilities.

11

e. Defendants’ failure to modify the IEPs or 504 Plans of disabled students to align

12

with the curriculum tested on the Exit Exam.

13 34. The common questions of law include, but are not limited to, the following:

14

a. Does Defendants’ failure and refusal to provide an alternate assessment to the

15

California High School Exit Exam discriminate against Plaintiffs in violation of

16

federal law?

17

b. Does Defendants’ failure to modify disabled students’ IEPs and Section 504 plans

18

to align with the curriculum tested on the Exit Exam violate federal law?

19

c. Does Defendants’ failure to establish any procedure for consideration of, or

20

granting of, requests for reasonable accommodations on the Exit Exam violate

21

federal law?

22

d. Does Defendants’ failure to establish any procedure for appealing denials of

23

requests for reasonable accommodations violate federal law?

24

e. Is the High School Exit Exam an invalid test for assessing the knowledge, skills

25

and abilities of students with disabilities, in violation of the due process

26

protections of the United States Constitution?

27

f. Have students with disabilities been provided with an adequate opportunity to

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

9

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page10 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

learn the material tested on the Exit Exam, as required by the due process

2

protections of the United States Constitution?

3 35. The claims of the named Plaintiffs are typical of those of the class, and named Plaintiffs

4

will fairly and adequately represent the interests of the class. Plaintiffs have engaged

5

competent counsel to assist them in prosecuting their claims.

6 36. Defendants have acted and refused to act on grounds generally applicable to the class,

7

thereby making appropriate final injunctive relief and/or corresponding declaratory relief

8

with respect to the class as a whole.

9 37. References to Plaintiffs shall be deemed to include the named plaintiffs and each member

10

of the class.

11

FACTUAL ALLEGATIONS

12 38. Plaintiffs, who attend public schools throughout California, are students with disabilities

13

protected by federal law. There are hundreds of thousands of disabled children who

14

attend California’s public schools and who will be required to take the High School Exit

15

Exam and pass it in order to graduate from high school.

16 39. By virtue of their disabilities, many students with disabilities have either a legally

17

mandated Individualized Education Program (“IEP”) pursuant to IDEA, or a Section 504

18

Education Plan (“504 Plan”) pursuant to Section 504 of the Rehabilitation Act of 1973.

19

These plans are required by law to be created through an interactive process between

20

educators, parents and their children, and are supposed to specify a child’s individual

21

needs, including whether and how a student will participate on statewide assessments

22

such as the High School Exit Exam. Some students with disabilities do not have either an

23

IEP or a Section 504 Plan.

24 40. People with learning disabilities span the intelligence spectrum and many children with

25

learning disabilities are of very high intelligence. Learning disabilities are the result of

26

permanent neurological dysfunction or information processing disruptions that result in

27

limited, unexpected, and usually intractable impediments in the ability to learn one or

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

10

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page11 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

more basic skills taught through traditional formal education. Many people with learning

2

disabilities work far harder than others in order to compensate for their disabilities.

3 41. There are several types of learning disabilities. Dyslexia, a particular learning disability,

4

results from a neurological difference in processing phonemes, the basic unit of language,

5

and can be seen in brain scans as early as infancy. Dyslexia impairs the ability to process

6

language. A dyslexic individual may have difficulty reading, developing age/grade

7

appropriate vocabulary, handwriting, spelling, taking notes, and memorizing rote and

8

sequential facts, steps and information. Dysgraphia, another specific learning disability,

9

is a neurocognitive, neuromotor language-based processing disorder often, but not always

10

associated with dyslexia. Dysgraphia impairs an individual’s ability to write legibly in a

11

defined space over a normal timeframe. Dyscalculia is a mathematical learning disability

12

in which a person has significant difficulty grasping math concepts and acquiring and

13

retaining math computation and problem solving skills.

14 42. Plaintiff Juleus Chapman is a thirteen year old with dyslexia, a specific type of learning

15

disability. Juleus lives in Fremont, California, and he attends public schools in that city.

16 43. Juleus will take the High School Exit Exam during the 2001-2002 school year, when he

17

will be in ninth grade. Juleus has an Individualized Education Program that specifies he

18

is allowed to use certain testing accommodations due to his dyslexia. These testing

19

accommodations include, inter alia, extended time, use of a lap top computer, use of a

20

calculator, and audio presentation of test items. Juleus requires these accommodations to

21

minimize the effect of his dyslexia and to demonstrate his skills and abilities.

22 44. Juleus was told by a Fremont school official that when he takes the High School Exit

23

Exam during the 2001-2002 school year he will not be allowed to use any

24

accommodations on the tests. Juleus and his parents have not been provided any

25

information about how to request an accommodation for the Exit Exam, or how to appeal

26

a denial of an accommodation request.

27 45. Juleus’ IEP has not been modified to align with the curriculum tested on the High School

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

11

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page12 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

Exit Exam.

2 46. Juleus requires an individual assessment by his IEP team to determine whether he should

3

participate in the High School Exit Exam with accommodations, or whether an alternate

4

assessment would be more appropriate.

5 47. Plaintiff Ryan Smiley is a fourteen year old with dyslexia and dysgraphia. Ryan lives in

6

Montrose, California, and he attends public schools in La Crescenta, California.

7 48. Ryan, who is in ninth grade, took the High School Exit Exam in March 2001. Ryan has

8

an Individualized Education Program that specifies he is allowed to use certain testing

9

accommodations due to his learning disabilities. These testing accommodations include,

10

inter alia, extended time, use of a specialized lap top computer called an “Alphasmart,”

11

use of a calculator, and audio presentation of test items. Ryan requires these

12

accommodations to minimize the effect of his learning disabilities and to demonstrate his

13

skills and abilities.

14 49. During Ryan’s IEP meeting in the fall of 2000, Ryan’s mother, Krista Smiley, was told

15

that Ryan would be allowed to use full accommodations on all tests. Mrs. Smiley

16

understood this to mean that Ryan would be allowed to use the accommodations he

17

needed on the Exit Exam.

18 50. Prior to the administration of the Exit Exam in March 2001, Ryan and his parents were

19

not been provided any information about how to request an accommodation for the Exit

20

Exam, or how to appeal a denial of an accommodation request. The only information

21

Ryan received about the Exit Exam was that he was told, along with the other learning

22

disabled students in his special education class, that he and the other learning disabled

23

students would take the Exit Exam in a separate room and be allowed to have extra time

24

on the test.

25 51. When Ryan took the Exit Exam in March 2001, he was not allowed to use all of the

26

testing accommodations specified in his IEP. Although he normally has exams read to

27

him, a reader was not provided for the English portion of the Exit Exam. In addition,

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

12

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page13 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

Ryan was allowed to use his Alphasmart word processor on only one of the two essays.

2 52. Ryan had not studied much of the content that was tested on the math portion of the Exit

3

Exam. Ryan is currently enrolled in pre-Algebra, and has not studied Algebra or

4

Geometry, both of which are tested on the Exit Exam.

5 53. Ryan’s IEP has not been modified to align with the curriculum tested on the High School

6

Exit Exam.

7 54. Ryan requires an individual assessment by his IEP team to determine whether he should

8

participate in the High School Exit Exam with accommodations, or whether an alternate

9

assessment would be more appropriate.

10 55. Plaintiff Jennifer Lyons is a thirteen year old with dyslexia. Jennifer lives in Magalia,

11

California, and attends public schools in Paradise, California.

12 56. Jennifer will take the High School Exit Exam during the 2001-2002 school year, when

13

she will be in ninth grade. Jennifer has an Individualized Education Program that

14

specifies she is allowed to use certain testing accommodations due to her learning

15

disability. These testing accommodations include, inter alia, use of an electronic spell

16

checker, use of a calculator, use of a computer, scanner, and cassette recorder. Jennifer

17

requires these accommodations to minimize the effect of her dyslexia. These

18

accommodations are probably not sufficient, however, to allow her to fully demonstrate

19

her knowledge, skills and abilities on the Exit Exam, and Jennifer most likely requires an

20

alternate assessment.

21 57. Jennifer’s mother, Susan Lyons, was told by a Paradise Unified School District official

22

that it is unclear whether the use of accommodations that Jennifer needs on the High

23

School Exit Exam will be permitted. The school official told Mrs. Lyons that although he

24

would recommend that Jennifer be allowed to use accommodations on the Exit Exam, he

25

did not know if the use of accommodations would invalidate her score.

26 58. Jennifer and her parents have not been provided any information about how to request an

27

accommodation for the Exit Exam, or how to appeal a denial of an accommodation

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

13

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page14 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

request. In April 2001, Jennifer’s mother contacted the Standards and Assessment

2

Division of the CALIFORNIA DEPARTMENT OF EDUCATION to ask how decisions

3

about accommodations on the Exit Exam would be made; she was told that the

4

CALIFORNIA DEPARTMENT OF EDUCATION was in the process of working on

5

guidelines regarding accommodations and that those guidelines were expected to be

6

presented to the State Board of Education in June 2001.

7 59. Jennifer’s IEP has not been modified to align with the curriculum tested on the High

8

School Exit Exam.

9 60. In 1999 the California legislature passed legislation directing the Superintendent of Public

10

Instruction to develop a high school exit examination in language arts and mathematics.

11

Pursuant to that legislation, Defendants hired a contractor to develop and field test the

12

High School Exit Exam over a period of several months in 2000.

13 61. As required by law, Defendants hired an independent consultant to evaluate the High

14

School Exit Exam. The independent evaluator concluded that the High School Exit

15

Exam should be delayed by at least one to two years because key components of the

16

testing system were not properly developed.

17 62. Specifically, the independent evaluator found that students with disabilities had not been

18

adequately prepared for the tests. The independent consultant found that students with

19

disabilities had not had their IEPs or Section 504 Plans modified to align with the

20

curriculum tested on the High School Exit Exam, and that therefore these students were

21

tested on material that they had never been taught. The consultant also found that

22

Defendants had gathered insufficient information regarding the use of accommodations

23

on the High School Exit Exam, and recommended that Defendants gather, review and

24

discuss more information on the appropriateness and effectiveness of testing

25

accommodations for students with disabilities, as well as the differential impact of the

26

Exit Exam on students with disabilities. The evaluator also noted that a greater

27

percentage of students with disabilities are likely to fail the Exit Exam than the student

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

14

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page15 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

population as a whole. The independent evaluator’s report is publicly available on the

2

Department of Education’s website at www.cde.ca.gov.

3 63. In the face of compelling evidence that the California High School Exit Exam is invalid

4

and discriminatory, and despite the recommendation by the expert independent consultant

5

to delay the implementation of the Exit Exam, Defendants nevertheless decided to

6

proceed with implementation of the High School Exit Exam and has already administered

7

the exam in March 2001 to ninth grade students. These students, who are members of the

8

Class of 2004, will be required to pass the High School Exit Exam to graduate from high

9

school.

10 64. Based on experience with other states, unless the Court intervenes, it is likely that over

11

eighty percent (80%) of otherwise qualified students with disabilities will fail the Exit

12

Exam with devastating effects on their lives.

13 65. The defects in the High School Exit Exam are due, at least in part, to the fact that

14

Defendants hastily developed and implemented the High School Exit Exam.

15 66. The entire test was developed and field tested over a period of just several months.

16 67. It is impossible to adequately design a high school graduation test in such a limited

17

amount of time. As noted by the independent consultant hired by Defendants to evaluate

18

the High School Exit Exam, tests like the High School Exit Exam are generally

19

developed over a period of years before they are implemented.

20 68. With regard to students with disabilities, this lead time is necessary in order to conduct

21

the essential groundwork that must be done to ensure that, at a minimum, (a) the test is

22

psychometrically valid and reliable for disabled students, (b) disabled students have been

23

taught the material tested on the exam, (c) alternate assessments have been developed for

24

students with disabilities, (d) students, parents, teachers and administrators are aware of

25

the requirements of the test and the participation options for students with disabilities, (e)

26

an accommodations policy has been developed and disseminated to students, parents,

27

teachers, administrators, and IEP and 504 Plan team members, (f) IEP and 504 forms

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

15

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page16 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

have been modified to include a checklist of options for participation in the test, and (g)

2

an appeals process has been set up by which students can appeal denials of

3

accommodations requests and other aspects of the assessment system.

4 69. None of these essential steps were taken with the California High School Exit Exam, and

5

Defendants are fully aware that the failure to take such steps has resulted in an Exit Exam

6

that discriminates against students with disabilities. The Exit Exam discriminates against

7

students with disabilities in at least the following multiple ways.

8 70. Defendants failed to develop an “alternate assessment” to the California High School Exit

9

Exam as is specifically required by IDEA.

10 71. IDEA was amended in 1997 to require all states to develop and implement “alternate

11

assessments” for any statewide assessment administered by the State. Under the 1997

12

amendments, these alternate assessments were to be in place by July of 2000. See 20

13

U.S.C. § 1412(a)(17)(A); 34 C.F.R. § 300.138. Defendants have been and remain fully

14

aware of their legal obligation to develop alternate assessments to the California High

15

School Exit Exam.

16 72. However, Defendants ignored this legal obligation and refused to develop any alternate

17

assessment to the California High School Exit Exam. Instead, Defendants require all

18

students to take the California High School Exit Exam, and do not allow any students to

19

opt out or be exempted from the Exam.

20 73. The requirement to provide an alternate assessment is essential to allowing students with

21

disabilities an equal opportunity with respect to statewide assessments such as the

22

California High School Exit Exam. Alternate assessments are required for any student

23

with a disability who is unable to participate in the standard assessment by virtue of his or

24

her disability.

25 74. By failing and refusing to develop and provide an alternate assessment to the California

26

High School Exit Exam, Defendants are intentionally discriminating against thousands of

27

students with disabilities for whom an alternate assessment, rather than the standard

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

16

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page17 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

California High School Exit Exam, is appropriate. These students will not be properly

2

assessed by the High School Exit Exam, and will not be able to accurately demonstrate

3

their knowledge, skills and abilities.

4 75. Plaintiff students require and are guaranteed under federal law reasonable

5

accommodations on the California High School Exit Exam to minimize the effects of

6

their disabilities.

7 76. Without such accommodations, Plaintiff students are subjected to discrimination on the

8

basis of their disabilities. Without reasonable accommodations on the Exam, Plaintiffs

9

will be unable to pass the Exam and therefore will be unable to graduate from high

10

school.

11 77. Defendants have created chaos and confusion by failing to formulate clear policies and

12

procedures regarding the provision of reasonable accommodations on the California High

13

School Exit Exam. This failure has led to ad hoc policymaking by Defendants, resulting

14

in innumerable different “policies” and “procedures.”

15 78. At the time of the administration of the Exam in March 2001, Defendant CALIFORNIA

16

DEPARTMENT OF EDUCATION still had not issued final regulations regarding the

17

policies and procedures for obtaining reasonable accommodations on the Exam.

18 79. Instead, Plaintiffs, their parents, and school administrators were either provided with no

19

information or guidance about the use of accommodations on the March 2001 Exam, or

20

were provided with conflicting, misleading, and confusing information about

21

accommodations.

22 80. Defendants adopted final regulations regarding accommodations for the High School Exit

23

Exam after the tests were administered in March 2001.

24 81. These final regulations are deficient and discriminatory in numerous ways, and have

25

continued to cause confusion among students, parents and administrators.

26 82. The regulations are deficient and discriminatory because they do not allow for students

27

with disabilities to use an accommodation on the Exit Exam that they may need, but that

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

17

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page18 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

is not listed in their IEP or 504 Plan, or that they have not used regularly during

2

instruction and classroom assessments. Many students with disabilities may require

3

accommodations on the Exit Exam that they have not previously required for classroom

4

assessments because of the different nature of the Exit Exam.

5 83. The regulations are also discriminatory because they do not allow for a disabled student

6

who does not have an IEP or 504 Plan to use accommodations on the Exit Exam. While

7

the majority of students eligible for accommodations are those with an IEP or 504 Plan,

8

there are students with disabilities who do not have either an IEP or 504 Plan who will

9

need accommodations on the Exit Exam. Other states, such as Massachusetts, have

10

recognized this and explicitly provide in their regulations that disabled students who do

11

not have IEPs or 504 Plans may request accommodations on statewide assessments.

12 84. In addition, the regulations do not provide for any procedure for students to request

13

accommodations on the Exit Exam, and therefore students, parents, and administrators do

14

not know what process is available for requesting accommodations, or what standards are

15

used in reviewing and granting these accommodation requests.

16 85. Similarly, the regulations do not provide for any appeals of denials of accommodation

17

requests. Thus, regardless of how arbitrary or incorrect a denial of an accommodation

18

request is, a student has no avenue to appeal that denial.

19 86. Defendants have failed to provide mechanisms, procedures, policies or personnel to

20

engage in the legally required interactive process with parents and students for the

21

fashioning of reasonable accommodations. Defendants have not provided adequate

22

training or information to schools and school districts regarding the individualized

23

assessment necessary to determine what accommodations a disabled student will require

24

on the Exit Exam.

25 87. Due to the lack of clear policies and procedures regarding obtaining accommodations on

26

the Exit Exam, Plaintiffs and their parents have received conflicting, confusing and

27

misleading information. As a result, parents of Plaintiff students (a) have been unable to

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

18

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page19 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

make informed decisions about how their child should approach or take the tests, (b) have

2

been misled about the procedures and consequences, (c) have been forced to make

3

decisions which may be unnecessarily damaging to their children’s future and/or (d) have

4

been discouraged from requesting the reasonable accommodations and alternate

5

assessments to which they are entitled as a matter of law.

6 88. As another consequence of the lack of policies and procedures for providing reasonable

7

accommodations on the California High School Exit Exam, Plaintiffs and their parents

8

have been unable to participate meaningfully in designing Plaintiffs’ Individualized

9

Education Programs or Section 504 Education Plans.

10 89. Although Defendants have stated that students will be provided reasonable

11

accommodations in accordance with their IEPs or 504 Plans, this simply has not occurred.

12

In many instances, the issue of reasonable accommodations on the California High

13

School Exit Exam was not even addressed at the student’s IEP or Section 504 meeting.

14

In other instances, although the issue of reasonable accommodations on the Exit Exam

15

may have been discussed at a student’s IEP or 504 Plan meeting, parents of Plaintiff

16

children were nevertheless unable to make informed choices regarding their child’s

17

education because school officials did not know what the policies and procedures were

18

regarding reasonable accommodations on the Exit Exam.

19 90. At various times, various school officials have made the following representations to

20

parents of Plaintiff children:

21

a. Plaintiff JULEUS CHAPMAN was told by a school official that he would not be

22

allowed to use any accommodations on the HSEE, despite the fact that he has an

23

Individualized Education Program that lists specific accommodations for him to

24

use on tests. Juleus was not provided any information about the procedure for

25

requesting reasonable accommodations for the Exit Exam, or about an appeals

26

process to appeal denials of accommodations requests. In addition, Juleus was not

27

given any information about an alternate assessment, although an alternate

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

19

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page20 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

assessment may be more appropriate for him than the High School Exit Exam.

2

b. Plaintiff RYAN SMILEY’s mother was told during his fall 2000 IEP meeting that

3

Ryan would be allowed full accommodations on all tests. KRISTA SMILEY

4

understood this statement to mean that Ryan would be provided with full

5

accommodations on the Exit Exam. However, when Ryan took the Exit Exam in

6

March 2001, he was provided only partial accommodations, and was denied

7

accommodations that he required for the Exit Exam. Prior to taking the Exit

8

Exam in March 2001, Ryan was not provided any information about the procedure

9

for requesting reasonable accommodations for the Exit Exam, or about an appeals

10

process to appeal denials of accommodations requests. In addition, Ryan was not

11

given any information about an alternate assessment, although an alternate

12

assessment may be more appropriate for him than the High School Exit Exam.

13

c. Plaintiff JENNIFER LYONS’ mother was told by school officials that it was

14

unclear whether Jennifer would be allowed to take the Exit Exam with the

15

accommodations specified in her IEP. The school officials told SUSAN LYONS

16

that although they would recommend that Jennifer be allowed to take the Exit

17

Exam with accommodations, they thought that the State might determine that the

18

accommodations invalidated the test. Jennifer’s mother then contacted the

19

CALIFORNIA DEPARTMENT OF EDUCATION to inquire about what

20

accommodations would be allowed on the Exit Exam. SUSAN LYONS was told

21

by that the CALIFORNIA DEPARTMENT OF EDUCATION was currently

22

working on guidelines regarding accommodations, and that those guidelines

23

would be presented to the State Board of Education in June 2001. Jennifer has

24

not been provided with any information about the procedure for requesting

25

accommodations, or any process for appealing denials of accommodation

26

requests. Jennifer believes that she requires an alternate assessment in order to

27

demonstrate her knowledge, skills, and abilities.

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

20

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page21 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 91. Due to the premature implementation of the California High School Exit Exam, students

2

with disabilities have not been given adequate time and notice to prepare for these new

3

testing requirements. Throughout their educations, Plaintiff children have been provided

4

with specific curriculum in accordance with their IEPs or 504 Plans that in many cases

5

deviates from the general curriculum. These IEPs and 504 Plans have not been modified

6

to be aligned with the subject matter tested on the California High School Exit Exam. As

7

noted by the independent consultant hired by Defendants to audit the High School Exit

8

Exam, the process of modifying IEPs and Section 504 Plans to align with the curriculum

9

tested on the High School Exit Exam can be lengthy and may require a lead time of many

10

years. Despite the fact that Defendants have already implemented the High School Exit

11

Exam, Defendants have not taken any steps whatsoever to ensure that Plaintiffs’ IEPs and

12

Section 504 Plans are modified to align with the Exam. In addition, Defendants have not

13

created any materials or programs for teaching children with disabilities what they need to

14

know to pass the California High School Exit Exam.

15 92. Defendants have not taken any steps to ensure appropriate remediation for disabled

16

students who do not pass the Exit Exam on their first attempt.

17 93. Without immediate relief from the Court, Plaintiffs will be irreparably harmed in that

18

they will be denied numerous academic, employment and professional opportunities, may

19

not graduate from high school, and will experience severe damage to their self-esteem

20

and emotional well-being.

21
22 94.
23
24 95.
25
26
27 96.
28

FIRST CLAIM (Violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.) Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 93 inclusive. Defendants’ acts and omissions alleged herein are in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., (“ADA”) and the regulations promulgated thereunder, 28 C.F.R. Part 35, et seq. Plaintiffs are qualified individuals with disabilities within the meaning of the ADA. 42

Complaint Juleus Chapman et al. v. California Department of Education et al.

21

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page22 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

U.S.C. § 12131(2).

2 97. Defendants CALIFORNIA DEPARTMENT OF EDUCATION and FREMONT

3

UNIFIED SCHOOL DISTRICT are public entities within the meaning of Title II of the

4

ADA and the regulations promulgated thereunder. 42 U.S.C. § 12131(1)(B).

5 98. In violation of the ADA, Defendants have failed to evaluate their policies and practices to

6

ensure that these policies and procedures do not exclude or limit the participation of

7

individuals with disabilities in their programs and activities. 28 C.F.R. § 35.105.

8 99. In violation of the ADA, Defendants have refused to develop and provide alternate

9

assessments to those Plaintiffs who require an alternate assessment by virtue of their

10

disability. 28 C.F.R. § 35.130.

11 100. In violation of the ADA, Defendants have excluded Plaintiff children from participation

12

in and denied them the benefits of the services, programs or activities of a public entity

13

solely on the basis of disability. Defendants have further violated the ADA by otherwise

14

subjecting Plaintiff children to discrimination based upon disability. 42 U.S.C. § 12132;

15

28 C.F.R. § 35.130(a).

16 101. Defendants have violated the ADA by denying Plaintiff children the opportunity to

17

participate in or benefit from aids, benefits and services provided by the public entities,

18

and by providing Plaintiff children with the opportunity to participate in or benefit from

19

aids, benefits or services that are not equal to those afforded non-disabled children who

20

attend California’s public schools. 28 C.F.R. § 35.130(b)(1)(i)-(ii).

21 102. Defendants have violated the ADA by providing Plaintiff children with benefits that are

22

different and/or not as effective in affording equal opportunity to obtain the same results,

23

to gain the same benefits, or to reach the same levels of achievement as that provided to

24

others. 28 C.F.R. § 35.130(b)(1)(iii)(iv).

25 103. Defendants have violated the ADA by utilizing criteria or methods of administration that

26

have the effect of subjecting Plaintiff children to discrimination on the basis of disability

27

or that have the purpose or effect of defeating or substantially impairing accomplishment

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

22

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page23 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

of the objectives of the public entity’s program with respect to individuals with

2

disabilities. 28 C.F.R. § 35.130(b)(3).

3 104. Defendants have violated the ADA by administering a certification program in a manner

4

that subjects Plaintiff children to discrimination on the basis of disability. 28 C.F.R. §

5

35.130(b)(6).

6 105. Defendants have violated the ADA by failing to make reasonable modifications in

7

policies, practices or procedures when the modifications are necessary to avoid

8

discrimination on the basis of disability. 28 C.F.R. § 35.130(7).

9 106. Defendants have violated the ADA by imposing eligibility requirements that screen out or

10

tends to screen out an individual with a disability or any class of individuals with

11

disabilities from fully and equally enjoying any service, program, or activity offered by

12

Defendants. 28 C.F.R. § 130.(b)(8).

13 107. WHEREFORE, Plaintiffs request relief as set forth below.

14
15 108.
16
17 109.
18
19 110.
20
21
22 111.
23
24 112.
25
26
27
28

SECOND CLAIM (Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.) Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 107 inclusive. Plaintiffs are qualified individuals with disabilities within the meaning the Rehabilitation Act of 1973. Defendants CALIFORNIA DEPARTMENT OF EDUCATION and FREMONT UNIFIED SCHOOL DISTRICT are the recipients of federal funds sufficient to invoke the coverage of the Rehabilitation Act of 1973. Defendants have intentionally discriminated against Plaintiffs on the basis of their disabilities in violation of the Rehabilitation Act. 29 U.S.C. § 794. Solely by reason of their disabilities, Plaintiffs have been, and continue to be, excluded from participation in, denied the benefits of, and subjected to discrimination in their attempts to receive, full and equal access to the programs, services and activities offered by Defendants in violation of the Rehabilitation Act. 29 U.S.C. § 794.

Complaint Juleus Chapman et al. v. California Department of Education et al.

23

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page24 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 113. WHEREFORE, Plaintiffs request relief as set forth below.

2

THIRD CLAIM

(Violation of Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.)

3

114. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 113

4

inclusive.

5

115. Defendants have violated IDEA by failing to develop adequate regulations for the

6

provision of appropriate accommodations to students with disabilities on the High School

7

Exit Exam. 20 U.S.C. § 1412(a)(17)(A).

8

116. Defendants have violated IDEA by failing to develop guidelines for the participation of

9

children with disabilities in alternate assessments for those disabled students who cannot

10

participate in the High School Exit Exam. 20 U.S.C. § 1412(a)(17)(A)(I).

11

117. Defendants have violated IDEA by not ensuring that the High School Exit Exam has been

12

validated for the specific purpose for which it is used. 20 U.S.C. § 1414(b)(3)(B)(I).

13

118. Defendants have adopted a policy of discrimination based solely upon the disabilities of

14

school children, resulting in severe interference with and deprivation of Plaintiffs’

15

fundamental right to a free and appropriate public education which is secured to them by

16

the laws of the United States and specifically pursuant to IDEA. 20 U.S.C. § 1401(8).

17

119. No administrative remedy exists under IDEA to address these wholesale violations by the

18

CALIFORNIA DEPARTMENT OF EDUCATION. Accordingly, Plaintiffs are not

19

required to exhaust the administrative procedures set forth in IDEA.

20

120. WHEREFORE, Plaintiffs request relief as set forth below.

21

FOURTH CLAIM

22

(Violation of Due Process Clause of United States Constitution)

23 121. Plaintiffs incorporate by reference the allegations in paragraphs 1 through 120 inclusive.

24 122. The actions of Defendants have violated and continue to violate the Fourteenth

25

Amendment to the United States Constitution in that Defendants have failed to provide

26

Plaintiffs and their parents with adequate notice of the testing requirements for the

27

California High School Exit Exam. Due to the lack of adequate notice, parents and

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

24

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page25 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

educators have not had sufficient time to consider and determine whether and how the

2

skills tested on the statewide tests should be addressed in a child’s IEP or Section 504

3

Plan. California schools have never taught or trained children with disabilities many of

4

the skills and content currently being tested on the California High School Exit Exam.

5

Defendants have taken no steps to ensure that disabled students’ IEPs or Section 504

6

Plans are modified to align with the curriculum and skills tested on the Exit Exam.

7

Instead, Defendants have embarked upon a one-test-fits-all, test-first-provide-education-

8

later procedure without conducting adequate research into the far reaching consequences

9

for students with disabilities, which effectively makes it impossible for these students to

10

pass the required exams.

11 123. The actions of Defendants have violated and continue to violate the Fourteenth

12

Amendment to the United States Constitution because the Exit Exam, as currently

13

formulated and administered, lacks both instructional and curricular validity, and has not

14

been shown to be valid for students with disabilities.

15 124. Defendants have violated and continue to violate the Fourteenth Amendment to the

16

United States Constitution by failing to create and implement clear, consistent and

17

understandable policies and procedures regarding provision of reasonable

18

accommodations on the Exit Exam.

19 125. Defendants have violated and continue to violate the Fourteenth Amendment to the

20

United States Constitution by failing to establish a procedure for parents and students to

21

challenge even the most arbitrary conduct with regard to the denials of reasonable

22

accommodations on the California High School Exit Exam.

23 126. The actions of Defendants have violated and continue to violate the Fourteenth

24

Amendment to the United States Constitution in that the California High School Exit

25

Exam is fundamentally unfair because many students with disabilities will not be

26

accurately assessed by the Exit Exam because they require an alternate assessment.

27

Defendants have refused, in violation of federal law, to develop alternate assessments to

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

25

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page26 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

the California High School Exit Exam.

2 127. WHEREFORE, Plaintiffs request relief as set forth below.

3

FIFTH CLAIM

4

(Declaratory Relief, 28 U.S.C. §§ 2201, 2202)

5 128. Plaintiffs incorporate by reference herein the allegations in paragraphs 1 through 127

6

inclusive.

7 129. Plaintiffs contend, and are informed and believe that Defendants deny that the

8

CALIFORNIA DEPARTMENT OF EDUCATION has failed to comply with applicable

9

law prohibiting discrimination against persons with disabilities and is in violation of the

10

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; Section 504 of the

11

Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.; the Individuals with Disabilities

12

Education Act, and the United States Constitution.

13 130. A judicial declaration is necessary and appropriate at this time in order that each of the

14

parties may know his or her respective rights and duties and act accordingly.

15 131. WHEREFORE, Plaintiffs request relief as set forth below.

16

RELIEF REQUESTED

17

WHEREFORE, Plaintiffs pray for relief as follows:

18 1. A determination by this Court that this action may be maintained as a class action.

19 2. The issuance of a declaratory judgment that Defendants have violated the Individuals

20

with Disabilities Education Act; the Americans with Disabilities Act; the Rehabilitation

21

Act of 1973; and the United States Constitution.

22 3. The issuance of an injunction ordering Defendants to: develop and provide alternate

23

assessments to all disabled students who require such an assessment; issue regulations

24

and establish a procedure by which students and their parents can request reasonable

25

accommodations on the Exit Exam, as well as a standard for consideration and granting

26

of such requests; establish an appeals process by which students can appeal denials of

27

accommodations requests; and take all steps necessary to ensure that the High School

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

26

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page27 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

Exit Exam is valid and reliable for students with disabilities.

2 4. Retention of jurisdiction by this Court until such time as the Court is satisfied that

3

Defendants’ unlawful policies, practices, acts, and omissions complained of herein have

4

been remedied and will not recur.

5 5. An award of reasonable attorneys’ fees and costs.

6 6. Such other and further relief as the Court deems just and proper.

7 DATE: May 8, 2001

8

Respectfully submitted,

9

10

By: ___________________________

11

SID WOLINSKY

DISABILITY RIGHTS ADVOCATES

12

449 15th Street, Suite 303

Oakland, California 94612

13

Telephone: (510) 451-8644

Facsimile: (510) 451-8511

14

TTY:

(510) 451-8716

Attorney for Plaintiffs

15

16

17

By: ____________________________

MORRIS RATNER

18

LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP

19

Embarcadero Center West

275 Battery Street, 30th Floor

20

San Francisco, CA 94111

Telephone: (415) 956-1000

21

Facsimile: (415) 956-1008

Attorney for Plaintiffs

22

23

24

25

26

27

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

27

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page28 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

DEMAND FOR JURY TRIAL

2

Plaintiffs hereby demand a trial by jury.

3 DATE: May 8, 2001

4

By: ___________________________

5

SID WOLINSKY

DISABILITY RIGHTS ADVOCATES

6

449 15th Street, Suite 303

Oakland, California 94612

7

Telephone: (510) 451-8644

Facsimile: (510) 451-8511

8

TTY:

(510) 451-8716

Attorneys for Plaintiffs

9

10

11

12

By: ____________________________

MORRIS RATNER

13

LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP

14

Embarcadero Center West

275 Battery Street, 30th Floor

15

San Francisco, CA 94111

Telephone: (415) 956-1000

16

Facsimile: (415) 956-1008

Attorney for Plaintiffs

17

18

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS

19

Pursuant to Civil L.R. 3-16, the undersigned certify that as of this date, other than the

20 named parties, there is no such interest to report.

21

22

23

By: ___________________________

SID WOLINSKY

24

DISABILITY RIGHTS ADVOCATES

449 15th Street, Suite 303

25

Oakland, California 94612

Telephone: (510) 451-8644

26

Facsimile: (510) 451-8511

TTY:

(510) 451-8716

27

Attorney for Plaintiffs

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

28

Case3:01-cv-01780-CRB Document1 Filed05/08/01 Page29 of 29

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

2

By: ____________________________

MORRIS RATNER

3

LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP

4

Embarcadero Center West

275 Battery Street, 30th Floor

5

San Francisco, CA 94111

Telephone: (415) 956-1000

6

Facsimile: (415) 956-1008

Attorney for Plaintiffs

7

8 C:\Program Files\Adobe\Acrobat 4.0\Acrobat\plug_ins\OpenAll\Transform\temp\complaint.wpd

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint Juleus Chapman et al. v. California Department of Education et al.

29

 
 Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page1 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 SID WOLINSKY (Bar No. 33716)

MELISSA W. KASNITZ (Bar No. 162679)

2 RHODA BENEDETTI (Bar No. 192606)

DISABILITY RIGHTS ADVOCATES

3 449 15th Street, Suite 303

Oakland, California 94612

4 Telephone: (510) 451-8644

Facsimile: (510) 451-8511

5 TTY:

(510) 451-8716

Email:

general@dralegal.org

6

ELIZABETH J. CABRASER (Bar No. 83151)

7 MORRIS A. RATNER (Bar No. 157554)

MARY REITEN (Bar No. 203412)

8 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

Embarcadero Center West

9 275 Battery Street, 30th Floor

San Francisco, CA 94111

10 Telephone: (415) 956-1000

Facsimile: (415) 956-1008

11 Email:

mratner@lchb.com

12 Attorneys for Plaintiffs

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 JULEUS CHAPMAN, by his guardian ad

CASE NO. C-01-01780 CRB/JCS

17

litem MONIQUE CHAPMAN; RYAN SMILEY, by his guardian ad litem KRISTA

CLASS ACTION

18

SMILEY; JENNIFER LYONS, by her guardian ad litem SUSAN LYONS, on behalf FIRST AMENDED COMPLAINT

19

of themselves and all individuals similarly situated, LEARNING DISABILITIES

DEMAND FOR JURY TRIAL

20 ASSOCIATION OF CALIFORNIA,

21 v.

Plaintiffs,

22 CALIFORNIA DEPARTMENT OF

23

EDUCATION; CALIFORNIA BOARD OF EDUCATION; DELAINE EASTIN, in her

24

official capacity as Superintendent of Public Instruction in California; FREMONT

25

UNIFIED SCHOOL DISTRICT; SHARON JONES, Superintendent of Fremont Unified

26 School District,

27

Defendants.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

1

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page2 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

INTRODUCTION

2 1. This action arises out of intentional discrimination by Defendant CALIFORNIA

3

DEPARTMENT OF EDUCATION (“CDE”), Defendant CALIFORNIA BOARD OF

4

EDUCATION (“CBE”), and Defendant Delaine Eastin in her official capacity as

5

Superintendent of Public Instruction against hundreds of thousands of students with

6

disabilities in the California public school system. Defendants CDE, CBE, and EASTIN

7

(collectively referred to herein as “STATE DEFENDANTS”) are, without adequate

8

preparation or safeguards, hastily forcing the California High School Exit Exam

9

(hereafter referred to as the “Exit Exam” or “CAHSEE”) upon these disabled students,

10

destroying and ignoring their educational attainments and self esteem, flagrantly

11

violating their rights, and damaging their academic, professional and employment

12

opportunities forever. Because of Defendants’ refusal to obey federal law, and

13

Defendants’ almost total disregard of the educational interest of children with disabilities,

14

over 90% of public school children with disabilities who took the Exit Exam failed it.

15 2. Before forcing a high-stakes standardized high school exit exam on children with

16

disabilities, Defendants were required, under federal and state law, at a minimum, (a) to

17

have formulated and have in place a reasonable accommodations policy, (b) to have

18

developed and conducted alternate assessments for those disabled children who need

19

them, (c) to have established the validity of using the CAHSEE for high-stakes

20

consequences (such as a prerequisite to graduation) for individual students, (d) to

21

establish and affirmatively demonstrate the curricular and instructional validity of the test

22

(i.e., that disabled students are not being tested on matters they never had a chance to

23

learn), (e) to refrain from using the results of a single test as the sole determinant of

24

whether a child graduates, (f) to have a procedure available for requesting

25

accommodations and appealing denials of accommodation requests, if necessary, (g) to

26

disseminate, in timely fashion, clear information about all of the forgoing to all interested

27

parents, teachers and administrators in the State so that they can make rational decisions

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

2

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page3 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

about children’s education, and (h) allow a sufficient period of time between the creation

2

of the test (and all of its safeguards) and the actual implementation of the test.

3 3. Although the forgoing safeguards are constitutional requirements, as well as mandated by

4

students, Defendants have not fulfilled any of them.

5 4. In formulating and administering the CAHSEE, STATE DEFENDANTS have thus failed

6

and refused to take into account the needs of children with disabilities. As a result, the

7

new Exit Exam discriminates against children with disabilities in numerous ways.

8 5. For example, STATE DEFENDANTS are required under federal law to provide an

9

“alternate assessment” to the CAHSEE, as a way of allowing children whose disability

10

prevents them from demonstrating their mastery of content standards on the CAHSEE to

11

show their abilities. In flagrant violation of that requirement, STATE DEFENDANTS

12

have stated that they will not develop an alternate assessment, and instead are requiring

13

all students to take the CAHSEE, regardless of whether an alternate assessment would be

14

a more appropriate measure of the students’ knowledge, skills and abilities. STATE

15

DEFENDANTS are fully aware of their failure to fulfill their legal obligation to provide

16

an alternate assessment to disabled students. Many students with disabilities should

17

participate in an alternate assessment rather than the CAHSEE because an alternate

18

assessment is the only method by which to provide an accurate measure of the students’

19

abilities and skills.

20 6. In addition, STATE DEFENDANTS have refused to establish any procedures for

21

students with disabilities to request reasonable accommodations on the CAHSEE.

22

Various steps to develop such procedures have been initiated, withdrawn, and changed

23

repeatedly, even as the Exam has been adminstered, and as plans continue for it to be re-

24

administered. As a result, students, parents, and school administrators do not know what

25

process should be followed to request reasonable accommodations, and there are no

26

uniform standards for consideration of, or granting of, accommodation requests.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

3

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page4 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 7. STATE DEFENDANTS have also failed to establish any procedure whatever to review

2

denials of requests for reasonable accommodations. Thus, students who are denied

3

accommodations that they need on the CAHSEE are unable to appeal these decisions,

4

regardless of how incorrect or arbitrary the denials may be.

5 8. The CAHSEE further unfairly discriminates against students with disabilities because the

6

children are being tested on material which they have never been taught. Thus, these

7

children have not been prepared by their administrators or teachers to take the Exit Exam.

8

Throughout their educations, many of these children have studied an individualized

9

curriculum set forth in their Individualized Education Programs (IEPs) or “Section 504"

10

education plans. Now, on the CAHSEE these children are tested on material that they

11

have never been taught.

12 9. As noted by an independent consultant hired by STATE DEFENDANTS to evaluate the

13

CAHSEE, the process of aligning students’ IEPs or Section 504 plans to match the

14

curriculum tested on the exam is a lengthy one that requires a lead time of at least several

15

years. Despite the independent consultant’s recommendation that STATE

16

DEFENDANTS institute measures to ensure that disabled students’ IEPs and Section 504

17

Plans are modified to align with the curriculum tested on the CAHSEE, Defendants have

18

taken no such steps.

19 10. The CAHSEE has two parts: English and mathematics. Both must be passed in order to

20

graduate. The English portion of the test, which includes multiple choice questions and

21

two essays, addresses State Board of Education standards through grade ten.

22 11. The mathematics test covers arithmetic, statistics, data analysis and probability, number

23

sense, measurement and geometry, mathematical reasoning, and algebra.

24 12. Students in the class of 2004 were permitted to take the test on a voluntary basis in the

25

spring of 2001, when they were in the ninth grade.

26

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

4

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page5 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 13. Students in the class of 2004 who did not pass the CAHSEE in 2001, and all students in

2

all subsequent classes, will be required to take the test in tenth grade, and then every year

3

thereafter (up to three times per year) until they pass both portions of the test.

4 14. The consequences to students of failing to pass the CAHSEE are profound. All public

5

school students beginning with the Class of 2004 are required to pass the CAHSEE in

6

order to graduate from high school and receive a diploma. Regardless of how bright and

7

talented students are, how hard they work, or how high achieving they may be, students

8

who do not pass the exam will not graduate from high school, will not receive a regular

9

diploma, and will be severely disadvantaged in applying for employment and for college

10

admission.

11 15. Without the proper accommodations (or alternative assessments, if appropriate), and

12

without modification of their specialized curriculum to include the subject matter being

13

tested, it is likely that a great majority of California students with disabilities, because of

14

their disabilities, will never be able to pass the CAHSEE, no matter how many times the

15

test is given to them, and therefore will not be able to graduate from high school.

16

Instead, these students will receive an inferior “Certificate of Attendance” or “Certificate

17

of Completion” that is not equivalent to a high school diploma.

18 16. By requiring children with disabilities to take discriminatory and unfair tests with high

19

stakes consequences and no alternate assessments, STATE DEFENDANTS have created

20

a dual track system of public education in which otherwise qualified students with

21

disabilities will be relegated to the lower tier and prevented from pursuing academic,

22

professional and employment opportunities simply because of their disabilities.

23 17. Although they are fully aware of the defects of the CAHSEE as it affects students with

24

disabilities, STATE DEFENDANTS have nevertheless chosen to proceed with the test,

25

and have already administered the exam in Spring, 2001. In contrast, other states have

26

taken and are taking extensive steps to ensure that their statewide assessment systems do

27

not discriminate against students with disabilities.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

5

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page6 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 18. For example, Oregon recently settled a lawsuit and agreed to adopt the recommendations

2

of a national panel of experts commissioned to study Oregon’s testing system and to

3

evaluate whether a similar high stakes testing system implemented there discriminated

4

against students with disabilities. Under the settlement, Oregon will (a) develop alternate

5

assessments for disabled students, (b) allow extensive accommodations for disabled

6

students, (c) provide comprehensive information and training to parents, teachers,

7

administrators, and IEP and 504 Plan team members regarding the assessment system and

8

participation options for students with disabilities, (d) ensure that the IEP and 504 teams

9

individually assess every disabled student to determine how that student should

10

participate in the assessment system, (e) institute a problem resolution and appeals

11

process by which students can appeal decisions regarding accommodation requests and

12

participation in an alternate assessment, and (f) conduct ongoing research regarding

13

accommodations and the validity and reliability of the assessment system for students

14

with disabilities.

15 19. Similarly, Massachusetts recently revised its regulations concerning its high school exit

16

exam, the Massachusetts Comprehensive Assessment System (“MCAS”), in response to

17

concerns raised by disability advocacy groups that the test discriminated against disabled

18

students. These new regulations provide that IEP and 504 teams will determine whether

19

a disabled student should participate in an alternate assessment or a standard assessment,

20

and, if a student takes the standard assessment, what accommodations he or she should

21

use on the tests. Unlike California, the list of accommodations available on the test is

22

extensive. The regulations provide specific guidance to IEP and 504 teams regarding the

23

factors to be considered when making decisions about how disabled students participate

24

in the MCAS. The regulations also explicitly note that disabled students who do not have

25

an IEP or 504 Plan may request accommodations.

26 20. Unlike Oregon and Massachusetts, STATE DEFENDANTS have knowingly disregarded

27

concerns, raised by their own expert consultant, that the Exit Exam discriminates against

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

6

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page7 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

disabled students. Additionally, prior to instituting litigation Plaintiffs on numerous

2

occasions contacted the Governor’s office to inform the State of the multiple deficiencies

3

in the High School Exit Exam, and to seek a constructive resolution to the problem.

4

STATE DEFENDANTS have never provided a substantive response to Plaintiffs, and as

5

a result, Plaintiffs were forced to file this lawsuit in order to protect the rights of students

6

with disabilities.

7 21. Without immediate relief from the Court, Plaintiff students and children similarly

8

situated will be irreparably harmed in that they will be denied numerous academic,

9

professional and employment opportunities, may not graduate from high school, and will

10

experience severe damage to their self-esteem and emotional well-being.

11

JURISDICTION

12 22. The Court has subject matter jurisdiction over Plaintiffs’ federal law claims under 28

13

U.S.C. §§ 1331 and 1343.

14 23. The Court has pendant and supplemental jurisdiction over Plaintiffs’ state law claims.

15 24. The Court has jurisdiction to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201

16

and 2202.

17 25. Plaintiffs are not required to exhaust the administrative procedures set forth in the

18

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., because

19

they are challenging policies and practices of general applicability that are contrary to

20

numerous federal laws (including IDEA) and because Plaintiffs cannot obtain adequate

21

relief through administrative remedies.

22 26. Venue is proper in this Court under 28 U.S.C. § 1391(b). All Defendants reside in the

23

State of California, and Defendants FREMONT UNIFIED SCHOOL DISTRICT and

24

SHARON JONES reside in the Northern District of California. Moreover, a substantial

25

part of the events giving rise to this action occurred in the Northern District of California.

26

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

7

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page8 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

INTRADISTRICT ASSIGNMENT

2 27. Assignment of this action to either the San Francisco or Oakland Divisions is proper

3

because a substantial part of the events or omissions which give rise to Plaintiffs’ claims

4

occurred in Alameda County.

5

THE PARTIES

6 28. Named Plaintiff Juleus Chapman is a public school student in the class of 2005 with

7

severe dyslexia. Juleus attends Hopkins Jr. High School in Fremont, California and will

8

be required to take the CAHSEE beginning in 10th grade, and repeating it until he passes

9

or completes the 12th grade. He must pass the CAHSEE in order to graduate with a

10

diploma. Juleus’ mother, Monique Chapman, has previously filed a petition with the

11

Court to act as his guardian ad litem.

12 29. Named Plaintiff RYAN SMILEY is a public school student in the class of 2004 with

13

dyslexia and dysgraphia. Ryan attends Crescenta Valley High School in La Crescenta,

14

California, and took the CAHSEE in March 2001. Ryan did not pass the CAHSEE, and

15

he will be obligated to take the exam again each year until he passes or completes the 12th

16

grade. He must pass the CAHSEE in order to graduate with a diploma. Ryan’s mother,

17

Krista Smiley, has previously filed a petition with the Court to act as his guardian ad

18

litem.

19 30. Named Plaintiff JENNIFER LYONS is a public school student in the class of 2005 with

20

dyslexia. Jennifer attends Mountain Ridge Middle School in Magalia, California, and

21

will be required to take the CAHSEE beginning in 10th grade, and repeating it until she

22

passes or completes the 12th grade. She must pass the CAHSEE in order to graduate with

23

a diploma. Jennifer’s mother, Susan Lyons, has previously filed a petition with the

24

Court to act as her guardian ad litem.

25 31. Organizational Plaintiff LEARNING DISABILITIES ASSOCIATION OF

26

CALIFORNIA (“LDA-CA”) is a 501(c)(3) non-profit volunteer organization founded in

27

1960. The purpose of LDA-CA is to promote awareness, increase knowledge, and

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

8

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page9 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

support education in a manner that optimizes fulfillment of the individual potential of

2

children and adults with learning disabilities. This is accomplished through outreach,

3

advocacy, referrals, and collaboration. LDA-CA currently serves over 2,000 parent,

4

professional, and adult members with learning disabilities through publications,

5

conferences, and 12 regional locations and a State office in Sacramento. The

6

membership of LDA-CA includes parents of Plaintiff students, including MONIQUE

7

CHAPMAN, KRISTA SMILEY, and SUSAN LYONS. LDA-CA sues on its own behalf

8

and on behalf of its members.

9 32. Defendant CALIFORNIA DEPARTMENT OF EDUCATION is the department of state

10

government responsible for administering and enforcing laws related to education. The

11

CALIFORNIA DEPARTMENT OF EDUCATION is a public entity within the meaning

12

of Title II of the Americans with Disabilities Act and other applicable laws. The

13

CALIFORNIA DEPARTMENT OF EDUCATION receives federal financial assistance

14

from the United States Department of Education and is therefore covered by the

15

requirements of Section 504 of the Rehabilitation Act of 1973. The CALIFORNIA

16

DEPARTMENT OF EDUCATION is a state educational agency and is therefore covered

17

by the requirements of the Individuals with Disabilities Education Act.

18 33. Defendant CALIFORNIA BOARD OF EDUCATION is the policy making body for

19

California public school education. The CALIFORNIA BOARD OF EDUCATION is a

20

public entity within the meaning of Title II of the Americans with Disabilities Act and

21

other applicable laws. The CALIFORNIA BOARD OF EDUCATION receives federal

22

financial assistance from the United States Department of Education and is therefore

23

covered by the requirements of Section 504 of the Rehabilitation Act of 1973. The

24

CALIFORNIA BOARD OF EDUCATION is a state educational agency and is therefore

25

covered by the requirements of the Individuals with Disabilities Education Act.

26

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

9

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page10 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 34. Defendant DELAINE EASTIN, sued in her official capacity, is the State Superintendent

2

of Public Instruction in California and the ex officio Director of Education for the

3

CALIFORNIA DEPARTMENT OF EDUCATION.

4 35. Defendants CALIFORNIA DEPARTMENT OF EDUCATION, CALIFORNIA BOARD

5

OF EDUCATION and DELAINE EASTIN are each responsible for the administration of

6

the CAHSEE, including, but not limited to, formation, use and ensuring its validity with

7

respect to disabled children, creating a policy of offering reasonable accommodations and

8

creating and conducting alternate assessments.

9 36. Defendant FREMONT UNIFIED SCHOOL DISTRICT is a local government entity

10

within the meaning of Title II of the ADA, a recipient of federal financial assistance

11

within the meaning of Section 504 of the Rehabilitation Act, and a local educational

12

agency covered by the Individuals with Disabilities Education Act. FREMONT

13

UNIFIED SCHOOL DISTRICT has at least fifty employees.

14 37. Defendant SHARON JONES is Superintendent of FREMONT UNIFIED SCHOOL

15

DISTRICT. She is being sued in her official capacity.

16 38. References in this complaint to STATE DEFENDANTS include Defendant

17

CALIFORNIA DEPARTMENT OF EDUCATION, Defendant CALIFORNIA BOARD

18

OF EDUCATION and Defendant DELAINE EASTIN in her official capacity as

19

Superintendent of Public Instruction for the State of California.

20 39. References in this complaint to DISTRICT DEFENDANTS includes Defendant

21

FREMONT UNIFIED SCHOOL DISTRICT and Defendant SHARON JONES in her

22

official capacity as Superintendent of the Fremont Unified School District.

23 40. References in this Complaint to Defendants, unless otherwise stated, shall be deemed to

24

refer to all defendants, and to each of them.

25 41. Plaintiffs allege that Defendants are jointly and severally liable for the claims raised in

26

this complaint.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

10

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page11 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

CLASS ALLEGATIONS

2 42. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs bring this

3

action on their own behalf and on behalf of all persons similarly situated. The class

4

which these Plaintiffs represent is composed of all students with disabilities who are or

5

will in the future be required to take the CAHSEE. The class is sometimes hereafter

6

referred to as “Plaintiff students” or “Plaintiff children.”

7 43. The persons in the class are so numerous that joinder of all such persons is impracticable.

8 44. There are numerous issues of fact and questions of law common to the class. These

9

common factual issues include, but are not limited to, the following:

10

a. Defendants’ failure to develop an alternate assessment to the CAHSEE.

11

b. Defendants’ development and administration of the CAHSEE, which all public

12

high school students are required to pass to graduate from high school with a

13

diploma.

14

c. Defendants’ failure to establish a fair and lawful policy of providing reasonable

15

accommodations.

16

d. Defendants’ failure to establish the validity of using the test as a prerequisite to

17

graduation for students with disabilities.

18

e. Defendants’ failure to adopt regulations specifying either a process for requesting

19

accommodations or a standard for consideration of, and granting of, such

20

requests.

21

f. Defendants’ failure to establish an appeals process by which students can appeal

22

denials of accommodations requests.

23

g. Defendants’ failure to provide training and guidance to teachers, administrators,

24

and IEP and 504 Plan team members regarding the CAHSEE and participation

25

options for students with disabilities.

26

h. Defendants’ failure to modify the IEPs or 504 Plans of disabled students to align

27

with the curriculum tested on the CAHSEE.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

11

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page12 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

i. Defendants’ administration of the CAHSEE without sufficient notice to students

2

with disabilities and their parents.

3

j. Defendants’ failure to follow established and sound psychometric standards by

4

using performance on a single test as the sole determinate of whether a child with

5

a disability graduates.

6 44. The common questions of law include, but are not limited to, the following:

7

a. Does Defendants’ failure and refusal to provide an alternate assessment to the

8

CAHSEE violate state or federal law?

9

b. Does Defendants’ failure to modify disabled students’ IEPs and Section 504 plans

10

to align with the curriculum tested on the CAHSEE violate state or federal law?

11

c. Does Defendants’ failure to establish any procedure for consideration of, or

12

granting of, requests for reasonable accommodations on the CAHSEE violate

13

state or federal law?

14

d. Does Defendants’ failure to establish any procedure for appealing denials of

15

requests for reasonable accommodations violate state or federal law?

16

e. Is the CAHSEE an invalid test for assessing the knowledge, skills and abilities of

17

students with disabilities, in violation of the due process protections of the United

18

States Constitution?

19

f. Have students with disabilities been provided with an adequate opportunity to

20

learn the material tested on the CAHSEE as required by the due process

21

protections of the United States Constitution?

22

g. Is the CAHSEE, used as a prerequisite to graduation, an invalid test for assessing

23

the knowledge, skills and abilities of students with disabilities, in violation of the

24

Equal Protection provisions of the California Constitution?

25 45. The claims of the named Plaintiffs are typical of those of the class, and named Plaintiffs

26

will fairly and adequately represent the interests of the class. Plaintiffs have engaged

27

competent counsel to assist them in prosecuting their claims.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

12

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page13 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 46. Defendants have acted and refused to act on grounds generally applicable to the class,

2

thereby making appropriate final injunctive relief and/or corresponding declaratory relief

3

with respect to the class as a whole.

4 47. References to Plaintiffs shall be deemed to include the named plaintiffs and each member

5

of the class.

6

FACTUAL ALLEGATIONS

7 48. Named Plaintiffs, who attend public schools throughout California, are students with

8

disabilities protected by federal law. The organizational plaintiff includes as members

9

numerous additional public school students with disabilities and their parents or

10

guardians. There are hundreds of thousands of disabled children who attend California’s

11

public schools and who will be required to take the High School Exit Exam and pass it in

12

order to graduate from high school with a diploma.

13 49. By virtue of their disabilities, many Plaintiff students have either a legally mandated

14

Individualized Education Program (“IEP”) pursuant to the Individuals with Disabilities In

15

Education Act (“IDEA”), or a Section 504 Education Plan (“504 Plan”) pursuant to

16

Section 504 of the Rehabilitation Act of 1973. These plans are required by law to be

17

created through an interactive process between educators, parents and their children, and

18

are supposed to specify a child’s individual needs, including whether and how a student

19

will participate on statewide assessments such as the CAHSEE.

20 50. Some students with disabilities do not have either an IEP or a Section 504 Plan.

21

Learning Disabilities

22 51. People with learning disabilities span the intelligence spectrum and many children with

23

learning disabilities are of very high intelligence. Learning disabilities are the result of

24

permanent neurological dysfunction or information processing disruptions that result in

25

limited, unexpected, and usually intractable impediments in the ability to learn one or

26

more basic skills taught through traditional formal education. Many people with learning

27

disabilities work far harder than others in order to compensate for their disabilities.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

13

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page14 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 52. There are several types of learning disabilities. Dyslexia, a particular learning disability,

2

results from a neurological difference in processing phonemes, the basic unit of language,

3

and can be seen in brain scans as early as infancy. Dyslexia impairs the ability to process

4

language. A dyslexic individual may have difficulty reading, developing age/grade

5

appropriate vocabulary, handwriting, spelling, taking notes, and memorizing rote and

6

sequential facts, steps and information. Dysgraphia, another specific learning disability,

7

is a neurocognitive, neuromotor language-based processing disorder often, but not always

8

associated with dyslexia. Dysgraphia impairs an individual’s ability to write legibly in a

9

defined space over a normal timeframe. Dyscalculia is a mathematical learning disability

10

in which a person has significant difficulty grasping math concepts and acquiring and

11

retaining math computation and problem solving skills.

12

Named Plaintiffs’ Experiences

13 53. Named Plaintiff Juleus Chapman has dyslexia, a specific type of learning disability.

14

Juleus lives in Fremont, California, and he attends public schools in that city. He is in the

15

class of 2005. Juleus will be required to take and pass the CAHSEE to obtain a diploma.

16 54. Juleus has an Individualized Education Program that specifies he is allowed to use certain

17

testing accommodations due to his dyslexia. These testing accommodations include,

18

inter alia, extended time, use of a laptopcomputer, use of a calculator, and audio

19

presentation of test items. Juleus requires these accommodations to minimize the effect

20

of his dyslexia and to demonstrate his skills and abilities. Depending on the

21

accommodations which are or are not made available to him, Juleus may require an

22

alternate method of assessment in order to fairly demonstrate his abilities.

23 55. Juleus was told by a Fremont school official that when he takes the CAHSEE he will not

24

be allowed to use any accommodations on the tests. Juleus and his parents have not been

25

provided any information about how to request reasonable accommodations or an

26

alternate assessment for the CAHSEE or how to appeal a denial of a request.

27 56. Juleus’ IEP has not been modified to align with the curriculum tested on the CAHSEE.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

14

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page15 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 57. Juleus requires an individual assessment by his IEP team to determine whether he should

2

participate in the CAHSEE with accommodations, or whether an alternate assessment

3

would be more appropriate.

4 58. Named Plaintiff Ryan Smiley has dyslexia and dysgraphia. Ryan lives in Montrose,

5

California, and he attends public schools in La Crescenta, California. Ryan is in the class

6

of 2004. He will be required to take and pass the CAHSEE to obtain a diploma. He took

7

the CAHSEE on a voluntary basis in the spring of 2001, but he did not pass either

8

section.

9 59. Ryan has an Individualized Education Program that specifies he is allowed to use certain

10

testing accommodations due to his learning disabilities. These testing accommodations

11

include, inter alia, extended time, use of a specialized laptopcomputer called an

12

“Alphasmart,” use of a calculator, and audio presentation of test items. Ryan requires

13

these accommodations to minimize the effect of his learning disabilities and to

14

demonstrate his skills and abilities.

15 60. During Ryan’s IEP meeting in the fall of 2000, Ryan’s mother, Krista Smiley, was told

16

that Ryan would be allowed to use full accommodations on all tests. Mrs. Smiley

17

understood this to mean that Ryan would be allowed to use the accommodations he

18

needed on the CAHSEE.

19 61. Prior to the administration of the CAHSEE in the spring of 2001, Ryan and his parents

20

were not provided any information about how to request an accommodation for the exam

21

or how to appeal a denial of an accommodation request. The only information Ryan

22

received about the CAHSEE was that he was told, along with the other learning disabled

23

students in his special education class, that he and the other learning disabled students

24

would take the exam in a separate room and be allowed to have extra time on the test.

25 62. When Ryan took the CAHSEE in March 2001, he was not allowed to use all of the

26

testing accommodations specified in his IEP. Although he normally has exams read to

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

15

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page16 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

him, a reader was not provided for the English portion of the Exit Exam. In addition,

2

Ryan was allowed to use his Alphasmart word processor on only one of the two essays.

3 63. Ryan had not studied much of the content that was tested on the math portion of the

4

CAHSEE. Ryan is currently enrolled in pre-Algebra, and has not studied Algebra or

5

Geometry, both of which are tested on the CAHSEE.

6 64. Ryan’s IEP has not been modified to align with the curriculum tested on the CAHSEE.

7 65. Ryan requires an individual assessment by his IEP team to determine whether he should

8

participate in the CAHSEE with accommodations, or whether an alternate assessment

9

would be more appropriate.

10 66. Named Plaintiff Jennifer Lyons has dyslexia. Jennifer lives in Magalia, California, and

11

attends public schools in Paradise, California. She is in the class of 2005. She will be

12

required to take and pass the CAHSEE to obtain a diploma.

13 67. Jennifer has an Individualized Education Program that specifies she is allowed to use

14

certain testing accommodations due to her learning disability. These testing

15

accommodations include, inter alia, use of an electronic spell checker, use of a

16

calculator, use of a computer, scanner, and cassette recorder. Jennifer requires these

17

accommodations to minimize the effect of her dyslexia. These accommodations are

18

probably not sufficient, however, to allow her to fully demonstrate her knowledge, skills

19

and abilities on the CAHSEE, and Jennifer most likely requires an alternate assessment.

20 68. Jennifer and her parents have not been provided any information about how to request

21

reasonable accommodations or an alternate assessment for the CAHSEE, or how to

22

appeal a denial of a request.

23 69. Jennifer’s IEP has not been modified to align with the curriculum tested on the CAHSEE.

24 70. Jennifer requires an individual assessment by her IEP team to determine whether she

25

should participate in the CAHSEE with accommodations, or whether an alternate

26

assessment would be more appropriate.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

16

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page17 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

History of the CAHSEE

2 71. In 1999 the California legislature passed legislation (SB 2, codified at Cal. Ed. Code

3

§ 60850 et seq.) directing the Superintendent of Public Instruction to develop a high

4

school exit examination in language arts and mathematics.

5 72. Pursuant to that legislation, Defendants hired a contractor to develop and field test the

6

CAHSEE over a period of several months in 2000.

7 73. As required by law, Defendants hired an independent consultant to evaluate the

8

CAHSEE.

9 74. The independent evaluator concluded that the CAHSEE should be delayed by at least one

10

to two years because key components of the testing system were not properly developed.

11 75. Specifically, the independent evaluator found that students with disabilities had not been

12

adequately prepared for the tests. The independent consultant found that students with

13

disabilities had not had their IEPs or Section 504 Plans modified to align with the

14

curriculum tested on the CAHSEE, and that therefore these students were tested on

15

material that they had never been taught.

16 76. The independent evaluator also found that Defendants had gathered insufficient

17

information regarding the use of accommodations on the CAHSEE, and recommended

18

that Defendants gather, review and discuss more information on the appropriateness and

19

effectiveness of testing accommodations for students with disabilities, as well as the

20

differential impact of the Exit Exam on students with disabilities.

21 77. The independent evaluator also noted that a greater percentage of students with

22

disabilities are likely to fail the CAHSEE than the student population as a whole.

23 78. The independent evaluator’s report is publicly available on the Department of

24

Education’s website at www.cde.ca.gov.

25 79. In the face of compelling evidence that the CAHSEE is invalid and discriminatory, and

26

despite the recommendation by their own expert independent consultant to delay the

27

implementation of the CAHSEE, Defendants nevertheless decided to proceed with

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

17

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page18 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

implementation of the CAHSEE and have already administered the exam in the Spring of

2

2001 to students in the Class of 2004. These students will be required to pass the

3

CAHSEE to graduate from high school.

4 80. In 2001, the California legislature passed AB 1609, codified as amendments to the

5

portions of the California Education Code concerning the CAHSEE. This legislation

6

calls for a review of the CAHSEE after it has already been administered multiple times to

7

public school children, including the plaintiff class. This review will study whether the

8

test development process and implementation were proper.

9 81. Based on this review, in 2003, Defendant BOARD OF EDUCATION is permitted, but

10

not required to suspend the requirement that students pass the CAHSEE in order to obtain

11

a high school diploma.

12 82. Students, including the plaintiff class, will be obligated to take the CAHSEE multiple

13

times prior to a determination by the BOARD of EDUCATION regarding the diploma

14

requirement, without knowing whether they are at risk of failing to obtain a diploma

15

unless they pass the CAHSEE.

16 83. Based on voluntary participation of students in the class of 2004who chose to take the

17

CAHSEE in the spring of 2001, the independent evaluator found that over 90% of

18

students with disabilities who chose to take the Exist Exam failed to pass. Of all students

19

who took the Exit Exam in the spring of 2001 (including the students with disabilities),

20

approximately 55% did not pass.

21 84. Even if students, including the plaintiff class, are not ultimately required to pass the

22

CAHSEE to obtain a high school diploma, the students in the plaintiff class will suffer

23

ongoing harm and repeatedly experience failure if they are required to take the CAHSEE

24

without appropriate reasonable accommodations or an alternate assessment. Such

25

experiences are linked with multiple harms, including increased risk of dropping out of

26

school.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

18

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page19 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 85. The defects in the CAHSEE are due, at least in part, to the fact that Defendants hastily

2

developed and implemented the exam.

3 86. The entire test was developed and field tested over a period of just several months.

4 87. It is impossible to adequately design a high school graduation test in such a limited

5

amount of time. As noted by the independent evaluator hired by Defendants to evaluate

6

the CAHSEE, tests like the CAHSEE are generally developed and analyzed over a period

7

of years before they are implemented.

8 88. With regard to students with disabilities, this lead time is especially necessary in order to

9

conduct the essential groundwork that must be done to ensure that, at a minimum, (a) the

10

test is psychometrically valid and reliable for disabled students, (b) disabled students

11

have been taught the material tested on the exam, (c) alternate assessments have been

12

developed for students with disabilities, (d) students, parents, teachers and administrators

13

are aware of the requirements of the test and the participation options for students with

14

disabilities, (e) an accommodations policy has been developed and disseminated to

15

students, parents, teachers, administrators, and IEP and 504 Plan team members, (f) IEP

16

and 504 forms have been modified to include a checklist of options for participation in

17

the test, and (g) an appeals process has been set up by which students can appeal denials

18

of accommodations requests and other aspects of the assessment system.

19 89. None of these essential steps were taken with the CAHSEE, and Defendants are fully

20

aware that the failure to take such steps has resulted in an exam that discriminates against

21

students with disabilities. The CAHSEE discriminates against students with disabilities

22

in at least the following multiple ways:

23

Alternate Assessment

24 90. Defendants have failed to develop an “alternate assessment” to the CAHSEE for students

25

who cannot adequately demonstrate their mastery of state content standards on the exam,

26

even with appropriate reasonable accommodations.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

19

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page20 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 91. Alternate assessments are specifically required by multiple federal statutes, including the

2

Individuals with Disabilities Education Act (“IDEA”).

3 92. IDEA was amended in 1997 to require all states to develop and implement “alternate

4

assessments” for any statewide assessment administered by the State. Under the 1997

5

amendments, these alternate assessments were to be in place by July of 2000. See 20

6

U.S.C. § 1412(a)(17)(A); 34 C.F.R. § 300.138.

7 93. In addition, the Goals 2000: Educate America Act and Title I of the Improving America’s

8

Schools Act of 1994 each specifically require alternate assessments as necessary for

9

students with diverse learning needs, including students with disabilities.

10 94. The legislation which required the creation of the CAHSEE specifically requires that the

11

test must conform to the requirements of IDEA, among other civil rights laws.

12 95. Defendants have been and remain fully aware of their legal obligation to develop

13

alternate assessments to the CAHSEE. However, Defendants have ignored this legal

14

obligation and refused to develop any alternate assessment to the CAHSEE. Instead,

15

Defendants require all students to take the CAHSEE, and do not allow any students to

16

opt out or be exempted from the Exit Exam or to demonstrate their mastery of state

17

content standards by any other means.

18 96. The requirement to provide an alternate assessment is essential to allowing students with

19

disabilities an equal opportunity with respect to statewide assessments such as the

20

CAHSEE. Alternate assessments are required for any student with a disability who is

21

unable to participate in the standard assessment by virtue of his or her disability.

22 97. By failing and refusing to develop and provide an alternate assessment to the CAHSEE,

23

Defendants are intentionally discriminating against thousands of students with disabilities

24

for whom an alternate assessment, rather than the standard assessment is appropriate.

25

These students will not be properly assessed by the CAHSEE, and will not be able to

26

accurately demonstrate their knowledge, skills and abilities.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

20

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page21 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

Reasonable Accommodation

2 98. Plaintiff students require and are guaranteed under federal and state law reasonable

3

accommodations on the CAHSEE such that they are tested on their mastery of state

4

content standards rather than on their disabilities.

5 99. Without such accommodations, Plaintiff students are subjected to discrimination because

6

they are tested on their disabilities, not their abilities. Without the reasonable

7

accommodations they require, Plaintiff students will be unable to pass the CAHSEE and

8

therefore will be unable to graduate from high school with a diploma.

9 100. Defendants have created chaos and confusion by failing to formulate clear policies and

10

procedures regarding the provision of reasonable accommodations on the CAHSEE.

11 101. At the time of the administration of the CAHSEE in Spring of 2001, STATE

12

DEFENDANTS had not issued final regulations regarding the policies and procedures for

13

obtaining reasonable accommodations on the Exam.

14 102. Instead, Plaintiff students, their parents, and school administrators were either provided

15

with no information or guidance about the use of accommodations on the March 2001

16

Exam, or were provided with conflicting, misleading, and confusing information about

17

accommodations.

18 103. Currently, STATE DEFENDANTS still have not issued final regulations regarding the

19

policies and procedures for obtaining reasonable accommodations on the Exam.

20 104. Defendants have issued (but not finalized) a variety of regulations regarding

21

accommodations for the High School Exit Exam since the original legislation was

22

enacted.

23 105. Only days in advance of the administration of the CAHSEE in the spring of 2001,

24

interim regulations regarding accommodations were approved by the State Board of

25

Education. Because the regulations were issued so close to the administration of the

26

exam, teachers, test administrators, parents and students did not have sufficient time to

27

request (or appeal denials of) reasonable accommodations.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

21

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page22 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 106. Subsequent to the administration of the CAHSEE, in the Spring of 2001, the belated and

2

limited accommodations regulations were withdrawn in June.

3 107. From June until October, 2001, there were no regulations whatsoever regarding

4

accommodations on the CAHSEE.

5 108. On or around November 8, 2001 new regulations were adopted by the Board of

6

Education. Even these regulations are not yet final; further administrative action is still

7

necessary (and anticipated) for them to be finalized.

8 109. Notwithstanding the startlingly high failure rate among students with disabilities, these

9

new regulations represent a reversal from the previously issued regulations in that they

10

allow fewer accommodations for disabled students and also indicate that

11

accommodations not listed in a students’ IEP or 504 plan may not be used on the

12

CAHSEE.

13 110. The present proposed regulations for the first time specifically prohibit the use of

14

accommodations such as oral presentation of exam materials on the English portion of

15

the CAHSEE or use of a calculator on the mathematics portion of the exam.

16 111. The new regulations further provide that school districts (not individual students) may

17

request accommodations not listed in the regulations at least nine weeks prior to the exam

18

(i.e. by December, 2001 for the March, 2002 administration). Neither IEP teams nor

19

school districts will have sufficient time to determine which accommodations each

20

student should receive in advance of the next planned administration of the CAHSEE in

21

the Spring of 2002.

22 112. Separate from the regulations, STATE DEFENDANTS are now developing a “waiver”

23

policy for students with disabilities. This policy is not yet final. However, as it now

24

stands, school districts (not students or parents) would be permitted (not obligated) to

25

“excuse” a student from the CAHSEE by pursuing an extremely convoluted process:

26

(a) The district would first have to seek a waiver permitting the student to take the

27

CAHSEE with the “prohibited” accommodation; (b) The student would have to take the

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

22

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page23 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

exam and receive a passing score; (c) Notwithstanding the fact that the student would

2

already have achieved a passing score on the CAHSEE, the district would have to seek a

3

second waiver, “excusing” the student from the CAHSEE requirement. In other words,

4

the student would be required to pass the test in order to qualify to be excused from the

5

test (and the work done by the student in obtaining a passing score would be dismissed as

6

immaterial, and never be acknowledged).

7 113. Under this waiver scheme, Plaintiff students would be subject to the whims of their

8

individual school districts to even be permitted to pursue a “waiver,” which, in any case,

9

could not be effectively obtained in time to permit students to take the Spring 2002 exam

10

with the “prohibited” accommodations.

11 114. This waiver scheme effectively transforms a student’s right to appropriate

12

accommodations into a theoretical possibility, which could only be obtained, if at all, by

13

pursuing a complicated and humiliating process.

14 115. Defendants’ failure to approve regulations and distribute information in a timely and

15

appropriate manner has caused ongoing confusion among students, parents and

16

administrators.

17 116. The regulations are deficient and discriminatory because they do not allow for students

18

with disabilities to use certain accommodations on the CAHSEE which they routinely use

19

in the classroom and on other exams.

20 117. The regulations are also discriminatory in that they do not allow students with disabilities

21

to use certain accommodations they may need for the CAHSEE, but which are not listed

22

in their IEP or 504 Plan.

23 118. Certain students with disabilities may require accommodations on the CAHSEE that they

24

have not previously required for classroom assessments because of the different nature of

25

the CAHSEE.

26 119. The regulations are also discriminatory in that they do not allow a disabled student who

27

does not have an IEP or 504 Plan to use accommodations on the Exit Exam.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

23

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page24 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 120. While the majority of students eligible for accommodations are those with an IEP or 504

2

Plan, there are students with disabilities who do not have either an IEP or 504 Plan who

3

will need accommodations on the Exit Exam. Other states, such as Massachusetts, have

4

recognized this and explicitly provide in their regulations that disabled students who do

5

not have IEPs or 504 Plans may request accommodations on statewide assessments.

6 121. In addition, the regulations do not set forth any information regarding the procedure to be

7

used for requesting accommodations on the CAHSEE.

8 122. Therefore, students, parents, and administrators do not know what process is available for

9

seeking necessary reasonable accommodations, or what standards are used in reviewing

10

and granting these accommodation requests.

11 123. The regulations do not provide for any appeals of denials of accommodation requests.

12 124. Thus, regardless of how arbitrary or incorrect a denial of an accommodation request is, a

13

student has no avenue to appeal that denial.

14 125. Defendants have failed to provide mechanisms, procedures, policies or personnel to

15

engage in the legally required interactive process with parents and students for the

16

fashioning of reasonable accommodations. STATE DEFENDANTS have not provided

17

adequate training or information to schools and school districts regarding the

18

individualized assessment necessary to determine what accommodations a disabled

19

student will require on the CAHSEE. School districts, including DISTRICT

20

DEFENDANTS have not provided adequate information to parents and students.

21 126. Due to the lack of clear policies and procedures regarding the process for obtaining

22

accommodations on the CAHSEE, Plaintiffs and their parents have received and continue

23

to receive conflicting, confusing and misleading information from STATE

24

DEFENDANTS and from their school districts, including DISTRICT DEFENDANTS.

25

As a result, parents of Plaintiff students (a) have been unable to make informed decisions

26

about how their child should approach or take the tests, (b) have been misled about the

27

procedures and consequences, (c) have been forced to make decisions which may be

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

24

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page25 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

unnecessarily damaging to their children’s future and/or (d) have been discouraged from

2

requesting the reasonable accommodations and alternate assessments to which they are

3

entitled as a matter of law.

4 127. As another consequence of the lack of policies and procedures for providing reasonable

5

accommodations on the CAHSEE, Plaintiff students and their parents have been unable

6

to participate meaningfully in designing Plaintiffs’ Individualized Education Programs or

7

Section 504 Education Plans.

8

Failure to Provide Curriculum Alignment

9 128. Due to the premature implementation of the CAHSEE, students with disabilities have not

10

been given adequate time and notice to prepare for these new testing requirements.

11

Without such time and notice, the CAHSEE will unfairly test them on material that they

12

have not had the opportunity to learn.

13 129. Throughout their educations, Plaintiff children have been provided with individualized,

14

specific curricula in accordance with their IEPs or 504 Plans. In many cases, these

15

individualized plans deviate from the general curriculum.

16 130. These IEPs and 504 Plans have not been modified to be aligned with the subject matter

17

tested on the CAHSEE.

18 131. As noted by the independent evaluator hired by Defendants to review the CAHSEE, the

19

process of modifying IEPs and Section 504 Plans to align with the curriculum tested on

20

the exam will be lengthy and may require a lead time of several years.

21 132. Despite the fact that Defendants have already administered the CAHSEE, Defendants

22

have not taken any steps whatsoever to ensure that Plaintiff students’ IEPs and Section

23

504 Plans are modified to align with the Exam.

24 133. In addition, Defendants have not created any materials or programs for teaching children

25

with disabilities what they need to know to pass the CAHSEE.

26 134. Defendants have instituted no steps to ensure appropriate remediation for disabled

27

students who do not pass the CAHSEE on their first attempt.

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

25

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page26 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 135. Without immediate relief from the Court, Plaintiffs and other children who cannot pass

2

the CAHSEE because it tests them on materials that they never had the opportunity to

3

learn will be irreparably harmed in that they will be denied numerous academic,

4

employment and professional opportunities, may not graduate from high school, and will

5

experience severe damage to their self-esteem and emotional well-being.

6

Failure to Conform to Psychometric Standards, Including Validity

7 136. The CAHSEE does not conform to relevant nationally recognized professional and

8

technical standards for standardized tests. Such psychometric standards include, but are

9

not limited to, the following positions: (a) high stakes assessments must be validated for

10

each specific use to which they are put; (b) cutscores (i.e. the place where the line is

11

drawn between passing and failing) must be set based on appropriate, documented

12

analysis; (c) tests that are designed to “lead” a curriculum should not have high stakes

13

consequences for individuals; and (d) high stakes consequences for individual students

14

should not be based on a single test.

15 137. Federal law, including Goals 2000 and Title I, specifically require that state assessments

16

conform to national standards. Defendants are aware of this requirement, but have

17

disregarded the relevant standards in their development and use of the CAHSEE

18

FIRST CLAIM

(Violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.)

19

(ALL DEFENDANTS)

20 138. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-137 inclusive.

21 139. Defendants’ acts and omissions alleged herein are in violation of the Americans with

22

Disabilities Act, 42 U.S.C. § 12101, et seq., (“ADA”) and the regulations promulgated

23

thereunder, 28 C.F.R. Part 35, et seq.

24 140. Plaintiffs are qualified individuals with disabilities within the meaning of the ADA. 42

25

U.S.C. § 12131(2).

26

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

26

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page27 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 141. STATE DEFENDANTS, and DISTRICT DEFENDANTS are public entities within the

2

meaning of Title II of the ADA and the regulations promulgated thereunder. 42 U.S.C.

3

§ 12131(1)(B).

4 142. Defendants have violated the ADA by failing to evaluate their policies and practices with

5

regard to the CAHSEE to ensure that these policies and procedures do not exclude or

6

limit the participation of individuals with disabilities in their programs and activities. 28

7

C.F.R. § 35.105.

8 143. Defendants have violated the ADA by failing and refusing to develop and provide

9

alternate assessments in place of the CAHSEE to those Plaintiff children whose disability

10

is such that they require an alternate assessment to demonstrate their mastery of content

11

standards. 28 C.F.R. § 35.130.

12 144. Defendants have violated the ADA with regard to the CAHSEE by excluding Plaintiff

13

children from participation in and denying them the benefits of the services, programs or

14

activities of a public entity solely on the basis of disability. Defendants have further

15

violated the ADA by otherwise subjecting Plaintiff children to discrimination based upon

16

disability. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).

17 145. Defendants have violated the ADA with regard to the CAHSEE by denying Plaintiff

18

children the opportunity to participate in or benefit from aids, benefits and services

19

provided by the public entities, and by providing Plaintiff children with the opportunity

20

to participate in or benefit from aids, benefits or services that are not equal to those

21

afforded non-disabled children who attend California’s public schools. 28 C.F.R. §

22

35.130(b)(1)(i)-(ii).

23 146. Defendants have violated the ADA with regard to the CAHSEE by providing Plaintiff

24

children with benefits that are different and/or not as effective in affording equal

25

opportunity to obtain the same results, to gain the same benefits, or to reach the same

26

levels of achievement as that provided to others. 28 C.F.R. § 35.130(b)(1)(iii)-(iv).

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

27

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page28 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 147. Defendants have violated the ADA with regard to the CAHSEE by utilizing criteria or

2

methods of administration that have the effect of subjecting Plaintiff children to

3

discrimination on the basis of disability or that have the purpose or effect of defeating or

4

substantially impairing accomplishment of the objectives of the public entity’s program

5

with respect to individuals with disabilities. 28 C.F.R. § 35.130(b)(3).

6 148. Defendants have violated the ADA by administering a certification program in a manner

7

that subjects Plaintiff children to discrimination on the basis of disability. 28 C.F.R.

8

§ 35.130(b)(6).

9 149. Defendants have violated the ADA by failing to make reasonable modifications in

10

policies, practices or procedures with regard to the CAHSEE when the modifications are

11

necessary to avoid discrimination on the basis of disability. 28 C.F.R. § 35.130(7).

12 150. Defendants have violated the ADA with regard to the CAHSEE by imposing eligibility

13

requirements that screen out or tend to screen out an individual with a disability or any

14

class of individuals with disabilities from fully and equally enjoying any service,

15

program, or activity offered by Defendants. 28 C.F.R. § 130.(b)(8).

16 151. WHEREFORE, Plaintiffs request relief as set forth below.

17

SECOND CLAIM

(Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.)

18

(ALL DEFENDANTS)

19 152. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-151 inclusive.

20 153. Plaintiffs are qualified individuals with disabilities within the meaning the Rehabilitation

21

Act of 1973 (“Rehab Act”).

22 154. STATE DEFENDANTS and DISTRICT DEFENDANTS are the recipients of federal

23

funds sufficient to invoke the coverage of the Rehab Act.

24 155. With regard to the CAHSEE, Defendants have intentionally discriminated against

25

Plaintiffs on the basis of their disabilities in violation of the Rehabilitation Act. 29

26

U.S.C. § 794.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

28

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page29 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 156. With regard to the CAHSEE, solely by reason of their disabilities, Plaintiffs have been,

2

and continue to be, excluded from participation in, denied the benefits of, and subjected

3

to discrimination in their attempts to receive, full and equal access to the programs,

4

services and activities offered by Defendants in violation of the Rehabilitation Act. 29

5

U.S.C. § 794.

6 157. WHEREFORE, Plaintiffs request relief as set forth below.

7

THIRD CLAIM

(Violation of Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq)

8

(ALL DEFENDANTS)

9 158. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-157 inclusive.

10 159. Defendants have violated the Individuals with Disabilities Education Act (“IDEA”) by

11

failing to develop adequate regulations for the provision of appropriate accommodations

12

to students with disabilities on the CAHSEE. 20 U.S.C. § 1412(a)(17)(A).

13 160. Defendants have violated IDEA by failing to develop guidelines for the participation of

14

children with disabilities in alternate assessments for those disabled students who cannot

15

participate in the CAHSEE because of their disability. 20 U.S.C. § 1412(a)(17)(A)(i).

16 161. Defendants have violated IDEA by failing to ensure that the CAHSEE has been validated

17

for the specific purpose for which it is used. 20 U.S.C. § 1414(b)(3)(B)(i).

18 162. Defendants have violated IDEA by failing to ensure that the CAHSEE is administered in

19

accordance with any instructions provided by the producer of the exam. 20 U.S.C.

20 21 163. 22 23 24 25

§ 1414(b)(3)(B)(iii). Defendants have adopted a policy of discrimination based solely upon the disabilities of school children, resulting in severe interference with and deprivation of Plaintiffs’ fundamental right to a free and appropriate public education which is secured to them by the laws of the United States and specifically pursuant to IDEA. 20 U.S.C. § 1401(8).

26

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

29

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page30 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 164. 2 3 4
165. 5 6 7

No administrative remedy exists under IDEA to address these wholesale violations by
STATE DEFENDANTS. Accordingly, Plaintiffs are not required to exhaust the
administrative procedures set forth in IDEA.
WHEREFORE, Plaintiffs request relief as set forth below.
FOURTH CLAIM (Violation of the Goals 2000: Educate America Act, 20 U.S.C. § 5801 et seq.)
(ALL STATE DEFENDANTS)

8 166. 9
167. 10
11 12 168.

Plaintiffs incorporate by reference herein the allegations in paragraphs 1-165, inclusive STATE DEFENDANTS receive funding under the Goals 2000: Educate America Act (“Goals 2000"), and are thus subject to its requirements. STATE DEFENDANTS intend that the CAHSEE constitutes the assessment component

13

of the State improvement plan to meet the National Education Goals set forth in Goals

14 15
169. 16 17 18

2000. STATE DEFENDANTS have violated Goals 2000 by failing to develop and implement valid, nondiscriminatory, and reliable state assessments which are aligned with state content standards, which involve multiple measures of student performance, and which

19

provide for participation by all students with diverse learning needs through necessary

20 21 170. 22 23 24 25 171.

adaptations and accommodations. 20 U.S.C. § 5886 (c)(1)(B). Specifically, STATE DEFENDANTS have violated Goals 2000 in that the CAHSEE is not aligned with the State’s content standards for plaintiff students. 20 U.S.C. § 5886(c)(1)(B)(i)(I). In addition, STATE DEFENDANTS have violated Goals 2000 in that the CAHSEE does

26

not involve multiple measure of student performance. 20 U.S.C. § 5886(c)(1)(B)(i)(II).

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

30

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page31 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 172. 2 3 4 5 6 173.

STATE DEFENDANTS have also violated Goals 2000 in that the CAHSEE does not provide for assessment of “all student with diverse learning needs” using the “adaptations and accommodations necessary to permit such participation.” 20 U.S.C. § 5886(c)(1)(B)(i)(III). STATE DEFENDANTS have also violated Goals 2000 in that the CAHSEE is not

7

consistent with “relevant, nationally recognized professional and technical standards.”

8 9
174. 10 11 12

20 U.S.C. § 5886(c)(1)(B)(i)(IV). STATE DEFENDANTS’ conduct constitutes ongoing and continuous violations of Goals 2000, and, unless restrained from doing so STATE DEFENDANTS will continue to violate said law. Said conduct, unless enjoined, will continue to inflict injuries for which

13

Plaintiff children have no remedy under Goals 2000 and no adequate remedy at law.

14
15 175.
16
17
18
19 176.
20 21 177.

Consequently, plaintiff children are entitled to injunctive relief under 42 U.S.C. § 1983.
WHEREFORE, Plaintiffs request relief as set forth below.
FIFTH CLAIM (Violation of Title I of the Improving America’s Schools Act of 1994, 20 U.S.C. § 6301 et seq.)
(ALL STATE DEFENDANTS)
Plaintiffs incorporate by reference herein the allegations of paragraphs 1-175, inclusive.
STATE DEFENDANTS receive funding under Title I of the Improving America’s

22

Schools Act of 1994, 20 U.S.C. § 6301 et seq. (“Title I”), and are thus subject to its

23
24 178. 25
26 27 179.
28

requirements. STATE DEFENDANTS intend that the CAHSEE to constitute the assessment component of the Standards and Assessments requirements of Title I. STATE DEFENDANTS have violated Title I in that the CAHSEE is not aligned with the State’s content standards for plaintiff students. 20 U.S.C. § 6311(b)(3)(B).

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

31

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page32 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 180. 2
3 181.
4
5
6

STATE DEFENDANTS have violated Title I in that the CAHSEE is not being used “for purposes for which [it is] valid and reliable.” 20 U.S.C. § 6311(b)(3)(C). STATE DEFENDANTS have violated Title I in that their proposed use of the CAHSEE is not “consistent with relevant, nationally recognized professional and technical standards for such assessments.” 20 U.S.C. § 6311(b)(3)(C).

7 182. STATE DEFENDANTS have violated Title I in that their proposed use of the CAHSEE

8 9 10 11 12 183.

does not provide “reasonable adaptations and accommodations for students with diverse learning needs, necessary to measure the achievement of such students relative to State content standards.” 20 U.S.C. § 6311(b)(3)(F)(ii). STATE DEFENDANTS’ conduct constitutes ongoing and continuous violations of

13

Title I, and, unless restrained from doing so STATE DEFENDANTS will continue to

14 15 16 17 18 184.

violate said law. Said conduct, unless enjoined, will continue to inflict injuries for which Plaintiff children have no remedy under Title I, and no adequate remedy at law. Consequently, plaintiff children are entitled to injunctive relief under 42 U.S.C. § 1983. WHEREFORE, Plaintiffs request relief as set forth below.

19
20
21 185. 22
186. 23
24
25

SIXTH CLAIM (Violation of Cal. Ed. Code § 60850 )
(ALL STATE DEFENDANTS)
Plaintiffs incorporate by reference herein the allegations of paragraphs 1-184, inclusive.
STATE DEFENDANTS have violated Cal. Ed. Code § 60850, the provision establishing
the CAHSEE, because the State Education Code on its face prohibits using the CAHSEE
as a condition of graduation unless it complies with constitutional Due Process

26

requirements (including notice and validity requirements). Cal. Ed. Code § 60850(e).

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

32

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page33 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 187. 2 3 4 5 6

STATE DEFENDANTS have further violated Cal. Ed. Code § 60850 in that the State Education Code on its face requires that the CAHSEE shall be offered to “individuals with exceptional needs” (which includes the plaintiff class) in a manner that conforms to IDEA and the Rehab Act. Cal. Ed. Code § 60850(g). Thus, a violation of IDEA and/or the Rehab Act is also a violation of Cal. Ed. Code § 60850.

7 188. STATE DEFENDANTS have further violated Cal. Ed. Code § 60850 in that the State

8 9 10 11 12 189.

Education Code on its face requires that the CAHSEE shall be administered to students “with exceptional needs” with “appropriate accommodations.” Cal. Ed. Code § 60850(g). STATE DEFENDANTS’ failure to comply with mandatory requirements of Cal. Ed.

13

Code § 60850 constitute a breach of a mandatory duty imposed by an enactment that is

14

designed to protect against the risk of a particular kind of injury, in that:

15 a. The enactments of Cal. Ed. Code §§ 60850(e) and (g) impose a mandatory duty
16 on STATE DEFENDANTS;
17

18

b. The enactments of Cal. Ed. Code §§ 60850(e) and (g) are intended to protect

19

against the kind of risk of injury suffered by the plaintiff class; and

20 21 22 23 24 25 190.

c. Breach of Cal. Ed. Code §§ 60850(e) and (g) is a proximate cause of the injuries suffered by the plaintiff class.
Thus, STATE DEFENDANTS are liable and Plaintiffs are entitled to injunctive relief under Cal. Gov’t Code § 815.6. WHEREFORE, Plaintiffs request relief as set forth below.

26

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

33

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page34 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1
2
3 191.
4 192.
5

SEVENTH CLAIM (Violation of Cal. Gov’t Code §11135 et seq.)
(ALL STATE DEFENDANTS)
Plaintiffs incorporate by reference herein the allegations of paragraphs 1-190, inclusive.
California Government Code §11135 and the regulations promulgated thereunder,

6

prohibit discrimination against people with disabilities by recipients of state funding.

7

Section 11135 provides, in pertinent part, that:

8

No person in the State of California shall, on the basis of...disability, be

9

unlawfully denied the benefits of, or be unlawfully subjected to discrimination

under, any program or activity that is funded directly by the state or receives any

10

financial assistance from the State.

11 193. Defendants have received substantial state financial assistance at all relevant times.

12 194. Defendants have discriminated against plaintiffs in programs and activities receiving
13 state financial assistance solely because of their disabilities in violation of Government
14

15

Code §11135 and the regulations promulgated thereunder.

16 195. As a proximate result of defendants’ violations of Section 11135, plaintiffs have been

17

injured as set forth herein.

18 196.
19
20
21

WHEREFORE, plaintiffs pray for relief as set forth below.
EIGHTH CLAIM (Violation of Due Process Clause of United States Constitution)
(ALL DEFENDANTS)

22 197. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-196, inclusive.

23 198. The actions of Defendants have violated and continue to violate the Fourteenth

24

Amendment to the United States Constitution in that Defendants have failed to provide

25 Plaintiff children and their parents with adequate notice of the testing requirements for
26

27

the CAHSEE. Due to the lack of adequate notice, parents and educators have not had

28

sufficient time to consider and determine whether and how the skills tested on the

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

34

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page35 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 2 3 4
199. 5 6

statewide tests should be addressed in a child’s IEP or Section 504 Plan. California schools have never taught or trained children with disabilities many of the skills and content currently being tested on the CAHSEE. Defendants have taken no steps to ensure that disabled students’ IEPs or Section 504 Plans are modified to align with the curriculum and skills tested on the Exit Exam.

7

Instead, Defendants have embarked upon a one-test-fits-all, test-first-provide-education-

8 9 10 11 12 200.

later procedure without conducting adequate research into the far reaching negative consequences for students with disabilities, which effectively makes it impossible for these students to pass the required exams. The actions of Defendants have violated and continue to violate the Fourteenth

13

Amendment to the United States Constitution because the CAHSEE, as currently

14 15 16 17 18 201.

formulated and administered, lacks both instructional and curricular validity in that the state cannot meet its burden of showing that the test covers materials that the plaintiff students have had the opportunity to learn. The actions of Defendants have violated and continue to violate the Fourteenth

19

Amendment to the United States Constitution because the CAHSEE, as currently

20
21
22 202.
23
24
25

formulated and administered, is not consistent with relevant, nationally recognized professional and technical standards. Defendants have also violated and continue to violate the Fourteenth Amendment to the United States Constitution by failing to create and implement clear, consistent and understandable policies and procedures regarding provision of reasonable

26

accommodations on the CAHSEE.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

35

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page36 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 203. 2 3 4 5 6 204.

Defendants have violated and continue to violate the Fourteenth Amendment to the United States Constitution by failing to establish a procedure for parents and students to challenge even the most arbitrary conduct with regard to the denials of reasonable accommodations on the CAHSEE. The actions of Defendants have violated and continue to violate the Fourteenth

7

Amendment to the United States Constitution in that the CAHSEE is fundamentally

8 9 10 11 12 205.

unfair because many students with disabilities will not be accurately assessed by the exam because they require an alternate assessment. Defendants have refused, in violation of federal law, to develop alternate assessments to the CAHSEE. WHEREFORE, Plaintiffs request relief as set forth below.

13
14
15 206.
16 207.
17
18

NINTH CLAIM (Violation of Equal Protection Clause of the California Constitution )
(ALL STATE DEFENDANTS)
Plaintiffs incorporate by reference herein the allegations of paragraphs 1-205, inclusive.
Under the California Constitution, the right to an education is a fundamental interest, and
any action which impinges upon such right is subject to strict scrutiny. Serrano v. Priest,

19

18 Cal. 3d 728 (1977).

20 208. 21 22 23 24 25

STATE DEFENDANTS have violated and continue to violate the Equal Protection provisions of the California Constitution by failing to ensure that plaintiff students with disabilities have an equal opportunity as nondisabled students to demonstrate mastery of the content standards addressed in the CAHSEE through use of reasonable accommodations and/or an alternate assessment.

26 209. In the first administration of the CAHSEE, over 90% of the students with disabilities who

27

took the exam (without an appropriate policy for reasonable accommodations or an

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

36

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page37 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 2 3 4
210. 5 6

alternate assessment in place) failed to pass. Overall, approximately 55% of the public school students who chose to take the CAHSEE in the spring of 2001 (including students with disabilities) did not pass. Unless student plaintiffs are provided with appropriate reasonable accommodations and/or an alternate assessment, students with disabilities will continue to fail the

7

CAHSEE in disproportionate numbers, and thus will be deprived of the opportunity to

8 9
211. 10 11 12

obtain a high school diploma. Moreover, because the CAHSEE lacks curricular validity in that it tests materials that students have not had the opportunity to learn, it is not even rationally related to any state interest. See Debra P. v. Turlington, 644 F.2d 397, 406 (5th Cir. 1981).

13 212. WHEREFORE, Plaintiffs request relief as set forth below.

14
15
16 213.
17 18 214.

TENTH CLAIM (Declaratory Relief, 28 U.S.C. §§ 2201, 2202)
( All Defendants)
Plaintiffs incorporate by reference herein the allegations in paragraphs 1-212, inclusive.
Plaintiffs contend, and are informed and believe that Defendants deny that the they have

19

failed to comply with applicable laws prohibiting discrimination against persons with

20

disabilities and are in violation of the Americans with Disabilities Act, 42 U.S.C.

21

§ 12101, et seq; the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq; the Individuals

22 with Disabilities Education Act 20 U.S.C. § 1400, et seq; Goals 2000, 20 U.S.C. § 5801
23

24

et seq.; Title I, 20 U.S.C. § 6301 et seq.; the California Education Code, California

25

Government Code § 11135, et seq., and the Constitutions of the United States and

26

California.

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

37

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page38 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 215. 2
3 216.
4
5
6

A judicial declaration is necessary and appropriate at this time in order that each of the parties may know his or her respective rights and duties and act accordingly. WHEREFORE, Plaintiffs request relief as set forth below.
RELIEF REQUESTED WHEREFORE, Plaintiffs pray for relief as follows:

7 1. A determination by this Court that this action may be maintained as a class action.

8 2. 9 10 11 12

The issuance of a declaratory judgment that Defendants have violated the Americans with Disabilities Act; the Rehabilitation Act of 1973; the Individuals with Disabilities Education Act; Goals 2000, Title I, the California Education Code, California Government Code § 11135, et seq., and the Constitutions of the United States and

13

California.

14 3. 15
16 4.
17
18

The issuance of a preliminary injunction staying the administration of the CAHSEE in Spring of 2002. The issuance of a permanent injunction ordering Defendants to provide appropriate protections for plaintiff students as required by law, including but not limited to:

19

(a) developing and providing alternate assessments to all disabled students who require

20

such an assessment to demonstrate their mastery of state content standards; (b) issuing

21 regulations and establishing procedures by which plaintiff students and their parents can

22 request appropriate reasonable accommodations on the CAHSEE, as well as appropriate
23

24

standards for consideration and granting of such requests; (c) establishing an appeals

25

process by which students can appeal denials of accommodations requests; (d) effectively

26

disseminating appropriate information about policies regarding the CAHSEE to all

27

parents and students; (e) taking all steps necessary to ensure that the CAHSEE is valid

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

38

Case3:01-cv-01780-CRB Document46 Filed12/10/01 Page39 of 39

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 2 3 4
5. 5 6

and reliable for students with disabilities; (f) taking all steps necessary to ensure that use of the CAHSEE is consistent with relevant, nationally recognized professional and technical standards for such assessments. Retention of jurisdiction by this Court until such time as the Court is satisfied that Defendants’ unlawful policies, practices, acts, and omissions complained of herein have

7

been remedied and will not recur.

8 6. An award of reasonable attorneys’ fees and costs.

9 7.

Such other and further relief as the Court deems just and proper.

10

DATE: December 4, 2001 11

12 Respectfully submitted,

13

By:

S/Sid Wolinsky

SID WOLINSKY

14

DISABILITY RIGHTS ADVOCATES

449 15th Street, Suite 303

15

Oakland, California 94612

Telephone: (510) 451-8644

16

Facsimile: (510) 451-8511

17

TTY:

(510) 451-8716

18

19

20 \\Server\cases\Chapman.CalDeptofEd\pleadings\complaint\1-Am-complaint.wpd

21

22

23

24

25

26

27

28

First Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

39

 
 Case3:01-cv-01780-CRB Document120 Filed01/16/02 Page1 of 6

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 JULEUS CHAPMAN,

No. C 01-01780 CRB

12

Plaintiff,

ORDER CERTIFYING CLASS

13 v.

14 CA DEPT OF EDUCATION,

15

Defendant.

/

16

17

In 1999 the California Legislature passed S.B. 2, which requires that all California high school

18 students, starting with the class of 2004, pass an exit exam to graduate. Cal. Ed. Code § 60851(a).

19 Plaintiffs in this action allege that the exit exam requirement, as currently structured, illegally discriminates

20 against disabled students. Plaintiffs have moved for an order certifying this case as a class action under

21 Federal Rules of Civil Procedure 23(a) and (b)(2). Plaintiffs propose that individuals Juleus Chapman,

22 Jennifer Lyons, and Ryan Smiley, and the organization Learning Disabilities Association of California act as

23 class representatives and that Disability Rights Advocates and Lieff, Cabraser, Heimann & Bernstein, LLP 24 act as class counsel.1

25

INTRODUCTION

26

Plaintiffs Juleus Chapman and Jennifer Lyons are public school students in the class of 2005

27 (freshmen) with dyslexia. Plaintiff Ryan Smiley is in the class of 2004 (sophomore). He suffers from

28

1Plaintiffs also moved the Court for partial summary judgment. The Court has reserved its ruling on that motion.

Case3:01-cv-01780-CRB Document120 Filed01/16/02 Page2 of 6

United States District Court For the Northern District of California

1 dyslexia and dysgraphia (a writing disability which affects letter spacing, spelling, and word choice).

2 Plaintiff Learning Disabilities Association of California (“LDA-CA”) is an organization consisting of parents,

3 teachers, and other professionals working with disabled children.

4

Defendants are: 1) the California Department of Education, 2) the California Board of Education,

5 3) Delaine Eastin, State Superintendent of Public Instruction and Director of Education for the California

6 Department of Education, 4) the Fremont Unified School District (“Fremont”), and 5) Sharon Jones,

7 Superintendent of Fremont. The law requires the Superintendent of Public Instruction, defendant Delaine

8 Eastin, to develop and implement the exit exam.

9

Plaintiffs allege that defendants have failed to: 1) provide an “alternate assessment” to the exit exam,

10 2) provide reasonable accommodation for taking the exit exam, 3) adjust the curriculum of disabled

11 students so that they are prepared for the exit exam, and 4) ensure the validity of the exit exam itself. The

12 First Amended Complaint states causes of action under: 1) the Americans with Disabilities Act, 2) the

13 Rehabilitation Act of 1973, 3) the Individuals with Disabilities Education Act, 4) the Educate America Act,

14 5) the Improving America’s Schools Act of 1994, 6) California Education Code § 60850, 7) California

15 Government Code § 11135, 8) the due process clause of the federal constitution, and 9) the equal

16 protection clause of the California constitution. Plaintiffs seek declaratory and injunctive relief only.

17

BACKGROUND

18

The exit exam was administered to freshmen in the class of 2004 on a voluntary basis in March

19 2001. In March of this year, the exit exam will be administered to all members of the class of 2004

20 (sophomores) who have not already passed the exam.

21

Named plaintiffs are educated in accordance with personalized plans mandated by federal law:

22 either an Individualized Education Program (“IEP”) pursuant to the Individuals with Disabilities Education

23 Act (“IDEA”), or a Section 504 Education Plan (“504 Plan”) pursuant to the Rehabilitation Act of 1973.

24 These plans, created by educators, parents, and children, specify the educational needs, including

25 curriculum, of individual disabled children. Among the items detailed in the plans are accommodations for

26 test taking during school. Pursuant to these plans, plaintiff Chapman uses a laptop computer for school

27 tests. Smiley uses a calculator and a laptop computer, and has his test presented orally. Lyons is permitted

28 to use a spell checker, a calculator, a computer, a scanner, and a tape recorder.

2

Case3:01-cv-01780-CRB Document120 Filed01/16/02 Page3 of 6

United States District Court For the Northern District of California

1

DISCUSSION

2 I. Legal Standard

3

Plaintiff bears the burden of proving that certification is appropriate. See In re Northern Dist. of

4 Calif., Dalcon Shield IUD Prod. Liab. Litig. , 693 F.2d 847, 854 (9th Cir. 1982). Class actions must

5 satisfy all four requirements set forth in Federal Rule of Civil Procedure 23(a) as well as one of the

6 categories set forth in Rule 23(b). Rule 23(a) allows class certification where “the proponent shows: (1) the

7 class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact

8 common to the class, (3) the claims or defenses of the representative parties are typical of the claims or

9 defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the

10 class.” Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237-38 (9th Cir. 2001).

11

Certification is appropriate under Rule 23(b)(2) where “the party opposing the class has acted or

12 refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief

13 or corresponding declaratory relief with respect to the class as a whole.”

14 II. Class Definition

15

Plaintiffs move to certify a class of: “All students with disabilities who have been or will be required

16 to take the California High School Exit Exam.” Defendants counter that this class definition is too broad

17 because all students with disabilities do not qualify for, or even need, test accommodations, modifications,

18 or alternate assessment. If a class is to be certified, defendants argue that it should consist only of

19 individuals that cannot read or write at the grade level required for the exit exam and who cannot pass with

20 the accommodations and modifications currently provided for under California law.

21

The Court agrees that the proposed class definition is too broad. Indeed, the proposed language

22 would seem to include children with physical disabilities who face no disadvantage whatsoever related to

23 the exit exam. The Court is convinced that a narrower and more precise class definition is appropriate.

24 Accordingly, the court will consider certification in the context of the following potential class definition:

25

All students eligible for an Individualized Education Program (“IEP”) pursuant to the Individuals

with Disabilities Education Act or a Section 504 Education Plan (“504 Plan”) pursuant to the

26

Rehabilitation Act of 1973, who have taken or will be required to take the California High School

Exit Exam.

27

This definition was developed with the input of the parties at oral argument. It recognizes that some

28

students may be eligible for IEPs or 504 plans even though they are not currently participating in one.

3

Case3:01-cv-01780-CRB Document120 Filed01/16/02 Page4 of 6

United States District Court For the Northern District of California

1 III. Rule 23(a) Requirements

2

A. Numerosity

3

There are several hundred thousand potential class members. This requirement is clearly satisfied.

4

B. Common Questions of Law or Fact

5

Plaintiffs seek only declaratory and injunctive relief. Specifically they seek to ensure that the exit

6 exam requirement is applied consistent with state and federal law. Courts generally consider such

7 programmatic challenges to present common questions. See id. at 56-67; see also Armstrong v. Davis,

8 2001 WL 1506518, 13 (9th Cir. 2001) (“We have previously held, in a civil-rights suit, that commonality is

9 satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class

10 members.”) (internal citation omitted). Indeed, injunctive actions generally are considered to present

11 common questions. See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 57 (3rd Cir. 1994)

12 (“[B]ecause they do not also involve an individualized inquiry for the determination of damage awards,

13 injunctive actions by their very nature often present common questions satisfying Rule 23(a)(2).”) (internal

14 citation omitted).

15

In this case, while factual circumstances of the class members may vary somewhat, the legal

16 questions are largely identical. The action is based primarily on defendants actions, not plaintiffs’ individual

17 circumstances. The question is whether the exit exam has been, and will be, administered in compliance

18 with state and federal law. There is little need for individualized inquiry and the commonality requirement is

19 satisfied. See Califano v. Yamasaki, 442 U.S. 682 (1979).

20

C. Typicality

21

While the requirements of commonality and typicality overlap they are distinct requirements. See

22 Baby Neal, 43 F.3d at 56. “Typicality . . . is said to require that the claims of the class representatives be

23 typical of those of the class, and to be satisfied when each class member’s claim arises from the same

24 course of events, and each class member makes similar legal arguments to prove the defendant’s liability.”

25 Armstrong v. Davis, 2001 WL 1506518, 13 (9th Cir. 2001) (internal citation omitted).

26

Defendants argue that the particular disabilities of the three named plaintiffs are unique and therefore

27 the plaintiffs are not typical. Defendants’ argument misunderstands the typicality requirement. “Where an

28 action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can

represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.”

4

Case3:01-cv-01780-CRB Document120 Filed01/16/02 Page5 of 6

United States District Court For the Northern District of California

1 Baby Neal, 43 F.3d at 58. Accordingly, the fact that individual members of the class may be entitled to

2 differing remedies (e.g., alternate assessment or various reasonable accommodations) does not render the

3 named plaintiffs’ claims atypical. All claims arise out of the administration of the exit exam. The named

4 plaintiffs present typical claims because all class members are affected by the systematic administration of

5 the exit exam requirement.

6

As to typicality, this case is almost identical to Armstrong, where the Ninth Circuit concluded that,

7 “[t]he plaintiffs all suffer a refusal or failure to afford them accommodations as required by statute, and are

8 objects of discriminatory treatment on account of their disabilities” in finding that the claims of the named

9 plaintiffs where typical. Armstrong v. Davis, 2001 WL 1506518, 14 (9th Cir. 2001) (internal citation

10 omitted).

11

The typicality requirement is satisfied.

12

D. Adequacy of Representation

13

The adequacy of representation focuses on two questions: “(a) do the named plaintiffs and their

14 counsel have any conflicts of interest with other class members and (b) will the named plaintiffs and their

15 counsel prosecute the action vigorously on behalf of the class?” In re Mego Financial Corp. Securities

16 Litigation, 213 F.3d 454, 462 (9th Cir. 2000). Defendants have pointed to no potential conflict of interest,

17 and the Court cannot identify one. Further, there is no real question about the competence of named

18 counsel, or the vigor with which they will prosecute the action. Plaintiffs are represented by Disability

19 Rights Advocates (“DRA”) and Leif, Cabraser, Heimann & Bernstein, LLP. This requirement is satisfied.

20 IV. Rule 23(b)(2) Requirements

21

Plaintiffs assert that class certification is appropriate under Rule 23(b)(2). That rule provides for

22 certification where “the party opposing the class has acted or refused to act on grounds generally applicable

23 to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with

24 respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). As set forth above, this language describes the

25 instant action. Indeed, “[c]ivil rights cases against parties charged with unlawful, class-based discrimination

26 are prime examples” of where Rule 23(b)(2) applies. Amchem Products, Inc. v. Windsor, 521 U.S. 591,

27 614 (1997).

28

Defendants concede the general applicability of this section. They contend, however, that

certification is premature. They argue that a proper class can be defined only after the policies and

5

Case3:01-cv-01780-CRB Document120 Filed01/16/02 Page6 of 6

United States District Court For the Northern District of California

1 procedures surrounding the exit exam are solidified and the characteristics of students adversely affected, if

2 any, are determined.

3

However, Rule 23(c)(1) provides that “as soon as practicable after the commencement of an action

4 brought as a class action, the court shall determine by order whether it is to be so maintained.”

5 Furthermore, class certification should ordinarily be decided before a dispositive motion, including a motion

6 for summary judgment, is resolved.2 See Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997); Wright v.

7 Schock, 742 F.2d 541, 545 (9th Cir. 1984). While defendants emphasize the dynamic nature of the

8 policies and procedures governing the exit exam requirement, a few basic facts remain. Under current law,

9 members of the class of 2004 must pass the exit exam to graduate, and they must take the exam in March.

10

CONCLUSION

11

The plaintiffs have met their burden of showing that class certification is appropriate. The Court

12 hereby certifies the following class:

13

All students eligible for an Individualized Education Program (“IEP”) pursuant to the

Individuals with Disabilities Education Act or a Section 504 Education Plan (“504 Plan”)

14

pursuant to the Rehabilitation Act of 1973, who have taken or will be required to take the

California High School Exit Exam.

15

The Court further certifies individuals Juleus Chapman, Jennifer Lyons, and Ryan Smiley, and the

16

organization Learning Disabilities Association of California as class representatives and Disability Rights

17

Advocates and Lieff, Cabraser, Heimann & Bernstein, LLP as class counsel.

18

IT IS SO ORDERED.

19

Dated: January 16, 2002

/s/

20

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28 2Besides the motion for partial summary judgment which was filed concurrently with the motion for
class certification, plaintiffs have also filed a motion for preliminary injunction.

G:\CRBALL\2001\1780\Order2 Certifying Class.wpd

6

 
 Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page1 of 15

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 JULEUS CHAPMAN et al.,

No. C 01-01780 CRB

12

Plaintiffs,

CLASS ACTION

13 v. 14 CA DEPT OF EDUCATION et al.,

ORDER RE: PRELIMINARY INJUNCTION

15

Defendants.

/

16

17

Plaintiffs seek a preliminary injunction to halt the administration of the California High School Exit

18 Exam (“CAHSEE”) currently scheduled for March 5, 6, and 7, 2002. As an alternative, plaintiffs propose

19 making the CAHSEE voluntary for all students. As set forth below, the Court concludes that plaintiffs have

20 shown that preliminary relief is warranted. Absent a court order, the March administration of the CAHSEE

21 is likely to violate rights guaranteed to learning disabled students under federal law. However, the scope of

22 relief prayed for is not warranted. The Court has crafted an injunction that protects the rights of learning

23 disabled students without derailing the State of California’s efforts to improve education in the State.

24

BACKGROUND

25

The CAHSEE was administered to freshmen in the class of 2004 on a voluntary basis in March

26 2001. On March 5, 6, and 7 of this year, the CAHSEE will be administered on a

27

28

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page2 of 15

United States District Court For the Northern District of California

1 mandatory basis to all members of the class of 2004 (sophomores) who have not already passed the exam.

2 Under current California law, members of the class of 2004 are required to pass the CAHSEE to receive a

3 diploma. Cal. Ed. Code § 60851(a).

4

The plaintiff class consists of learning disabled students eligible for either an Individualized

5 Education Program (“IEP”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), or a

6 Section 504 Education Plan (“504 Plan”) pursuant to the Rehabilitation Act of 1973. These plans, created

7 by a team consisting of the student (where appropriate), parents, educators, and other professionals, are

8 the blueprints of a learning disabled child’s education. They assess the current performance of a child, set

9 annual goals, and specify special education and related services a child is to receive.

10

Federal regulations require the IEP to specifically address state-wide assessments such as the

11 CAHSEE. See 34 C.F.R. § 300.347(a)(5)(i) (The IEP must include a “statement of any individual

12 modifications in the administration of State or district-wide assessments of student achievement that are

13 needed in order for the child to participate in the assessment.”). Where the IEP team determines that a

14 child cannot participate in a particular state-wide assessment, even with modifications, the IEP must include

15 a statement of why the state-wide assessment is not appropriate and how the child will be assessed. See

16 34 C.F.R. § 300.347(a)(5)(ii). The evidence before the Court, however, suggests that, with regard to the

17 CAHSEE, most IEP teams have not had time to comply with these provisions.

18

IEPs in California do address other testing situations. For example, pursuant to their IEPs, the

19 named plaintiffs take classroom tests with certain accommodations. Chapman uses a laptop computer.

20 Smiley uses a calculator and a laptop computer and has his tests presented orally. Lyons is permitted to

21 use a spell checker, a calculator, a computer, a scanner, and a tape recorder. Among other matters, this

22 order addresses the extent to which similar accommodations are appropriate for the CAHSEE.

23

DISCUSSION

24

Plaintiffs claim that a preliminary injunction is warranted on five independent grounds: 1) there is no

25 alternate assessment to the CAHSEE, 2) required accommodations are not provided to learning disabled

26 students taking the CAHSEE, 3) the test violates due process because it covers materials that students have

27 had no opportunity to learn, 4) the test is invalid, and 5) the CAHSEE fails to conform to nationally

28 recognized standards.

2

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page3 of 15

United States District Court For the Northern District of California

1

As set forth below, the Court concludes that a limited preliminary injunction is warranted based on

2 the first and second of these grounds.

3 I. Legal Standard

4

Traditionally, a preliminary injunction will issue where the plaintiff shows: 1) a likelihood of success

5 on the merits, 2) the possibility of irreparable injury, 3) a balance of hardships favoring the plaintiff, and 4)

6 that preliminary relief is in the public interest. Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999).

7 This test has evolved into the modern test that the plaintiff must “demonstrate either (1) a combination of

8 probable success on the merits and the possibility of irreparable injury if relief is not granted, or (2) the

9 existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor.”

10 First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir. 1987). While this test is phrased

11 in the disjunctive, many courts view it as essentially a single test. Viewed as a single test, the greater the

12 showing of likely success the lighter the burden in terms of the relative hardship, and vice versa. See

13 Regents of Univ. of Calif. v. ABC, Inc. , 747 F.2d 511, 515 (9th Cir. 1984).

14 II. Education Policy Generally

15

The Court notes at the outset that the State of California is afforded broad latitude in crafting public

16 education policy and setting standards for students and educators. See San Antonio Independent School

17 Dist. v. Rodriguez, 411 U.S. 1, 42-43 (1973); Brookhart v. Illinois State Bd. of Educ. , 697 F.2d 179 (7th

18 Cir. 1983); Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981). Respecting the state’s role in education

19 policy under our system of federalism, this Court “will interfere with educational policy decisions only when

20 necessary to protect individual statutory or constitutional rights.” Brookhart, 697 F.2d at 182.

21 Accordingly any relief must be “narrowly tailored to enforce federal constitutional and statutory law only.”

22 Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995).

23 III. Likelihood of Success

24

A. Standing and Ripeness

25

Defendants claim that plaintiffs lack standing and their claims are not yet ripe for adjudication.

26 Defendants argue that plaintiffs lack standing because they are unable to show particularized or imminent

27 injury. In particular, defendants point to the fact that no student has taken a mandatory CAHSEE.

28 Furthermore, no student can show that failure on the CAHSEE will result in denial of a diploma.

3

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page4 of 15

United States District Court For the Northern District of California

1

“In order to assert claims on behalf of a class, a named plaintiff must have personally sustained or

2 be in immediate danger of sustaining some direct injury as a result of the challenged statute or official

3 conduct.” Armstrong v. Davis, 275 F. 3d 849, 860 (9th Cir. 2001) (internal citation omitted). However,

4 in a class action, as alleged here, the Court may consider injuries alleged by name plaintiffs “in the context

5 of the harm asserted by the class as a whole, to determine whether a credible threat” of injury to the named

6 plaintiffs exists. Id. Based on this framework, the Court concludes that the named plaintiffs have standing.

7

Plaintiffs do not have to take and fail a defective exam to have standing. Furthermore, under the

8 IDEA, plaintiffs have a statutory right to meaningful inclusion in a state-wide assessment, such as the

9 CAHSEE, whether they pass or not. That right is violated, and harm is suffered, at the time the exam in

10 administered. The presence of harm is not dependent upon how the results are used.

11

Defendants make a related ripeness argument. This argument centers around the fact that

12 development of the CAHSEE is a highly dynamic process. Defendants argue that they need the data of

13 several CAHSEE administrations to finalize policies. They argue that the pass rate is likely to be

14 significantly higher in the future. Defendants also point to a provision in the law permitting the Board to

15 delay the date upon which the CAHSEE becomes a graduation prerequisite. Cal. Ed. Code § 60859.

16

The Court accepts all of this as true. However, the CAHSEE has already been administered once

17 and will be administered again in March. While the Board may delay the effective date at which the

18 CAHSEE becomes a graduation requirement, the fact remains that under current law the class of 2004

19 must either pass the CAHSEE or be granted a waiver to receive a diploma. The mere possibility that

20 intervening action might rectify allegedly illegal behavior does not render this lawsuit unripe.

21

Even more fundamentally, as stated above, plaintiffs have a right to be meaningfully included in the

22 March CAHSEE, regardless of how the test results are used. This suit is ripe.

23

B. Private Right of Action

24

Defendants claim that there is no private right of action to enforce the IDEA’s provisions regarding

25 accommodations and alternate assessments. No case cited by either party specifically addresses a private

26 right of action under these provisions.

27

The IDEA specifically provides a private right of action, after exhaustion of administrative remedies,

28 for claims “relating to the identification, evaluation, or educational placement of the child, or the provision of

4

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page5 of 15

United States District Court For the Northern District of California

1 a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6). Defendants claim that the

2 inclusion of these specific rights of action evinces a Congressional intent to preclude a private right of action

3 for other matters.

4

However, as recognized by the Third Circuit in Beth V. by Yvonne V. v. Carroll , 87 F.3d 80 (3rd

5 Cir. 1996), the statute does not just provide a private right to ensure provision of a free appropriate public

6 education. It provides a private right of action for “ any matter relating to . . . the provision of a free

7 and appropriate public education.” 20 U.S.C. § 1415(b)(6) (emphasis added). On the basis of this

8 language, the Beth V. court permitted a private action seeking injunctive and declaratory relief against the

9 Pennsylvania Department of Education for allegedly failing to comply with federal regulations governing the

10 handling of complaints. See id.

11

Therefore, because meaningful participation in state-wide assessments such as the CAHSEE is an

12 important aspect of public education, it is protected by a private right of action under the IDEA.

13

C. Exhaustion of Administrative Remedies

14

The IDEA requires that administrative remedies be exhausted before filing a civil action in some

15 cases. See 20 U.S.C. § 1415(i)(2)(A). As stated by the Ninth Circuit, the IDEA’s “exhaustion

16 requirement . . . recognizes the traditionally strong state and local interest in education, as reflected in the

17 statute’s emphasis on state and local responsibility.” Hoeft v. Tucson Unified School Dist. , 967 F.2d 1298,

18 1303 (9th Cir. 1992). However, a party is not required to exhaust administrative remedies where such

19 efforts would be futile or administrative remedies are inadequate. See id. at 1303-04. Nor is plaintiff

20 required to exhaust administrative remedies where they challenge a policy or practice of general

21 applicability. See id.

22

In this case the plaintiffs are challenging the general policies of the defendants in administering the

23 CAHSEE exam. Accordingly, the Court finds that the exhaustion requirement is unlikely to bar this action.

24

D. Alternate Assessment

25

Plaintiffs claim that some members of the class are entitled to an “alternate assessment” to the

26 CAHSEE, under the IDEA. The IDEA “provides federal funds to assist state and local agencies in

27 educating children with disabilities, but conditions such funding on compliance with certain goals and

28 procedures.” Ojai Unified School Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). With regard to an

5

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page6 of 15

United States District Court For the Northern District of California

1 alternate assessment, the IDEA requires the following:

2

Children with disabilities are included in general State and district-wide assessment

programs, with appropriate accommodations, where necessary. As appropriate, the State

3

or local educational agency–

4

(i) develops guidelines for the participation of children with disabilities in

alternate assessments for those children who cannot participate in State and

5

district-wide assessment programs; and

6

(ii) develops and, beginning not later than July 1, 2000, conducts those

alternate assessments.

7

20 U.S.C. § 1412(a)(17)(A).

8

Unfortunately there is no case law defining an “alternate assessment” in the context of the IDEA to

9

guide the Court in this case. As defined in the academic literature, an alternate assessment could include an

10

interview and/or oral presentation, teacher observations, checklists and inventories, or a review of a

11

portfolio of the student’s work over an academic period. Despite this ambiguity, it is clear that no alternate

12

assessments were offered for the 2001 administration of the CAHSEE.

13

There is evidence before the Court that some students are unable to meaningfully access the

14

CAHSEE regardless of the accommodations and/or modifications offered. See Declaration of Dr. Susan

15

Vogel; Declaration of Dr. Kay Runyan. For these students, the CAHSEE will not be a valid measure of

16

their academic achievement. Some of these students are performing at a high school level and have

17

mastered the CAHSEE subject matter. See Vogel Decl. ¶ 11; Runyan Decl. ¶ 10-14. Some of these

18

students are unable to master a high school level curriculum. See Vogel Decl. ¶ 11; Runyan Decl. ¶ 15-20.

19

As is clear from the language of the IDEA, both sets of students are entitled to an alternate assessment.

20

The fact that some of these students are incapable of mastering the content of the CAHSEE is of no

21

importance; they are still entitled to a valid assessment of their capabilities.

22

Defendants argue that the waiver policy satisfies the IDEA’s requirement for an alternate

23 assessment.1 The waiver policy is evolving. But in its present form, the Court concludes that the waiver

24

policy is unlikely to satisfy the IDEA requirement for an alternate assessment because: 1) the school district

25

not the individual applies for the waiver, 2) the school district has discretion in determining whether to apply

26

27

1Defendants had previously argued that the IDEA does not apply to the CAHSEE because the

CAHSEE is not a “state-wide assessment,” but rather a tool for measuring individual achievement. It is not

28 clear whether defendants still make this argument. Regardless, by both the terms of the IDEA and the

California implementing statute, the Court is convinced that the IDEA applies to the CAHSEE.

6

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page7 of 15

United States District Court For the Northern District of California

1 for the waiver, and 3) the State Board of Education retains discretion in determining whether to grant a

2 waiver. See California State Board of Education Policy 01-07 at 1. By contrast the IDEA creates an

3 entitlement on the part of individual students.

4

The State has proposed regulations that would require the school district to apply for a waiver.

5 See California State Board of Education document dated January 2002. However, even under the

6 proposed regulations the State Board of Education retains discretion in determining whether to grant a

7 waiver.

8

But a further, more fundamental, problem exists under any even speculative version of the waiver

9 policy. The waiver policy does not address that group of students unable to access the CAHSEE

10 regardless of the accommodations and/or modifications provided. As discussed above, the evidence

11 before the Court shows that there are individuals for whom the CAHSEE, even with modification, will not

12 be an accurate measure of academic achievement. For these individuals, the State’s waiver policy is

13 meaningless, and therefore cannot satisfy the IDEA requirement for an alternate assessment. For these

14 individuals the waiver policy is meaningless because the possibility of a waiver is only triggered when a

15 student achieves the equivalent of a passing score on the CAHSEE--a test that they are unable to access.

16 Even if the State can ultimately deny a high school diploma to these students, a question which the Court

17 does not reach today, the State cannot deny these students a meaningful assessment of their academic

18 achievement when such an assessment is available to all other students.

19

E. Accommodation

20

The question of accommodation on the CAHSEE is substantially confused by the tendency to

21 conflate two separate and distinct issues. The first issue is what accommodations and/or modifications are

22 students entitled to when actually taking the CAHSEE. The second distinct issue is whether federal law

23 requires the State to treat scores achieved with certain accommodations and/or modifications the same way

24 it treats scores achieved by students without accommodation and/or modification. With the CAHSEE only

25 days away, the Court must address the first issue now. No similar urgency requires an answer to the

26 second issue. Any benefit to an immediate answer to the question of what the State must do with the test

27 scores is outweighed by the benefit of extra time to brief and deliberate the issue fully.

28

With the understanding that the Court is focused on the issue of what accommodations must be

7

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page8 of 15

United States District Court For the Northern District of California

1 permitted in actually taking the test, the starting point is again the language of the IDEA which provides:

2

Children with disabilities are included in general State and district-wide assessment

programs, with appropriate accommodations, where necessary. As appropriate, the State

3

or local educational agency–

4 20 U.S.C. § 1412(a)(17)(A). The regulations contain similar language:

5

Children with disabilities are included in general State and district-wide assessment

programs, with appropriate accommodations and modifications in administration, if

6

necessary

7 34 C.F.R. § 300.138.

8

In defining “appropriate accommodations” under the IDEA the most logical place to look would be

9 to a student’s IEP or 504 plan. However, the IDEA does not explicitly incorporate this definition, and

10 there is some limited authority suggesting that the definitions are not identical.

11

For example, in Alabama Dept. of Educ., 29 IDELR 249 (1998), the Office for Civil Rights

12 (OCR) in the U.S. Department of Education, concluded that a state could deny the use of a reading device

13 for a graduation exam, even though the student’s IEP permitted it. However, the OCR, by the terms of this

14 decision and others cited by defendants, is charged with interpreting and enforcing Section 504 of the

15 Rehabilitation Act and the Americans with Disabilities Act, not the IDEA. The specific reference to an IEP

16 plan, which is provided for by the IDEA, is somewhat incongruous in this context, but the decision by its

17 terms does not express an opinion as to the permissibility of the state policy under the IDEA.

18

Defendants also cite to an Indiana Court of Appeals decision. In that case, the court found that the

19 state did not have to permit test taking accommodations prescribed by the IEP to students taking an high

20 school exit exam. See Rene ex rel. Rene v. Reed, 751 N.E.2d 736, 746-47. However, that case reached

21 its conclusion with little analysis. To the extent it holds that students are not entitled to accommodations

22 during test taking this Court disagrees.

23

The Court finds a U.S. Department of Education memorandum, from the Office of Special

24 Education Programs, entitled “Guidance on Including Students with Disabilities in Assessment Programs,”

25 more persuasive in construing the accommodations requirement of the IDEA. In discussing design of IEP

26 plans, the memorandum states:

27

IDEA gives the IEP team the authority to determine what, if any, accommodations or

modifications are needed in order for a child with a disability to participate in an

28

assessment. However, state and local school agencies have the authority to determine how

test scores are reported and used, and the may limit the use of test scores if certain

8

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page9 of 15

United States District Court For the Northern District of California

1

accommodations or modifications are involved.

2 Memorandum from the U.S. Department of Education, Office of Special Education Programs, to State

3 Directors of Special Education et al., #10 (January 17, 2001), available at

4 http://www.ed.gov/offices/OSERS/OSEP/Products/omip.html. As this memo suggests, an “appropriate

5 accommodation” under the IDEA is one necessary to access the test. Id. at #6. In the context of the

6 CAHSEE therefore, an “appropriate accommodation” is any accommodation necessary to render a

7 student’s score on the CAHSEE a meaningful measure of that student’s academic achievement. The

8 determination of what specific accommodations are appropriate for any specific student is ultimately best

9 left to the IEP and Section 504 process.

10

The Court’s preliminary judgment is that the Department of Education memorandum best reconciles

11 a state’s wide discretion to set and implement education policy with the IDEA’s basic mandate that all

12 students be accorded meaningful participation in any state-wide assessment programs. The state must

13 permit accommodations necessary for a student to access a state-wide assessment such as the CAHSEE.

14 This way a student’s score provides a meaningful measure of achievement. This type of feedback when

15 measured against clearly articulated standards helps hold educators accountable for teaching all students--a

16 key goal of the IDEA. The feedback is also valuable to students and parents.

17

At the same time, a state may set specific standards and require any student seeking a diploma to

18 satisfy them. Of course, federal law places some limits on a state’s discretion to set educational standards.

19 Those limits are not set today. By requiring all appropriate accommodations, the IDEA does not interfere

20 with the state’s prerogative to set these standards; it merely ensures that the state is held to account for its

21 efforts in helping all students meet them.

22

F. Other Substantive Arguments

23

The plaintiffs have not made a showing of likely success on the merits in their other substantive

24 claims. Plaintiffs have cited limited case law supporting the proposition that it is a violation of due process

25 to test students on material they have not had an adequate opportunity to learn. However, the present state

26 of the evidence does not reveal an asymmetry between what students are taught and the material tested on

27 the CAHSEE implicating due process concerns. Plaintiffs’ arguments regarding test validity boil down to a

28 battle of experts. At this point the Court cannot credit one expert over another.

9

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page10 of 15

United States District Court For the Northern District of California

1

G. Conclusion

2

The Court concludes that plaintiffs have shown they are likely to prevail on two separate IDEA

3 claims. First, it appears that the IDEA requires school districts to permit students to take the CAHSEE

4 with appropriate accommodations. Second, under the IDEA it appears that the State must provide an

5 alternate assessment to the CAHSEE to students who are unable to access the test due to a learning

6 disability.

7

Normally the State would be required to permit accommodations or offer an alternate assessment

8 only to the extent they were prescribed by a student’s IEP or Section 504 plan. However, in this instance,

9 the Court concludes that IEP and Section 504 teams have not had sufficient time or notice to address the

10 CAHSEE. Therefore students and parents should not be penalized if a plan fails to address the CAHSEE

11 specifically.

12 IV. Possibility of Irreparable Injury

13

As stated above, administration of the CAHSEE threatens to violate specific statutory rights of

14 learning disabled students. Regardless of how the CAHSEE scores are used, the plaintiffs have a right to

15 participate meaningfully in the assessment provided by the CAHSEE. As stated above, it appears that

16 administration of the CAHSEE will violate this right. Furthermore, because the receipt of a diploma is

17 conditioned upon passage of the CAHSEE, administration of the CAHSEE without protections plaintiffs

18 may be entitled to under federal law could effectively deny plaintiffs an opportunity to receive a diploma.

19

Both of these injuries, one probable and the other possible, implicate a dignity interest in full

20 participation in the educational process. Harm to a student’s dignity and educational prospects constitutes

21 irreparable injury. See Cupolo v. Bay Area Rapid Transit , 5 F. Supp. 2d 1078, 1084 (stating that “

22 [i]njuries to individual dignity and deprivations of civil rights constitute irreparable injury” with regard to the

23 ADA); see also Chalk v. United States Dist. Court, 840 F.2d 701, 710 (9th Cir. 1988) (finding that

24 reassignment to different job constitutes irreparable injury, even though pay was equivalent, due to

25 psychological harm).

26 V. Balance of Hardships/Scope of Relief

27

Because plaintiffs have shown a likelihood of success on the merits and the possibility of irreparable

28 harm, preliminary relief is warranted. Having made this showing, however, the scope of relief remains to be

10

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page11 of 15

United States District Court For the Northern District of California

1 determined. Only a small portion of students scheduled to take the CAHSEE in March are members of the

2 plaintiff class.

3

As stated above, see section II supra, the State is afforded wide discretion in crafting education

4 policy and setting standards. The Court will not second guess the judgment of the State of California that

5 the CAHSEE is a vital component of a standards-based reform effort. Indeed, California is not alone in

6 this judgment. Twenty-seven states have high school exit exams. See American Federation of Teachers,

7 Making Standards Matter 2001 at 5, 29 available at

8 http://www.sft.org/edissues/standards/MSM2001/Index.htm. Indeed the IDEA itself expresses the

9 opinion that learning disabled students can benefit from higher expectations and standards. See 20 U.S.C.

10 § 1400(c)(5) (“Over 20 years of research and experience has demonstrated that the education of children

11 with disabilities can be made more effective by . . . having high expectations for such children and ensuring

12 their access in the general curriculum to the maximum extent possible.”). Accepting the State’s judgment

13 that the CAHSEE is a vital component of an effort to improve public education, the Court has no trouble

14 concluding that granting plaintiffs the relief they seek, either enjoining the March administration of the

15 CAHSEE altogether or making it voluntary for all students, would impose significant hardship on the State.

16 Indeed, in determining the appropriate scope of preliminary relief, this Court must consider the general

17 public interest served by permitting the March CAHSEE to go forward. See Caribbean Marine Services

18 Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“[T]he district court must consider the public

19 interest as a factor in balancing the hardships when the public interest may be affected.”)

20

Because education is a core state function, relief from this Court must be “narrowly tailored” and

21 constrain a state’s actions only where necessary to protect the individual rights of the class members. See

22 Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995).

23 //

24

CONCLUSION

25

Therefore, the Court ORDERS as follows:

26

27

28

11

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page12 of 15

United States District Court For the Northern District of California

1

(1) Students shall be permitted to take the CAHSEE with any accommodations or modifications 2

2 their IEP or Section 504 plan specifically provides for the CAHSEE. If a student’s IEP or Section 504

3 plan does not address the CAHSEE specifically, the student shall be permitted to take the CAHSEE with

4 any accommodations or modifications their IEP or Section 504 plan provides for standardized testing. If a

5 student’s IEP or Section 504 plan does not address either the CAHSEE specifically or standardized testing

6 generally, the student shall be permitted to take the CAHSEE with any accommodations or modifications

7 their IEP or Section 504 plan provides for general classroom testing. 3

8

(2) A student may choose to forego any accommodation or modification to which he or she is

9 entitled under this Order.

10

(3) At its December 5, 2001 meeting, the State Board of Education adopted policy number 01-

11 07, “California High School Exit Examination: Waiver of Test Passage for Specific Special Education

12 Students.” Pending further order of this Court, defendants may grant, but may not deny, a waiver under

13 this policy.

14

(4) If a student’s IEP or Section 504 plan specifically provides for an alternate assessment in lieu

15 of the CAHSEE, an alternate assessment shall be provided. If a student’s IEP or Section 504 plan does

16 not specifically address the CAHSEE but provides for an alternate assessment in lieu of general

17 standardized testing, an alternate assessment to the CAHSEE shall be provided. If a student’s IEP or

18 Section 504 plan does not specifically address the CAHSEE or standardized testing but provides for an

19 alternate assessment in lieu of general classroom testing, an alternate assessment to the CAHSEE shall be

20 provided.

21

(5) The State is directed to develop an alternate assessment to the CAHSEE forthwith. Students

22 identified as entitled to an alternate assessment in (4) above shall not be required to take the CAHSEE, but

23

24

2California has defined an “accommodation” as a change in the CAHSEE (in format, student response,

timing, or other attribute) that does not invalidate the score achieved. California has defined a “modification” 25 as a change in the CAHSEE that invalidates the test score because it fundamentally alters what the test

measures. 26

3The plaintiff class consists of all students eligible for an IEP or Section 504 plan. This order, however, 27 provides relief only to students with such a plan. The Court finds the practical difficulties of providing relief to

the entire class insurmountable. Furthermore, states are already under an affirmative obligation to identify 28 students needing special education and related services. Of course, the Court expects those efforts to continue.

12

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page13 of 15

United States District Court For the Northern District of California

1 may do so if they choose. The State shall provide an alternate assessment to the CAHSEE to these

2 students as soon as practicable.

3

(6) In order for a student covered by this Order to avail himself or herself of any rights under this

4 Order, no additional IEP or Section 504 team meeting shall be necessary.

5

(7) Nothing in this Order shall be interpreted to prevent the State from continuing to develop its

6 regulations and policies regarding the CAHSEE.

7

(8) The State shall direct all school districts to provide a copy of Appendix A to all parents and

8 guardians of children with a IEP or Section 504 plan.

9

(9) As stated above, the Court reserves for future consideration the issues of whether, and to

10 what extent, the State may treat students taking the CAHSEE with an unapproved modification or given an

11 alternate assessment differently from other students with respect to the granting of a diploma.

12

(10) The parties are ordered to appear at 10 a.m. on June 7, 2002 in Courtroom 8 to advise the

13 Court on the status of the matters discussed herein.

14

(11) This Order shall remain in effect until further order of the Court.

15

IT IS SO ORDERED.

16

17 Dated: February 21, 2002 18

/s/ CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

26

27

28

13

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page14 of 15
Appendix A

Case3:01-cv-01780-CRB Document189 Filed02/21/02 Page15 of 15
NOTICE TO ALL PARENTS AND GUARDIANS OF CHILDREN WITH AN INDIVIDUALIZED EDUCATION PROGRAM (IEP) OR A SECTION 504 PLAN
The case Juleus Chapman, et al. v. California Department of Education, et al. , No. C 01-1780 CRB is currently pending in the United States District Court for the Northern District of California. Plaintiffs in the case, a group of learning disabled students, claim that the California High School Exit Exam (CAHSEE), to be given to tenth graders on March 5, 6, and 7, 2002, violates rights guaranteed to learning disabled students under federal law. The Court has issued an Order that requires the March CAHSEE to be administered in accordance with the following procedures:
(1) Students shall be permitted to take the CAHSEE with any accommodations or modifications 1 their IEP or Section 504 plan specifically provides for the CAHSEE. If a student’s IEP or Section 504 plan does not address the CAHSEE specifically, the student shall be permitted to take the CAHSEE with any accommodations or modifications their IEP or Section 504 plan provides for standardized testing. If a student’s IEP or Section 504 plan does not address either the CAHSEE specifically or standardized testing generally, the student shall be permitted to take the CAHSEE with any accommodations or modifications their IEP or Section 504 plan provides for general classroom testing.
(2) Some of the accommodations and modifications to which students are entitled under this Order, pursuant to (1) above, have already been approved by the State. With regard to others, the State has determined that they will “invalidate” the test score and a waiver will be required before a diploma is granted. While this Order requires that students be permitted to take the CAHSEE with any accommodations or modifications defined in (1) above, the Court has not yet decided how taking the CAHSEE with a modification not approved by the State will affect the receipt of a diploma. A student may choose to forego any accommodation or modification to which he or she is entitled under this Order.
(3) If a student’s IEP or Section 504 plan specifically provides for an alternate assessment in lieu of the CAHSEE, an alternate assessment shall be provided. If a student’s IEP or Section 504 plan does not specifically address the CAHSEE but provides for an alternate assessment in lieu of general standardized testing, an alternate assessment to the CAHSEE shall be provided. If a student’s IEP or Section 504 plan does not specifically address the CAHSEE or standardized testing but provides for an alternate assessment in lieu of general classroom testing, an alternate assessment to the CAHSEE shall be provided. Students entitled to an alternate assessment shall not be required to take the CAHSEE, but may do so if they chose.
(4) While this Order requires that an alternate assessment be provided to certain students, the Court has not yet decided how an alternate assessment will affect the receipt of a diploma.
(5) In order for a student covered by this Order to avail himself or herself of any rights under this Order, no additional IEP or Section 504 team meeting shall be necessary.
1California has defined an “accommodation” as a change in the CAHSEE (in format, student response, timing, or other attribute) that does not invalidate the score achieved. California has defined a “modification” as a change in the CAHSEE that invalidates the test score because it fundamentally alters what the test measures.

 
 Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page1 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 SID WOLINSKY (Bar No. 33716)

MELISSA W. KASNITZ (Bar No. 162679)

2 ALISON M. AUBREJUAN (Bar No. 194107)

DISABILITY RIGHTS ADVOCATES

3 449 15th Street, Suite 303

Oakland, California 94612

4 Telephone: (510) 451-8644

Facsimile: (510) 451-8511

5 TTY:

(510) 451-8716

Email:

general@dralegal.org

6

ELIZABETH J. CABRASER (Bar No. 83151)

7 MORRIS A. RATNER (Bar No. 157554)

EVE H. CERVANTEZ (Bar No. 164709)

8 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

Embarcadero Center West

9 275 Battery Street, 30th Floor

San Francisco, CA 94111

10 Telephone: (415) 956-1000

Facsimile: (415) 956-1008

11 Email:

mratner@lchb.com

12 Attorneys for Plaintiffs

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 JULEUS CHAPMAN, by his guardian ad

CASE NO. C-01-01780 CRB/JCS

17

litem MONIQUE CHAPMAN; RYAN SMILEY, by his guardian ad litem KRISTA

CLASS ACTION

18

SMILEY; JENNIFER LYONS, by her guardian ad litem SUSAN LYONS;

SECOND AMENDED COMPLAINT

19

ASHLEY HARLEY, a minor, by her guardian ad litem Jacqueline Harley; PHILIP

DEMAND FOR JURY TRIAL

20

CACHO, a minor, by his guardian ad litem Ann McDonald-Cacho; KYLE STOFLE, a

21

minor, by his guardian ad litem Karen Bruno; JUSTIN PIERCE, a minor, by his guardian

22

ad litem Melody Arevalo; ASHTON THADANI, a minor, by his guardian ad

23

litem Louise Dutka; on behalf of themselves and all individuals similarly situated, and

24

LEARNING DISABILITIES ASSOCIATION OF CALIFORNIA,

25 26 v.

Plaintiffs,

27

CALIFORNIA DEPARTMENT OF EDUCATION; CALIFORNIA BOARD OF

28

EDUCATION; JACK O’CONNELL, in his official capacity as Superintendent of Public

Instruction in California,

Defendants.

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page2 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

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

INTRODUCTION This action arises out of intentional discrimination by Defendant CALIFORNIA DEPARTMENT OF EDUCATION (“CDE”), Defendant CALIFORNIA BOARD OF EDUCATION (“CBE”), and Defendant JACK O’CONNELL in his official capacity as Superintendent of Public Instruction against hundreds of thousands of students with disabilities in the California public school system. Defendants CDE, CBE, and O’CONNELL (collectively referred to herein as “DEFENDANTS”) are, without adequate preparation or safeguards, hastily forcing the California High School Exit Exam (hereafter referred to as the “Exit Exam” or “CAHSEE”) upon these disabled students, destroying and ignoring their educational attainments and self esteem, flagrantly violating their rights, and damaging their academic, professional and employment opportunities forever. Because of Defendants’ refusal to obey federal law, and Defendants’ almost total disregard of the educational interest of children with disabilities, over 90% of public school children with disabilities who have taken the Exit Exam have failed it. Before forcing a high-stakes standardized high school exit exam on children with disabilities, Defendants were required under federal law at a minimum, (a) to have formulated and have in place a reasonable accommodations policy, (b) to have developed and conducted alternate assessments for those disabled children who need them, (c) to have established the validity of using the CAHSEE for high-stakes consequences (such as a prerequisite to graduation) for individual students, (d) to establish and affirmatively demonstrate the curricular and instructional validity of the test (i.e., that disabled students are not being tested on matters they never had a chance to learn), (e) to refrain from using the results of a single test as the sole determinant of whether a child graduates, (f) to have a procedure available for requesting accommodations and appealing denials of accommodation requests, if necessary, (g) to disseminate, in timely fashion, clear information about all of the foregoing to all interested parents, teachers and

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

2

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page3 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

administrators in the State so that they can make rational decisions about children’s

2

education, and (h) allow a sufficient period of time between the creation of the test (and

3

all of its safeguards) and the actual implementation of the test.

4 3. Although the foregoing safeguards are constitutional requirements, as well as mandated

5

by statute, Defendants have not fulfilled any of them.

6 4. In formulating and administering the CAHSEE, DEFENDANTS have thus failed and

7

refused to take into account the needs of children with disabilities. As a result, the Exit

8

Exam discriminates against children with disabilities in numerous ways.

9 5. For example, DEFENDANTS are required under federal law to provide an “alternate

10

assessment” to the CAHSEE, as a way of allowing children whose disabilities prevents

11

them from demonstrating their mastery of content standards on the CAHSEE to show

12

their abilities. In flagrant violation of that requirement, DEFENDANTS have stated that

13

they will not develop an alternate assessment, and instead are requiring all students to

14

take the CAHSEE, regardless of whether an alternate assessment would be a more

15

appropriate measure of the students’ knowledge, skills and abilities. DEFENDANTS are

16

fully aware of their failure to fulfill their legal obligation to provide an alternate

17

assessment to disabled students. Many students with disabilities should participate in an

18

alternate assessment rather than the CAHSEE because an alternate assessment is the only

19

method by which to provide an accurate measure of the students’ abilities and skills.

20 6. In addition, DEFENDANTS have refused to establish an appropriate and effective

21

procedure for students with disabilities to request reasonable accommodations on the

22

CAHSEE. Various steps to develop such procedures have been initiated, withdrawn, and

23

changed repeatedly, even as the Exam has been adminstered, and as plans continue for it

24

to be re-administered. As a result, students, parents, and school administrators do not

25

know what process should be followed to request reasonable accommodations, and there

26

are no uniform standards for consideration of, or granting of, accommodation requests.

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

3

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page4 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 7. Subsequent to the filing of the original complaint, defendants expanded the number of

2

accommodations that children with disabilities are prohibited from using without

3

invalidating their test scores. After the Exit Exam was administered in 2001, and before

4

it was administered in 2002, defendants decided that children with disabilities would not

5

be permitted to use readers and calculators (two frequently used accommodations that are

6

absolutely necessary for some students to demonstrate what they know) without

7

invalidating their test scores. At this time, in addition to the reader and calculator,

8

children with disabilities may not use spell check devices or transcription devices without

9

invalidating their test scores. Defendants have also stated that they may continue to add

10

to the list of prohibited accommodations.

11 8. DEFENDANTS have also failed to establish any procedure whatever to review denials of

12

requests for reasonable accommodations. Thus, students who are denied

13

accommodations that they need on the CAHSEE are unable to appeal these decisions,

14

regardless of how incorrect or arbitrary the denials may be.

15 9. The CAHSEE further unfairly discriminates against students with disabilities because the

16

children are being tested on material which they have never been taught. Thus, these

17

children have not been prepared by their administrators or teachers to take the Exit Exam.

18

Throughout their educations, many of these children have studied an individualized

19

curriculum set forth in their Individualized Education Programs (IEPs) or “Section 504"

20

education plans. Now, on the CAHSEE these children are tested on material that they

21

have never been taught.

22 10. As noted by an independent consultant hired by DEFENDANTS to evaluate the

23

CAHSEE, the process of aligning students’ IEPs or Section 504 plans to match the

24

curriculum tested on the exam is a lengthy one that requires a lead time of at least several

25

years. Despite the independent consultant’s recommendation that DEFENDANTS

26

institute measures to ensure that disabled students’ IEPs and Section 504 Plans are

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

4

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page5 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

modified to align with the curriculum tested on the CAHSEE, Defendants have taken no

2

such steps.

3 11. The CAHSEE has two parts: English and mathematics. Both must be passed in order to

4

graduate. The English portion of the test, which includes multiple choice questions and

5

two essays, addresses State Board of Education standards through grade ten.

6 12. The mathematics test covers arithmetic, statistics, data analysis and probability, number

7

sense, measurement and geometry, mathematical reasoning, and algebra.

8 13. Students in the class of 2004 were permitted to take the test on a voluntary basis in the

9

spring of 2001, when they were in the ninth grade.

10 14. Subsequent to the filing of the original complaint, students in the class of 2004 who did

11

not pass the CAHSEE in spring 2001 were required to take the test in spring 2002.

12 15. Students in the class of 2004 who did not pass the CAHSEE in any previous

13

administration, and all students in all subsequent classes, will be required to take the test

14

in tenth grade, and then every year thereafter (up to three times per year) until they pass

15

both portions of the test or complete the 12th grade.

16 16. The consequences to students of failing to pass the CAHSEE are profound. All public

17

school students beginning with the Class of 2004 are required to pass the CAHSEE in

18

order to graduate from high school and receive a diploma. Regardless of how bright and

19

talented students are, how hard they work, or how high achieving they may be, students

20

who do not pass the exam will not graduate from high school, will not receive a regular

21

diploma, and will be severely disadvantaged in applying for employment and for college

22

admission.

23 17. Without the proper accommodations (or alternative assessments, if appropriate), and

24

without modification of their specialized curriculum to include the subject matter being

25

tested, it is likely that a great majority of California students with disabilities, because of

26

their disabilities, will never be able to pass the CAHSEE, no matter how many times the

27

test is given to them, and therefore will not be able to graduate from high school.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

5

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page6 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

Instead, these students will receive an inferior “Certificate of Attendance” or “Certificate

2

of Completion” that is not equivalent to a high school diploma.

3 18. By requiring children with disabilities to take discriminatory and unfair tests with high

4

stakes consequences and no alternate assessments, DEFENDANTS have created a dual

5

track system of public education in which otherwise qualified students with disabilities

6

will be relegated to the lower tier and prevented from pursuing academic, professional

7

and employment opportunities simply because of their disabilities.

8 19. Although they are fully aware of the defects of the CAHSEE as it affects students with

9

disabilities, DEFENDANTS have nevertheless chosen to proceed with the test, and have

10

already administered the exam in Spring, 2001, and Spring, Summer and Fall of 2002. In

11

contrast, other states have taken and are taking extensive steps to ensure that their

12

statewide assessment systems do not discriminate against students with disabilities.

13 20. For example, Oregon recently settled a lawsuit and agreed to adopt the recommendations

14

of a national panel of experts commissioned to study Oregon’s testing system and to

15

evaluate whether a similar high stakes testing system implemented there discriminated

16

against students with disabilities. Under the settlement, Oregon will (a) develop alternate

17

assessments for disabled students, (b) allow extensive accommodations for disabled

18

students, (c) provide comprehensive information and training to parents, teachers,

19

administrators, and IEP and 504 Plan team members regarding the assessment system and

20

participation options for students with disabilities, (d) ensure that the IEP and 504 teams

21

individually assess every disabled student to determine how that student should

22

participate in the assessment system, (e) institute a problem resolution and appeals

23

process by which students can appeal decisions regarding accommodation requests and

24

participation in an alternate assessment, and (f) conduct ongoing research regarding

25

accommodations and the validity and reliability of the assessment system for students

26

with disabilities.

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

6

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page7 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 21. DEFENDANTS have knowingly disregarded concerns, raised by their own expert

2

consultant, that the Exit Exam discriminates against disabled students. Additionally,

3

prior to instituting litigation Plaintiffs on numerous occasions contacted the Governor’s

4

office to inform the State of the multiple deficiencies in the High School Exit Exam, and

5

to seek a constructive resolution to the problem. DEFENDANTS did not provide a

6

substantive response to Plaintiffs, and as a result, Plaintiffs were forced to file this

7

lawsuit in order to protect the rights of students with disabilities.

8 22. Without immediate relief from the Court, Plaintiff students and children similarly

9

situated will be irreparably harmed in that they will be denied numerous academic,

10

professional and employment opportunities, may not graduate from high school, and will

11

experience severe damage to their self-esteem and emotional well-being.

12

JURISDICTION

13 23. The Court has subject matter jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§ 1331

14

and 1343.

15 24. The Court has jurisdiction to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201

16

and 2202.

17 25. 18

Plaintiffs are not required to exhaust the administrative procedures set forth in the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., because

19

they are challenging policies and practices of general applicability that are contrary to

20

numerous federal laws (including IDEA) and because Plaintiffs cannot obtain adequate

21

relief through administrative remedies.

22 26. Venue is proper in this Court under 28 U.S.C. § 1391(b). All Defendants reside in the

23

State of California, and a substantial part of the events giving rise to this action occurred

24

in the Northern District of California.

25

INTRADISTRICT ASSIGNMENT

26

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

7

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page8 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 27. Assignment of this action to either the San Francisco or Oakland Divisions is proper

2

because a substantial part of the events or omissions which give rise to Plaintiffs’ claims

3

occurred in Alameda County.

4

THE PARTIES

5 28. Named Plaintiff Juleus Chapman is a public school student in the class of 2005 with

6

severe dyslexia. Juleus attends Hopkins Jr. High School in Fremont, California and will

7

be required to take the CAHSEE beginning in 10th grade, and repeating it until he passes

8

or completes the 12th grade. He must pass the CAHSEE in order to graduate with a

9

diploma. Juleus’ mother, Monique Chapman, has previously filed a petition with the

10

Court to act as his guardian ad litem.

11 29. Named Plaintiff RYAN SMILEY is a public school student in the class of 2004 with

12

dyslexia and dysgraphia. Ryan attends Crescenta Valley High School in La Crescenta,

13

California, and took the CAHSEE in March 2001. Ryan failed this exam. Subsequent to

14

the filing of the original complaint, Ryan took the CAHSEE again in March 2002. Ryan

15

later learned that although he received a “passing” score on the English Language Arts

16

portion of the CAHSEE in March 2002, his score was invalidated because he used a

17

“modification.” Ryan must now seek a waiver for that portion of the exam. On his third

18

attempt, Ryan took and passed the mathematics portion of the CAHSEE during the

19

summer of 2002. If Ryan does not receive a waiver, he will be obligated to take the

20

English Language Arts portion again each year until he passes or completes the 12th

21

grade. He must pass the CAHSEE in order to graduate with a diploma. Ryan’s mother,

22

Krista Smiley, is his guardian ad litem.

23 30. Named Plaintiff JENNIFER LYONS is a public school student in the class of 2005 with

24

dyslexia. Jennifer attends Mountain Ridge Middle School in Magalia, California, and

25

will be required to take the CAHSEE beginning in 10th grade, and repeating it until she

26

passes or completes the 12th grade. She must pass the CAHSEE in order to graduate with

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

8

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page9 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

a diploma. Jennifer’s mother, Susan Lyons, has previously filed a petition with the

2

Court to act as her guardian ad litem.

3 31. Named Plaintiff ASHLEY HARLEY is a public school student in the class of 2004 with

4

dyslexia. Ashley attends Alameda High School in Alameda, California. Ashley took and

5

failed the CAHSEE in March 2001 and March 2002. Ashley took the CAHSEE again in

6

November 2002 and is awaiting her results. If Ashley remains in public school, she will

7

be obligated to take the exam again repeatedly until she passes in order to receive a high

8

school diploma. Ashley and her family fear that she will be unable to pass the CAHSEE

9

because of her disabilities and the fact that the CAHSEE tests material that Ashley has

10

never been taught. If Ashley has not passed the CAHSEE by the end of her junior year

11

(June 2003), her parents have decided to remove her from public school and place her in

12

a private school so that she can complete her high school work and obtain a high school

13

diploma. Ashley’s mother, Jacqueline Harley, is her guardian ad litem.

14 32. Named Plaintiff PHILIP CACHO is a seventeen year old with cerebral palsy. Philip

15

attended Berkeley High School in Berkeley, California until late October 2002. At

16

Berkeley High School, Philip was studying an academic curriculum and was scheduled to

17

graduate in 2004. However, Philip’s parents removed him from Berkeley High School’s

18

academic program in October 2002 because Philip needs an alternate assessment to the

19

CAHSEE and it is impossible for Philip to take, much less pass, the CAHSEE in its

20

current format, even with accommodations and “modifications.” Philip is still enrolled at

21

Berkeley High School in a non academic program of home and community-based

22

transition instruction in order to remain eligible for public services. If the CAHSEE was

23

not an insurmountable obstacle to Philip’s graduation, he would still be enrolled as a

24

diploma-track student at Berkeley High School. Philip’s mother, Ann McDonald-Cacho,

25

is his guardian ad litem.

26 33. Named Plaintiff KYLE STOFLE is a public school student in the class of 2004 with

27

dyslexia and dysgraphia. Kyle attends Pittsburg High School in Pittsburg, California.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

9

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page10 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

Kyle took and failed the CAHSEE in March 2001. Kyle took the CAHSEE again in

2

March 2002 and his test results were lost. Kyle took the CAHSEE again in September

3

2002, and is currently awaiting his results. Kyle has repeatedly been told that he must

4

pass the CAHSEE in order to graduate from high school. Kyle and his family fear that he

5

will not pass the CAHSEE because of his disabilities and the fact that the CAHSEE tests

6

material that he has never been taught. Kyle’s family has decided that if he has not

7

passed the CAHSEE by the end of his junior year (June 2003), he will move to Nevada to

8

live with his grandmother to finish high school and obtain a high school diploma. Kyle’s

9

mother, Karen Bruno, is his guardian ad litem.

10 34. Named Plaintiff JUSTIN PIERCE is a student in the class of 2004 with dyslexia and an

11

auditory processing delay. Through his sophomore year, Justin attended Vintage High

12

School in Napa, California. Justin now attends Flower Mound High School in Flower

13

Mound, Texas. Justin’s family sent him to Texas to live with relatives in order to finish

14

high school and receive a high school diploma because of their fear that he would not

15

pass the CAHSEE because of his disabilities and the fact that he has not been taught

16

much of the material tested on the exam. After two attempts, Justin managed to pass the

17

English Language Arts portion of the CAHSEE. However, Justin failed the mathematics

18

portion of the CAHSEE both in March 2001 and March 2002. Justin has experienced

19

severe stress, anxiety, and feelings of failure as a result of the CAHSEE, and in the

20

Spring of 2002 was diagnosed with depression. Justin has suffered from panic attacks

21

and insomnia. Justin and his family desperately would like for him to return to California

22

for his senior year of high school. If the CAHSEE were not an impediment to Justin’s

23

ability to graduate from high school, he would return to California and complete high

24

school in Napa. Justin’s mother, Melody Arevalo, is his guardian ad litem.

25 35. Named Plaintiff ASHTON THADANI is a public school student in the class of 2004 with

26

multiple disabilities, including attention deficit disorder, sensory integration dysfunction,

27

receptive/expressive language disorder, auditory processing issues, and post traumatic

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

10

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page11 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

stress disorder. Ashton attends Saratoga High School in Saratoga, California. Ashton

2

took the English Language Arts portion of the CAHSEE in March 2002 without any of

3

the accommodations listed in his IEP. Ashton and his mother fear that he will not be able

4

to pass the CAHSEE because it tests material that he has never been taught and because

5

he needs a number of accommodations that the State has designated as impermissible

6

“modifications.” Ashton’s mother is currently making plans to send Ashton to

7

Massachusetts so that Ashton can complete high school there and receive a high school

8

diploma. Ashton’s mother, Louise Dutka, is his guardian ad litem.

9 36. Organizational Plaintiff LEARNING DISABILITIES ASSOCIATION OF

10

CALIFORNIA (“LDA-CA”) is a 501(c)(3) non-profit volunteer organization founded in

11

1960. The purpose of LDA-CA is to promote awareness, increase knowledge, and

12

support education in a manner that optimizes fulfillment of the individual potential of

13

children and adults with learning disabilities. This is accomplished through outreach,

14

advocacy, referrals, and collaboration. LDA-CA currently serves over 2,000 parent,

15

professional, and adult members with learning disabilities through publications,

16

conferences, and 12 regional locations and a State office in Sacramento. The

17

membership of LDA-CA includes parents of Plaintiff students, including MONIQUE

18

CHAPMAN, KRISTA SMILEY, and SUSAN LYONS. LDA-CA sues on its own behalf

19

and on behalf of its members.

20 37. Defendant CALIFORNIA DEPARTMENT OF EDUCATION is the department of state

21

government responsible for administering and enforcing laws related to education. The

22

CALIFORNIA DEPARTMENT OF EDUCATION is a public entity within the meaning

23

of Title II of the Americans with Disabilities Act and other applicable laws. The

24

CALIFORNIA DEPARTMENT OF EDUCATION receives federal financial assistance

25

from the United States Department of Education and is therefore covered by the

26

requirements of Section 504 of the Rehabilitation Act of 1973. The CALIFORNIA

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

11

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page12 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

DEPARTMENT OF EDUCATION is a state educational agency and is therefore covered

2

by the requirements of the Individuals with Disabilities Education Act.

3 38. Defendant CALIFORNIA BOARD OF EDUCATION is the policy making body for

4

California public school education. The CALIFORNIA BOARD OF EDUCATION is a

5

public entity within the meaning of Title II of the Americans with Disabilities Act and

6

other applicable laws. The CALIFORNIA BOARD OF EDUCATION receives federal

7

financial assistance from the United States Department of Education and is therefore

8

covered by the requirements of Section 504 of the Rehabilitation Act of 1973. The

9

CALIFORNIA BOARD OF EDUCATION is a state educational agency and is therefore

10

covered by the requirements of the Individuals with Disabilities Education Act.

11 39. Defendant JACK O’CONNELL, sued in his official capacity, is the State Superintendent

12

of Public Instruction in California and the ex officio Director of Education for the

13

CALIFORNIA DEPARTMENT OF EDUCATION.

14 40. Defendants CALIFORNIA DEPARTMENT OF EDUCATION, CALIFORNIA BOARD

15

OF EDUCATION and JACK O’CONNELL are each responsible for the administration

16

of the CAHSEE, including, but not limited to, formation, use and ensuring its validity

17

with respect to disabled children, creating a policy of offering reasonable

18

accommodations and creating and conducting alternate assessments.

19 41. References in this complaint to DEFENDANTS include Defendant CALIFORNIA

20

DEPARTMENT OF EDUCATION, Defendant CALIFORNIA BOARD OF

21

EDUCATION and Defendant JACK O’CONNELL in his official capacity as

22

Superintendent of Public Instruction for the State of California.

23 42. References in this Complaint to Defendants, unless otherwise stated, shall be deemed to

24

refer to all defendants, and to each of them.

25 43. Plaintiffs allege that Defendants are jointly and severally liable for the claims raised in

26

this complaint.

27

CLASS ALLEGATIONS

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

12

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page13 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 44. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs bring this

2

action on their own behalf and on behalf of all persons similarly situated. The class

3

which these Plaintiffs represent is composed of all students eligible for an Individualized

4

Education Program (“IEP”) pursuant to the Individuals with Disabilities Education Act or

5

a Section 504 Education Plan (“504 Plan”) pursuant to the Rehabilitation Act of 1973,

6

who (1) attend California public schools and have taken or will be required to take the

7

California High School Exit Exam, and (2) who would attend California public schools

8

but for the CAHSEE. The class is sometimes hereafter referred to as “Plaintiff students”

9

or “Plaintiff children.”

10 45. The persons in the class are so numerous that joinder of all such persons is impracticable.

11 46. There are numerous issues of fact and questions of law common to the class. These

12

common factual issues include, but are not limited to, the following:

13

a. Defendants’ failure to develop an alternate assessment to the CAHSEE.

14

b. Defendants’ development and administration of the CAHSEE, which all public

15

high school students are required to pass to graduate from high school with a

16

diploma.

17

c. Defendants’ failure to establish a fair and lawful policy of providing reasonable

18

accommodations.

19

d. Defendants’ failure to establish the validity of using the test as a prerequisite to

20

graduation for students with disabilities.

21

e. Defendants’ failure to adopt regulations specifying either a process for requesting

22

accommodations or a standard for consideration of, and granting of, such

23

requests.

24

f. Defendants’ failure to establish an appeals process by which students can appeal

25

denials of accommodations requests.

26

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

13

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page14 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

g. Defendants’ failure to provide training and guidance to teachers, administrators,

2

and IEP and 504 Plan team members regarding the CAHSEE and participation

3

options for students with disabilities.

4

h. Defendants’ failure to modify the IEPs or 504 Plans of disabled students to align

5

with the curriculum tested on the CAHSEE.

6

i. Defendants’ administration of the CAHSEE without sufficient notice to students

7

with disabilities and their parents.

8

j. Defendants’ failure to follow established and sound psychometric standards by

9

using performance on a single test as the sole determinate of whether a child with

10

a disability graduates.

11 44. The common questions of law include, but are not limited to, the following:

12

a. Does Defendants’ failure and refusal to provide an alternate assessment to the

13

CAHSEE violate federal law?

14

b. Does Defendants’ failure to modify disabled students’ IEPs and Section 504 plans

15

to align with the curriculum tested on the CAHSEE violate federal law?

16

c. Does Defendants’ failure to establish any procedure for consideration of, or

17

granting of, requests for reasonable accommodations on the CAHSEE violate

18

federal law?

19

d. Does Defendants’ failure to establish any procedure for appealing denials of

20

requests for reasonable accommodations violate federal law?

21

e. Is the CAHSEE an invalid test for assessing the knowledge, skills and abilities of

22

students with disabilities, in violation of the due process protections of the United

23

States Constitution?

24

f. Have students with disabilities been provided with an adequate opportunity to

25

learn the material tested on the CAHSEE as required by the due process

26

protections of the United States Constitution?

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

14

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page15 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 45. The claims of the named Plaintiffs are typical of those of the class, and named Plaintiffs

2

will fairly and adequately represent the interests of the class. Plaintiffs have engaged

3

competent counsel to assist them in prosecuting their claims.

4 46. Defendants have acted and refused to act on grounds generally applicable to the class,

5

thereby making appropriate final injunctive relief and/or corresponding declaratory relief

6

with respect to the class as a whole.

7 47. References to Plaintiffs shall be deemed to include the named plaintiffs and each member

8

of the class.

9

FACTUAL ALLEGATIONS

10 48. Named Plaintiffs, who attend public schools throughout California or who would attend

11

public schools throughout California but for the CAHSEE, are students with disabilities

12

protected by federal law. The organizational plaintiff includes as members numerous

13

additional public school students with disabilities and their parents or guardians. There

14

are hundreds of thousands of disabled children who attend California’s public schools

15

and who will be required to take the High School Exit Exam and pass it in order to

16

graduate from high school with a diploma.

17 49. By virtue of their disabilities, many Plaintiff students have either a legally mandated

18

Individualized Education Program (“IEP”) pursuant to the Individuals with Disabilities In

19

Education Act (“IDEA”), or a Section 504 Education Plan (“504 Plan”) pursuant to

20

Section 504 of the Rehabilitation Act of 1973. These plans are required by law to be

21

created through an interactive process between educators, parents and their children, and

22

are supposed to specify a child’s individual needs, including whether and how a student

23

will participate on statewide assessments such as the CAHSEE.

24 50. Some students with disabilities do not have either an IEP or a Section 504 Plan

25 51. Over half of California public students with disabilities have been diagnosed with a

26

learning disability. People with learning disabilities span the intelligence spectrum and

27

many children with learning disabilities are of very high intelligence. Learning

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

15

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page16 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

disabilities are the result of permanent neurological dysfunction or information

2

processing disruptions that result in limited, unexpected, and usually intractable

3

impediments in the ability to learn one or more basic skills taught through traditional

4

formal education. Many people with learning disabilities work far harder than others in

5

order to compensate for their disabilities.

6 52. There are several types of learning disabilities. Dyslexia, a particular learning disability,

7

results from a neurological difference in processing phonemes, the basic unit of language,

8

and can be seen in brain scans as early as infancy. Dyslexia impairs the ability to process

9

language. A dyslexic individual may have difficulty reading, developing age/grade

10

appropriate vocabulary, handwriting, spelling, taking notes, and memorizing rote and

11

sequential facts, steps and information. Dysgraphia, another specific learning disability,

12

is a neurocognitive, neuromotor language-based processing disorder often, but not always

13

associated with dyslexia. Dysgraphia impairs an individual’s ability to write legibly in a

14

defined space over a normal timeframe. Dyscalculia is a mathematical learning disability

15

in which a person has significant difficulty grasping math concepts and acquiring and

16

retaining math computation and problem solving skills.

17 53. 18

Children with numerous other disabilities attend California’s public schools. These children include, inter alia, those with cerebral palsy, autism, mental retardation, speech

19

or language impairments, visual impairments, orthopedic impairments, and those who are

20

deaf and hard of hearing.

21

Named Plaintiffs’ Experiences

22 54. Named Plaintiff Juleus Chapman has dyslexia, a specific type of learning disability.

23

Juleus lives in Fremont, California, and he attends public schools in that city. He is in the

24

class of 2005. Juleus will be required to take and pass the CAHSEE to obtain a diploma.

25 55. Juleus has an Individualized Education Program that specifies he is allowed to use certain

26

testing accommodations due to his dyslexia. These testing accommodations include,

27

inter alia, extended time, use of a laptop computer, use of a calculator, and audio

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

16

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page17 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

presentation of test items. Juleus requires these accommodations to minimize the effect

2

of his dyslexia and to demonstrate his skills and abilities. Depending on the

3

accommodations which are or are not made available to him, Juleus may require an

4

alternate method of assessment in order to fairly demonstrate his abilities.

5 56. 6

Juleus was told by a Fremont school official that when he takes the CAHSEE he will not be allowed to use any accommodations on the tests. Juleus and his parents have not been

7

provided any information about how to request reasonable accommodations or an

8

alternate assessment for the CAHSEE or how to appeal a denial of a request.

9 57. Juleus’ IEP has not been modified to align with the curriculum tested on the CAHSEE.

10 58. Juleus requires an individual assessment by his IEP team to determine whether he should

11

participate in the CAHSEE with accommodations, or whether an alternate assessment

12

would be more appropriate.

13 59. Subsequent to the filing of the original complaint in this action, Juleus’ IEP has been

14

updated to specify that he might require an alternate assessment to the CAHSEE which

15

would allow him to pursue a diploma.

16 60. Named Plaintiff Ryan Smiley has dyslexia and dysgraphia. Ryan lives in Montrose,

17

California, and he attends public schools in La Crescenta, California. Ryan is in the class

18

of 2004. He will be required to take and pass the CAHSEE to obtain a diploma. He took

19

the CAHSEE on a voluntary basis in the spring of 2001, but he did not pass either

20

section.

21 61. Subsequent to the filing of the original complaint in this action, Ryan retook the exam in

22

the spring of 2002. Ryan learned that he had obtained a passing score on the English

23

Language Arts portion of the CAHSEE, but that his results were invalidated by the State

24

because he used a spell checker. Ryan did not pass the mathematics portion of the

25

CAHSEE.

26 62. In July, 2002, Ryan took the mathematics portion of the CAHSEE for a third time.

27

Despite the fact that his IEP permits him to use a calculator as a form of reasonable

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

17

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page18 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

accommodation, he chose not to do so because of his concern that his score would be

2

invalidated. Ryan managed to pass the mathematics portion by a few points. He is

3

concerned that his low scores will be viewed negatively by colleges and universities in

4

the admissions process.

5 63. Ryan has an Individualized Education Program that specifies he is allowed to use certain

6

testing accommodations due to his learning disabilities. These testing accommodations

7

include, inter alia, extended time, use of a specialized laptop computer called an

8

“Alphasmart,” use of a calculator, and audio presentation of test items. Ryan requires

9

these accommodations to minimize the effect of his learning disabilities and to

10

demonstrate his skills and abilities.

11 64. During Ryan’s IEP meeting in the fall of 2000, Ryan’s mother, Krista Smiley, was told

12

that Ryan would be allowed to use full accommodations on all tests. Mrs. Smiley

13

understood this to mean that Ryan would be allowed to use the accommodations he

14

needed on the CAHSEE.

15 65. Prior to the administration of the CAHSEE in the spring of 2001, Ryan and his parents

16

were not provided any information about how to request an accommodation for the exam

17

or how to appeal a denial of an accommodation request. The only information Ryan

18

received about the CAHSEE was that he was told, along with the other learning disabled

19

students in his special education class, that he and the other learning disabled students

20

would take the exam in a separate room and be allowed to have extra time on the test.

21 66. When Ryan took the CAHSEE in March 2001, he was not allowed to use all of the

22

testing accommodations specified in his IEP. Although he normally has exams read to

23

him, a reader was not provided for the English portion of the Exit Exam. In addition,

24

Ryan was allowed to use his Alphasmart word processor on only one of the two essays.

25

When Ryan took the CAHSEE in March 2002, he was denied the use of a calculator.

26

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

18

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page19 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 67. Ryan had not studied much of the content that was tested on the math portion of the

2

CAHSEE. Ryan is currently enrolled in pre-Algebra, and has not studied Algebra or

3

Geometry, both of which are tested on the CAHSEE.

4 68. Ryan’s IEP has not been modified to align with the curriculum tested on the CAHSEE.

5 69. Ryan should have been provided with an individual assessment by his IEP team to

6

determine whether he should participate in the CAHSEE with accommodations, or

7

whether an alternate assessment would be more appropriate.

8 70. Named Plaintiff Jennifer Lyons has dyslexia. Jennifer lives in Magalia, California, and

9

attends public schools in Paradise, California. She is in the class of 2005. She will be

10

required to take and pass the CAHSEE to obtain a diploma.

11 71. Jennifer has an Individualized Education Program that specifies she is allowed to use

12

certain testing accommodations due to her learning disability. These testing

13

accommodations include, inter alia, use of an electronic spell checker, use of a

14

calculator, use of a computer, scanner, and cassette recorder. Jennifer requires these

15

accommodations to minimize the effect of her dyslexia. These accommodations are

16

probably not sufficient, however, to allow her to fully demonstrate her knowledge, skills

17

and abilities on the CAHSEE, and Jennifer most likely requires an alternate assessment.

18 72. Jennifer and her parents have not been provided any information about how to request

19

reasonable accommodations or an alternate assessment for the CAHSEE, or how to

20

appeal a denial of a request.

21 73. Jennifer’s IEP has not been modified to align with the curriculum tested on the CAHSEE.

22 74. Jennifer requires an individual assessment by her IEP team to determine whether she

23

should participate in the CAHSEE with accommodations, or whether an alternate

24

assessment would be more appropriate.

25 75. Named Plaintiff Ashley Harley has dyslexia. Ashley lives and attends public school in

26

Alameda, California. She is in the class of 2004, and will be required to take and pass the

27

CAHSEE to obtain a diploma.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

19

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page20 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 76. Ashley has an Individualized Education Program that specifies she is allowed to use

2

certain testing accommodations due to her learning disability. These testing

3

accommodations include, inter alia, use of a calculator, a cassette recorder for dictation,

4

and extra time. Ashley requires these accommodations to minimize the effect of her

5

dyslexia. These accommodations are probably not sufficient, however, to allow her to

6

fully demonstrate her knowledge, skills and abilities on the CAHSEE, and Ashley most

7

likely requires an alternate assessment. Ashley’s IEP states that she can best demonstrate

8

her abilities on oral as opposed to written exams. When tested in this alternate manner,

9

as she has been for the majority of her educational career, Ashley excels. Without the

10

opportunity to be assessed in an alternate manner, Ashley is uncertain of whether she will

11

have the opportunity to demonstrate her real skills on the Exit Exam.

12 77. Ashley and her parents have been provided confusing and conflicting information about

13

the accommodations policy for the Exit Exam. In Ashley’s IEP meetings, Ashley’s

14

mother was told that the effect of using calculators was unknown because the State

15

designated calculators as impermissible in some notices and not in others.

16 78. Ashley’s IEP has not been modified to align with the curriculum tested on the CAHSEE.

17

For example, Ashley has not taken Algebra II or Geometry, both of which are tested on

18

the Exit Exam.

19 79. Ashley requires an individual assessment by her IEP team to determine whether she

20

should participate in the CAHSEE with accommodations, or whether an alternate

21

assessment would be more appropriate.

22 80. Named Plaintiff Philip Cacho has cerebral palsy as the result of lack of oxygen at birth.

23

Philip’s cerebral palsy is severe, resulting in Spastic Quadriparesis, which means that he

24

is unable to move his limbs in functional ways. Philip uses a wheelchair and requires the

25

assistance of others for physical needs. Philip also does not have verbal speech,

26

necessitating the use of augmentative and alternative means of communication. The

27

injury to Philip’s brain also resulted in cortical visual impairment, which in Philip’s case

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

20

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page21 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

renders him unable to track across a horizontal line of type and results in a loss of visual

2

field and poor visual acuity. Philip’s cognitive abilities are unaffected by his disabilities,

3

and his ability to learn, understand, and reason are intact and he is considered bright.

4 81. Philip lives in Berkeley, California, and until October 2002 he attended Berkeley High

5

School. Philip was scheduled to graduate in 2004. In October 2002, Philip’s parents

6

made the excruciating decision to remove him from Berkeley High School’s academic

7

program and abandon Philip’s goal of achieving a high school diploma. Philip’s parents

8

made this decision after it became clear that the CAHSEE posed an insurmountable

9

obstacle for Philip because he cannot take the exam even with accommodations and

10

“modifications,” and because there is no alternate assessment available to the CAHSEE.

11

If the Exit Exam were not an impediment to Philip’s graduation with the Class of 2004,

12

he would still be enrolled as a diploma track student at Berkeley High School.

13 82. An alternate assessment is the only way that Philip can demonstrate his mastery of the

14

curriculum. Philip’s parents were initially told by his IEP team that Philip would not be

15

able to participate in the CAHSEE because he required an alternate assessment and there

16

was no alternate assessment available. Because Philip and his parents were determined

17

for Philip to achieve a high school diploma, they insisted on working with the IEP team

18

to determine a way that Philip could take the Exit Exam with accommodations and

19

“modifications.” Philip’s IEP states that Philip requires testing accommodations such as

20

an alternate setting, frequent breaks, and a one-to-one monitor who orally transmits

21

exams to Philip and who is trained to observe Philip’s answers through Philip’s

22

augmented communication system of physical responses. Philip’s parents and IEP team

23

spent an extraordinary amount of time and energy developing ways in which Philip could

24

provide responses to multiple choice questions and exploring ways for Philip to provide

25

essay responses. Administering the CAHSEE to Philip could take weeks, possibly

26

months because of the way in which the examiner must present the questions to Philip

27

and record his responses. Because of the nature of Philip’s disability, attempting to

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

21

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page22 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

complete the CAHSEE would literally require a suspension of Philip’s opportunity to

2

participate in his curricular program. Even then administration of portions of the exam,

3

such as the essay section, would likely be impossible because of the highly-economical

4

and protracted method of generating language that Philip, as a non-verbal individual,

5

must use. However, even with these accommodations and “modifications,” Philip is not

6

able to demonstrate his actual skills and abilities. Philip’s IEP states that he should be

7

provided with an alternate assessment in the form of a portfolio review of his work.

8 83. Philip’s IEP has not been aligned with the curriculum tested on the CAHSEE.

9 84. Philip continues to be enrolled at Berkeley High School in a non academic program of

10

home and community-based transition instruction in order to remain eligible for public

11

services. If it were not for the Exit Exam, Philip would be on track to graduate from

12

Berkeley High School in 2004. Philip has always wanted and planned to attend college

13

at the University of California at Berkeley. Now, because he has abandoned his hope of

14

receiving a high school diploma because of the Exit Exam, he will likely never be able to

15

pursue his plans for college.

16 85. Named Plaintiff Kyle Stofle has dyslexia and dysgraphia. Kyle lives in Pittsburg,

17

California, and attends public high school in that city. He is in the class of 2004 and will

18

be required to take and pass the CAHSEE to obtain a diploma.

19 86. Kyle has an Individualized Education Program that specifies he is allowed to use certain

20

testing accommodations due to his learning disability. These testing accommodations

21

include, inter alia, extended time, flexible setting, frequent breaks, an oral reader, and

22

either a way to respond orally or a word processor. Kyle requires these accommodations

23

to minimize the effect of his disabilities. These accommodations are probably not

24

sufficient, however, to allow him to fully demonstrate his knowledge, skills and abilities

25

on the CAHSEE, and Kyle may require an alternate assessment.

26

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

22

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page23 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 87. Kyle and his parents have been provided with confusing and inadequate information

2

about how the availability of reasonable accommodations for the CAHSEE as well as the

3

waiver process.

4 88. Kyle’s IEP has not been modified to align with the curriculum tested on the CAHSEE.

5 89. Kyle requires an individual assessment by his IEP team to determine whether she should

6

participate in the CAHSEE with accommodations, or whether an alternate assessment

7

would be more appropriate.

8 90. If Kyle has not passed the CAHSEE by the end of his junior year (June 2003), he will

9

move to Nevada to live with his grandmother in order to finish high school and receive a

10

diploma.

11 91. Named Plaintiff Justin Pierce has dyslexia and an auditory processing delay. Justin is in

12

the Class of 2004 and is required to pass the Exit Exam in order to graduate from public

13

high school in California. Through his sophomore year, Justin lived in Napa, California

14

with his mother and attended Vintage High School in Napa. However, due to fears that

15

Justin would not pass the Exit Exam and therefore would not graduate from high school,

16

Justin moved to Texas to live with relatives, and currently lives and attends school in

17

Flower Mound, Texas. Justin would like to return to California for his senior year of

18

high school. However, if the Exit Exam remains a requirement for the Class of 2004 he

19

will complete his high school education in Texas.

20 92. Justin has an Individualized Education Program that specifies he is allowed to use certain

21

testing accommodations due to his learning disability. These testing accommodations

22

include, inter alia, breaking up the test administration, extended time, alternate testing

23

environment, the option to respond orally, a calculator, and a spell-checker. Justin

24

requires these accommodations to minimize the effect of his disabilities. These

25

accommodations are probably not sufficient, however, to allow him to fully demonstrate

26

her knowledge, skills and abilities on the CAHSEE, and Justin may require an alternate

27

assessment.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

23

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page24 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 93. As a result of the extreme stress, anxiety, and sense of failure that Justin felt as a result of

2

the Exit Exam, Justin experienced panic attacks and insomnia as a result of his stress

3

about the possibility of not graduating from high school. Relatedly, Justin was diagnosed

4

with depression in the Spring of 2002.

5 94. Justin and his mother have been provided with confusing, conflicting and inadequate

6

information about the availability of reasonable accommodations for the CAHSEE, or the

7

waiver process.

8 95. Justin’s IEP was not been modified to align with the curriculum tested on the CAHSEE.

9

For example, Justin has not been taught geometry or Algebra II, both of which are tested

10

on the Exit Exam.

11 96. Justin requires an individual assessment by his IEP team to determine whether he should

12

participate in the CAHSEE with accommodations, or whether an alternate assessment

13

would be more appropriate.

14 97. Named Plaintiff Ashton Thadani has multiple disabilities, including attention deficit

15

disorder, sensory integration dysfunction, receptive/expressive language disorder,

16

auditory processing issues, and post traumatic stress disorder. Ashton lives and attends

17

public school in Saratoga, California. He is in the class of 2004 and will be required to

18

take and pass the CAHSEE to obtain a diploma.

19 98. Ashton has an Individualized Education Program that specifies he should not be assessed

20

through standardized testing and that he should receive certain testing accommodations

21

such as a one-to-one aide who helps him process information and express his knowledge,

22

and use of a word processor and calculator. Because of his complex disabilities, Ashton

23

needs these accommodations in order to fully demonstrate his knowledge and abilities on

24

tests such as the Exit Exam.

25 99. Ashton took the English Language Arts portion of the CAHSEE in March 2002. Ashton

26

was not provided with any of his accommodations set forth in his IEP on the March 2002

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

24

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page25 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

test, and he failed that test. Ashton and his mother have been provided with confusing

2

and incomplete information about the availability of accommodations on the CAHSEE

3 100. Ashton’s IEP has not been modified to align with the curriculum tested on the CAHSEE.

4

For example, Ashton is currently enrolled in Algebra, and has not been exposed to many

5

of the mathematical concepts, such as probability and geometry, that are tested on the

6

Exit Exam.

7 101. Ashton requires an individual assessment by his IEP team to determine whether he

8

should participate in the CAHSEE with accommodations, or whether an alternate

9

assessment would be more appropriate, particularly since his IEP specifies that

10

standardized assessments are not appropriate due to Ashton’s disabilities.

11 102. Ashton and his mother fear that Ashton will not be able to pass the CAHSEE due to the

12

failure to accommodate his disabilities and the failure to teach Ashton material tested on

13

the exam. Ashton’s mother is currently making plans to send Ashton to Massachusetts so

14

that Ashton can complete high school there and receive a high school diploma.

15

Relocation to Massachusetts will be extremely disruptive and difficult for Ashton and his

16

mother. Because Ashton and his mother, who is a single parent, do not want to be

17

separated from each other, Ashton’s mother will most likely be forced to quit her job and

18

find another position in Massachusetts.

19

History of the CAHSEE

20 103. In 1999 the California legislature passed legislation (SB 2, codified at Cal. Ed. Code

21

§ 60850 et seq.) directing the Superintendent of Public Instruction to develop a high

22

school exit examination in language arts and mathematics.

23 104. Pursuant to that legislation, Defendants hired a contractor to develop and field test the

24

CAHSEE over a period of several months in 2000.

25 105. As required by law, Defendants hired an independent consultant to evaluate the

26

CAHSEE.

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

25

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page26 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 106. The independent evaluator concluded that the CAHSEE should be delayed by at least one

2

to two years because key components of the testing system were not properly developed.

3 107. Specifically, the independent evaluator found that students with disabilities had not been

4

adequately prepared for the tests. The independent consultant found that students with

5

disabilities had not had their IEPs or Section 504 Plans modified to align with the

6

curriculum tested on the CAHSEE, and that therefore these students were tested on

7

material that they had never been taught.

8 108. The independent evaluator also found that Defendants had gathered insufficient

9

information regarding the use of accommodations on the CAHSEE, and recommended

10

that Defendants gather, review and discuss more information on the appropriateness and

11

effectiveness of testing accommodations for students with disabilities, as well as the

12

differential impact of the Exit Exam on students with disabilities.

13 109. The independent evaluator also noted that a greater percentage of students with

14

disabilities are likely to fail the CAHSEE than the student population as a whole.

15 110. The independent evaluator’s reports are publicly available on the Department of

16

Education’s website at www.cde.ca.gov.

17 111. In the face of compelling evidence that the CAHSEE is invalid and discriminatory, and

18

despite the recommendation by their own expert independent consultant to delay the

19

implementation of the CAHSEE, Defendants nevertheless decided to proceed with

20

implementation of the CAHSEE and have already administered the exam in the Spring of

21

2001, and the Spring, Summer and Fall of 2002, to students in the Class of 2004. These

22

students will be required to pass the CAHSEE to graduate from high school.

23 112. In 2001, the California legislature passed AB 1609, codified as amendments to the

24

portions of the California Education Code concerning the CAHSEE. This legislation

25

calls for a review of the CAHSEE after it has already been administered multiple times to

26

public school children, including the plaintiff class. This review will study whether the

27

test development process and implementation were proper.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

26

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page27 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 113. Based on this review, in 2003, Defendant BOARD OF EDUCATION is permitted, but

2

not required to suspend the requirement that students pass the CAHSEE in order to obtain

3

a high school diploma.

4 114. Students, including the plaintiff class, will be obligated to take the CAHSEE multiple

5

times prior to a determination by the BOARD of EDUCATION regarding the diploma

6

requirement, without knowing whether they are at risk of failing to obtain a diploma

7

unless they pass the CAHSEE.

8 115. Based on voluntary participation of students in the class of 2004 who chose to take the

9

CAHSEE in the spring of 2001, the independent evaluator found that over 90% of

10

students with disabilities who chose to take the Exist Exam failed to pass. Of all students

11

who took the Exit Exam in the spring of 2001 (including the students with disabilities),

12

approximately 55% did not pass.

13 116. Subsequent to the filing of the original complaint in this action, results have been

14

released for the Spring, 2002 administration of the CAHSEE showing that approximately

15

90% of students with disabilities who took the Exit Exam did not pass. Of all students

16

who took the exam in the Spring of 2002, including the students with disabilities,

17

approximately 48% did not pass.

18 117. Even if students, including the plaintiff class, are not ultimately required to pass the

19

CAHSEE to obtain a high school diploma, the students in the plaintiff class will suffer

20

ongoing harm and repeatedly experience failure if they are required to take the CAHSEE

21

without appropriate reasonable accommodations or an alternate assessment. Such

22

experiences are linked with multiple harms, including dropping out of school, leaving

23

California public schools to enter private schools, moving to other states in order to avoid

24

the Exit Exam, and psychological injury such as depression, panic attacks, insomnia, and

25

severe anxiety.

26 118. The defects in the CAHSEE are due, at least in part, to the fact that Defendants hastily

27

developed and implemented the exam.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

27

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page28 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 119. The entire test was developed and field tested over a period of just several months.

2 120. It is impossible to adequately design a high school graduation test in such a limited

3

amount of time. As noted by the independent evaluator hired by Defendants to evaluate

4

the CAHSEE, tests like the CAHSEE are generally developed and analyzed over a period

5

of years before they are implemented.

6 121. With regard to students with disabilities, this lead time is especially necessary in order to

7

conduct the essential groundwork that must be done to ensure that, at a minimum, (a) the

8

test is psychometrically valid and reliable for disabled students, (b) disabled students

9

have been taught the material tested on the exam, (c) alternate assessments have been

10

developed for students with disabilities, (d) students, parents, teachers and administrators

11

are aware of the requirements of the test and the participation options for students with

12

disabilities, (e) an accommodations policy has been developed and disseminated to

13

students, parents, teachers, administrators, and IEP and 504 Plan team members, (f) IEP

14

and 504 forms have been modified to include a checklist of options for participation in

15

the test, and (g) an appeals process has been set up by which students can appeal denials

16

of accommodations requests and other aspects of the assessment system.

17 122. None of these essential steps were taken with the CAHSEE, and Defendants are fully

18

aware that the failure to take such steps has resulted in an exam that discriminates against

19

students with disabilities. The CAHSEE discriminates against students with disabilities

20

in at least the following multiple ways:

21

Alternate Assessment

22 123. Defendants have failed to develop an “alternate assessment” to the CAHSEE for students

23

who cannot adequately demonstrate their mastery of state content standards on the exam,

24

even with appropriate reasonable accommodations.

25 124. Alternate assessments are specifically required by multiple federal statutes, including the

26

Individuals with Disabilities Education Act (“IDEA”).

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

28

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page29 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 125. IDEA was amended in 1997 to require all states to develop and implement “alternate

2

assessments” for any statewide assessment administered by the State. Under the 1997

3

amendments, these alternate assessments were to be in place by July of 2000. See 20

4

U.S.C. § 1412(a)(17)(A); 34 C.F.R. § 300.138.

5 126. The legislation which required the creation of the CAHSEE specifically requires that the

6

test must conform to the requirements of IDEA, among other civil rights laws.

7 127. Defendants have been and remain fully aware of their legal obligation to develop

8

alternate assessments to the CAHSEE. However, Defendants have ignored this legal

9

obligation and refused to develop any alternate assessment to the CAHSEE. Instead,

10

Defendants require all students to take the CAHSEE, and do not allow any students to

11

opt out or be exempted from the Exit Exam or to demonstrate their mastery of state

12

content standards by any other means.

13 128. The requirement to provide an alternate assessment is essential to allowing students with

14

disabilities an equal opportunity with respect to statewide assessments such as the

15

CAHSEE. Alternate assessments are required for any student with a disability who is

16

unable to participate in the standard assessment by virtue of his or her disability.

17 129. By failing and refusing to develop and provide an alternate assessment to the CAHSEE,

18

Defendants are intentionally discriminating against thousands of students with disabilities

19

for whom an alternate assessment, rather than the standard assessment is appropriate.

20

These students will not be properly assessed by the CAHSEE, and will not be able to

21

accurately demonstrate their knowledge, skills and abilities.

22

Reasonable Accommodation

23 130. Plaintiff students require and are guaranteed under federal law reasonable

24

accommodations on the CAHSEE such that they are tested on their mastery of state

25

content standards rather than on their disabilities.

26 131. Without such accommodations, Plaintiff students are subjected to discrimination because

27

they are tested on their disabilities, not their abilities. Without the reasonable

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

29

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page30 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

accommodations they require, Plaintiff students will be unable to pass the CAHSEE and

2

therefore will be unable to graduate from high school with a diploma.

3 132. Defendants have created chaos and confusion by failing to formulate clear policies and

4

procedures regarding the provision of reasonable accommodations on the CAHSEE.

5 133. At the time of the administration of the CAHSEE in Spring of 2001, DEFENDANTS had

6

not issued final regulations regarding the policies and procedures for obtaining

7

reasonable accommodations on the Exam.

8 134. Instead, Plaintiff students, their parents, and school administrators were either provided

9

with no information or guidance about the use of accommodations on the March 2001

10

Exam, or were provided with conflicting, misleading, and confusing information about

11

accommodations.

12 135. Currently, DEFENDANTS still have not issued final regulations regarding the policies

13

and procedures for obtaining reasonable accommodations on the Exam.

14 136. Defendants have issued a variety of regulations regarding accommodations for the High

15

School Exit Exam since the original legislation was enacted.

16 137. Only days in advance of the administration of the CAHSEE in the spring of 2001,

17

interim regulations regarding accommodations were approved by the State Board of

18

Education. Because the regulations were issued so close to the administration of the

19

exam, teachers, test administrators, parents and students did not have sufficient time to

20

request (or appeal denials of) reasonable accommodations.

21 138. Subsequent to the administration of the CAHSEE, in the Spring of 2001, the belated and

22

limited accommodations regulations were withdrawn in June.

23 139. From June until October, 2001, there were no regulations whatsoever regarding

24

accommodations on the CAHSEE.

25 140. On or around November 8, 2001 new regulations were adopted by the Board of

26

Education. Even these regulations are not yet final; further administrative action is still

27

necessary (and anticipated) for them to be finalized.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

30

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page31 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 141. Notwithstanding the startlingly high failure rate among students with disabilities, these

2

new regulations represent a reversal from the previously issued regulations in that they

3

allow fewer accommodations for disabled students and also indicate that

4

accommodations not listed in a students’ IEP or 504 plan may not be used on the

5

CAHSEE.

6 142. The regulations issued before the Spring, 2002 administration of the CAHSEE for the

7

first time specifically prohibited the use of accommodations such as oral presentation of

8

exam materials on the English portion of the CAHSEE or use of a calculator on the

9

mathematics portion of the exam.

10 143. After the March, 2002 administration of the CAHSEE, Defendants issued additional

11

“guidance” to school districts, informing them for the first time ever that additional

12

accommodations, including use of spell checkers and use of electronic or mechanical

13

transcription devices were also prohibited “modifications” which would invalidate a

14

student’s test score. This policy, which directly contradicts the regulations with respect

15

to transcription devices, was applied retroactively to the March, 2002 test results.

16 144. The regulations issued prior to the Spring, 2002 administration of the CAHSEE further

17

provide that school districts (not individual students) may request accommodations not

18

listed in the regulations at least nine weeks prior to the exam (i.e. by December, 2001 for

19

the March, 2002 administration). Neither IEP teams nor school districts had sufficient

20

time to determine which accommodations each student should receive in advance of the

21

administration of the CAHSEE in the Spring of 2002.

22 145. Separate from the regulations, Defendants in December 2001 issued a “waiver” policy for

23

students with disabilities. Under the “waiver” process, a student who uses a prohibited

24

“modification” and receives a passing score may receive a waiver of the CAHSEE

25

requirement. This confusing and discriminatory policy was not made final until the

26

summer of 2002. Since the filing of the original complaint, the waiver policy has been

27

further changed by legislation passed in the fall of 2002. This most recent iteration of the

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

31

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page32 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

waiver policy, which is not effective until January 1, 2003, requires parents to initiate the

2

waiver process by requesting school principals to submit waiver requests to the school

3

districts. This process is contrary to previous versions of the waiver policy under which

4

school districts submitted waiver requests to the State.

5 146. The new waiver policy suffers from numerous defects. These defects include: (1)

6

granting a waiver is entirely discretionary with each school district, (2) there are no

7

standards to guide districts in reviewing waiver requests, (3) there are no standards to

8

guide principals with respect to certifying whether a student has met certain conditions

9

set forth in the new waiver law, Cal. Educ. Code § 60851(c)(2), (4) there is no process by

10

which a parent can ensure that a principal in fact submits a waiver request to the school

11

district, (5) if a district denies a waiver request, there is no process for appealing that

12

decision, and (6) to even qualify for a waiver, a principal must certify that a student’s IEP

13

or 504 plan specifies that accommodations and modifications must be provided on the

14

CAHSEE specifically as opposed to on classroom work or testing generally.

15 147. Under the new convoluted and lengthy waiver process: (a) The student would have to

16

take the exam with “prohibited” accommodations and receive a passing score; and (b)

17

Notwithstanding the fact that the student would already have achieved a passing score on

18

the CAHSEE, the parent would have to seek, and the school district would have to grant,

19

a waiver “excusing” the student from the CAHSEE requirement. In other words, the

20

student would be required to pass the test in order to qualify to be excused from the test

21

(and the work done by the student in obtaining a passing score would be dismissed as

22

immaterial, and never be acknowledged).

23 148. The waiver scheme effectively transforms a student’s right to appropriate

24

accommodations into a theoretical possibility, at an indeterminate future time, which

25

could only be obtained, if at all, by pursuing a complicated, uncertain, and humiliating

26

process.

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

32

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page33 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 149. Defendants’ failure to approve regulations and distribute information in a timely and

2

appropriate manner has caused ongoing confusion among students, parents and

3

administrators.

4 150. The regulations are deficient and discriminatory because they do not allow for students

5

with disabilities to use certain accommodations on the CAHSEE which they routinely use

6

in the classroom and on other exams.

7 151. The regulations are also discriminatory in that they do not allow students with disabilities

8

to use certain accommodations they may need for the CAHSEE, but which are not listed

9

in their IEP or 504 Plan.

10 152. Certain students with disabilities may require accommodations on the CAHSEE that they

11

have not previously required for classroom assessments because of the different nature of

12

the CAHSEE.

13 153. The regulations are also discriminatory in that they do not allow a disabled student who

14

does not have an IEP or 504 Plan to use accommodations on the Exit Exam.

15 154. While the majority of students eligible for accommodations are those with an IEP or 504

16

Plan, there are students with disabilities who do not have either an IEP or 504 Plan who

17

will need accommodations on the Exit Exam. Other states, such as Massachusetts, have

18

recognized this and explicitly provide in their regulations that disabled students who do

19

not have IEPs or 504 Plans may request accommodations on statewide assessments.

20 155. Students, parents, and administrators do not know what process is available for seeking

21

necessary reasonable accommodations, or what standards are used in reviewing and

22

granting these accommodation requests.

23 156. The regulations do not provide for any appeals of denials of accommodation requests.

24 157. Thus, regardless of how arbitrary or incorrect a denial of an accommodation request is, a

25

student has no effective avenue to appeal that denial.

26 158. Defendants have failed to provide mechanisms, procedures, policies or personnel to

27

engage in the legally required interactive process with parents and students for the

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

33

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page34 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

fashioning of reasonable accommodations. Defendants have not provided adequate

2

training or information to schools and school districts regarding the individualized

3

assessment necessary to determine what accommodations a disabled student will require

4

on the CAHSEE. School districts have not provided adequate information to parents and

5

students.

6 159. Due to the lack of clear policies and procedures regarding the process for obtaining

7

accommodations on the CAHSEE, Plaintiffs and their parents have received and continue

8

to receive conflicting, confusing and misleading information from Defendants and from

9

their school districts. As a result, parents of Plaintiff students (a) have been unable to

10

make informed decisions about how their child should approach or take the tests,

11

(b) have been misled about the procedures and consequences, (c) have been forced to

12

make decisions which may be unnecessarily damaging to their children’s future and/or

13

(d) have been discouraged from requesting the reasonable accommodations and alternate

14

assessments to which they are entitled as a matter of law.

15

Failure to Provide Curriculum Alignment

16 160. Due to the premature implementation of the CAHSEE, students with disabilities have not

17

been given adequate time and notice to prepare for these new testing requirements.

18

Without such time and notice, the CAHSEE will unfairly test them on material that they

19

have not had the opportunity to learn.

20 161. Throughout their educations, Plaintiff children have been provided with individualized,

21

specific curricula in accordance with their IEPs or 504 Plans. In many cases, these

22

individualized plans deviate from the general curriculum.

23 162. These IEPs and 504 Plans have not been modified to be aligned with the subject matter

24

tested on the CAHSEE.

25 163. As noted by the independent evaluator hired by Defendants to review the CAHSEE, the

26

process of modifying IEPs and Section 504 Plans to align with the curriculum tested on

27

the exam will be lengthy and may require a lead time of several years.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

34

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page35 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 164. Despite the fact that Defendants have already administered the CAHSEE, Defendants

2

have not taken any steps whatsoever to ensure that Plaintiff students’ IEPs and Section

3

504 Plans are modified to align with the Exam.

4 165. In addition, Defendants have not created any materials or programs for teaching children

5

with disabilities what they need to know to pass the CAHSEE.

6 166. Defendants have instituted no steps to ensure appropriate remediation for disabled

7

students who do not pass the CAHSEE on their first attempt.

8 167. Without immediate relief from the Court, Plaintiffs and other children who cannot pass

9

the CAHSEE because it tests them on materials that they never had the opportunity to

10

learn will be irreparably harmed in that they will be denied numerous academic,

11

employment and professional opportunities, may not graduate from high school, and will

12

experience severe damage to their self-esteem and emotional well-being.

13

Failure to Conform to Psychometric Standards, Including Validity

14 168. The CAHSEE does not conform to relevant nationally recognized professional and

15

technical standards for standardized tests. Such psychometric standards include, but are

16

not limited to, the following positions: (a) high stakes assessments must be validated for

17

each specific use to which they are put; (b) cut scores (i.e. the place where the line is

18

drawn between passing and failing) must be set based on appropriate, documented

19

analysis; (c) tests that are designed to “lead” a curriculum should not have high stakes

20

consequences for individuals; and (d) high stakes consequences for individual students

21

should not be based on a single test.

22

FIRST CLAIM

(Violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.)

23

(ALL DEFENDANTS)

24 169. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-137 inclusive.

25 170. Defendants’ acts and omissions alleged herein are in violation of the Americans with

26

Disabilities Act, 42 U.S.C. § 12101, et seq., (“ADA”) and the regulations promulgated

27

thereunder, 28 C.F.R. Part 35, et seq.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

35

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page36 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 171. Plaintiffs are qualified individuals with disabilities within the meaning of the ADA. 42

2

U.S.C. § 12131(2).

3 172. DEFENDANTS are public entities within the meaning of Title II of the ADA and the

4

regulations promulgated thereunder. 42 U.S.C. § 12131(1)(B).

5 173. Defendants have violated the ADA by failing to evaluate their policies and practices with

6

regard to the CAHSEE to ensure that these policies and procedures do not exclude or

7

limit the participation of individuals with disabilities in their programs and activities. 28

8

C.F.R. § 35.105.

9 174. Defendants have violated the ADA by failing and refusing to develop and provide

10

alternate assessments in place of the CAHSEE to those Plaintiff children whose disability

11

is such that they require an alternate assessment to demonstrate their mastery of content

12

standards. 28 C.F.R. § 35.130.

13 175. Defendants have violated the ADA with regard to the CAHSEE by excluding Plaintiff

14

children from participation in and denying them the benefits of the services, programs or

15

activities of a public entity solely on the basis of disability. Defendants have further

16

violated the ADA by otherwise subjecting Plaintiff children to discrimination based upon

17

disability. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).

18 176. Defendants have violated the ADA with regard to the CAHSEE by denying Plaintiff

19

children the opportunity to participate in or benefit from aids, benefits and services

20

provided by the public entities, and by providing Plaintiff children with the opportunity

21

to participate in or benefit from aids, benefits or services that are not equal to those

22

afforded non-disabled children who attend California’s public schools. 28 C.F.R. §

23

35.130(b)(1)(i)-(ii).

24 177. Defendants have violated the ADA with regard to the CAHSEE by providing Plaintiff

25

children with benefits that are different and/or not as effective in affording equal

26

opportunity to obtain the same results, to gain the same benefits, or to reach the same

27

levels of achievement as that provided to others. 28 C.F.R. § 35.130(b)(1)(iii)-(iv).

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

36

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page37 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 178. Defendants have violated the ADA with regard to the CAHSEE by utilizing criteria or

2

methods of administration that have the effect of subjecting Plaintiff children to

3

discrimination on the basis of disability or that have the purpose or effect of defeating or

4

substantially impairing accomplishment of the objectives of the public entity’s program

5

with respect to individuals with disabilities. 28 C.F.R. § 35.130(b)(3).

6 179. Defendants have violated the ADA by administering a certification program in a manner

7

that subjects Plaintiff children to discrimination on the basis of disability. 28 C.F.R.

8

§ 35.130(b)(6).

9 180. Defendants have violated the ADA by failing to make reasonable modifications in

10

policies, practices or procedures with regard to the CAHSEE when the modifications are

11

necessary to avoid discrimination on the basis of disability. 28 C.F.R. § 35.130(7).

12 181. Defendants have violated the ADA with regard to the CAHSEE by imposing eligibility

13

requirements that screen out or tend to screen out an individual with a disability or any

14

class of individuals with disabilities from fully and equally enjoying any service,

15

program, or activity offered by Defendants. 28 C.F.R. § 130.(b)(8).

16 182. Defendants have engaged in deliberate indifference of plaintiffs’ rights under the ADA in

17

that Defendants have had notice that harm to plaintiffs’ rights was substantially likely,

18

and Defendants deliberately failed to act to prevent or remedy such harm.

19 183. WHEREFORE, Plaintiffs request relief as set forth below.

20

SECOND CLAIM

(Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.)

21

(ALL DEFENDANTS)

22 184. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-151 inclusive.

23 185. Plaintiffs are qualified individuals with disabilities within the meaning the Rehabilitation

24

Act of 1973 (“Rehab Act”).

25 186. DEFENDANTS are the recipients of federal funds sufficient to invoke the coverage of

26

the Rehab Act.

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

37

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page38 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 187. With regard to the CAHSEE, Defendants have intentionally discriminated against

2

Plaintiffs on the basis of their disabilities in violation of the Rehabilitation Act. 29

3

U.S.C. § 794.

4 188. With regard to the CAHSEE, solely by reason of their disabilities, Plaintiffs have been,

5

and continue to be, excluded from participation in, denied the benefits of, and subjected

6

to discrimination in their attempts to receive, full and equal access to the programs,

7

services and activities offered by Defendants in violation of the Rehabilitation Act. 29

8

U.S.C. § 794.

9 189. Defendants have engaged in deliberate indifference of plaintiffs’ rights under the

10

Rehabilitation Act in that Defendants have had notice that harm to plaintiffs’ rights was

11

substantially likely, and Defendants deliberately failed to act to prevent or remedy such

12

harm.

13 190. WHEREFORE, Plaintiffs request relief as set forth below.

14

THIRD CLAIM

(Violation of Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq)

15

(ALL DEFENDANTS)

16 191. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-157 inclusive.

17 192. Defendants have violated the Individuals with Disabilities Education Act (“IDEA”) by

18

failing to develop adequate regulations for the provision of appropriate accommodations

19

to students with disabilities on the CAHSEE. 20 U.S.C. § 1412(a)(17)(A).

20 193. Defendants have violated IDEA by failing to develop guidelines for the participation of

21

children with disabilities in alternate assessments for those disabled students who cannot

22

participate in the CAHSEE because of their disability. 20 U.S.C. § 1412(a)(17)(A)(i).

23 194. Defendants have violated IDEA by failing to ensure that the CAHSEE has been validated

24

for the specific purpose for which it is used. 20 U.S.C. § 1414(b)(3)(B)(i).

25 195. Defendants have violated IDEA by failing to ensure that the CAHSEE is administered in

26

accordance with any instructions provided by the producer of the exam. 20 U.S.C.

27

§ 1414(b)(3)(B)(iii)

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

38

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page39 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 196. Defendants have adopted a policy of discrimination based solely upon the disabilities of

2

school children, resulting in severe interference with and deprivation of Plaintiffs’

3

fundamental right to a free and appropriate public education which is secured to them by

4

the laws of the United States and specifically pursuant to IDEA. 20 U.S.C. § 1401(8).

5 197. No administrative remedy exists under IDEA to address these wholesale violations by

6

DEFENDANTS. Accordingly, Plaintiffs are not required to exhaust the administrative

7

procedures set forth in IDEA.

8 198. WHEREFORE, Plaintiffs request relief as set forth below.

9

FOURTH CLAIM [FORMERLY EIGHTH CLAIM]]

(Violation of Due Process Clause of United States Constitution)

10

(ALL DEFENDANTS)

11 199. Plaintiffs incorporate by reference herein the allegations in paragraphs 1-196, inclusive.

12 200. The actions of Defendants have violated and continue to violate the Fourteenth

13

Amendment to the United States Constitution in that Defendants have failed to provide

14

Plaintiff children and their parents with adequate notice of the testing requirements for

15

the CAHSEE. Due to the lack of adequate notice, parents and educators have not had

16

sufficient time to consider and determine whether and how the skills tested on the

17

statewide tests should be addressed in a child’s IEP or Section 504 Plan. California

18

schools have never taught or trained children with disabilities many of the skills and

19

content currently being tested on the CAHSEE.

20 201. Defendants have taken no steps to ensure that disabled students’ IEPs or Section 504

21

Plans are modified to align with the curriculum and skills tested on the Exit Exam.

22

Instead, Defendants have embarked upon a one-test-fits-all, test-first-provide-education-

23

later procedure without conducting adequate research into the far reaching negative

24

consequences for students with disabilities, which effectively makes it impossible for

25

these students to pass the required exams.

26 202. The actions of Defendants have violated and continue to violate the Fourteenth

27

Amendment to the United States Constitution because the CAHSEE, as currently

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

39

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page40 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

formulated and administered, lacks both instructional and curricular validity in that the

2

State cannot meet its burden of showing that the test covers materials that the plaintiff

3

students have had the opportunity to learn.

4 203. The actions of Defendants have violated and continue to violate the Fourteenth

5

Amendment to the United States Constitution because the CAHSEE, as currently

6

formulated and administered, is not consistent with relevant, nationally recognized

7

professional and technical standards.

8 204. Defendants have also violated and continue to violate the Fourteenth Amendment to the

9

United States Constitution by failing to create and implement clear, consistent and

10

understandable policies and procedures regarding provision of reasonable

11

accommodations on the CAHSEE.

12 205. Defendants have violated and continue to violate the Fourteenth Amendment to the

13

United States Constitution by failing to establish a procedure for parents and students to

14

challenge even the most arbitrary conduct with regard to the denials of reasonable

15

accommodations on the CAHSEE.

16 206. The actions of Defendants have violated and continue to violate the Fourteenth

17

Amendment to the United States Constitution in that the CAHSEE is fundamentally

18

unfair because many students with disabilities will not be accurately assessed by the

19

exam because they require an alternate assessment. Defendants have refused, in violation

20

of federal law, to develop alternate assessments to the CAHSEE.

21 207. WHEREFORE, Plaintiffs request relief as set forth below.

22
23 208.
24 209.
25
26
27

FIFTH CLAIM [FORMERLY TENTH CLAIM] (Declaratory Relief, 28 U.S.C. §§ 2201, 2202) ( All Defendants)
Plaintiffs incorporate by reference herein the allegations in paragraphs 1-212, inclusive.
Plaintiffs contend, and are informed and believe that Defendants deny that the they have
failed to comply with applicable laws prohibiting discrimination against persons with
disabilities and are in violation of the Americans with Disabilities Act, 42 U.S.C.

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

40

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page41 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1

§ 12101, et seq; the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq; the Individuals

2

with Disabilities Education Act 20 U.S.C. § 1400, et seq; and the U.S. Constitution.

3 210. A judicial declaration is necessary and appropriate at this time in order that each of the

4

parties may know his or her respective rights and duties and act accordingly.

5 211. WHEREFORE, Plaintiffs request relief as set forth below.

6

RELIEF REQUESTED

7

WHEREFORE, Plaintiffs pray for relief as follows:

8 1. A determination by this Court that this action may be maintained as a class action.

9 2. The issuance of a declaratory judgment that Defendants have violated the Americans

10

with Disabilities Act; the Rehabilitation Act of 1973; the Individuals with Disabilities

11

Education Act; and the Constitution of the United States.

12 3. The issuance of a preliminary injunction staying the administration of the CAHSEE in

13

Spring of 2002.

14 4. The issuance of a permanent injunction ordering Defendants to provide appropriate

15

protections for plaintiff students as required by law, including but not limited to:

16

(a) developing and providing alternate assessments to all disabled students who require

17

such an assessment to demonstrate their mastery of state content standards; (b) issuing

18

regulations and establishing procedures by which plaintiff students and their parents can

19

request appropriate reasonable accommodations on the CAHSEE, as well as appropriate

20

standards for consideration and granting of such requests; (c) establishing an appeals

21

process by which students can appeal denials of accommodations requests; (d) effectively

22

disseminating appropriate information about policies regarding the CAHSEE to all

23

parents and students; (e) taking all steps necessary to ensure that the CAHSEE is valid

24

and reliable for students with disabilities; (f) taking all steps necessary to ensure that use

25

of the CAHSEE is consistent with relevant, nationally recognized professional and

26

technical standards for such assessments.

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

41

Case3:01-cv-01780-CRB Document337 Filed02/18/03 Page42 of 42

DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612-2821 (510) 451-8644

1 5. Retention of jurisdiction by this Court until such time as the Court is satisfied that

2

Defendants’ unlawful policies, practices, acts, and omissions complained of herein have

3

been remedied and will not recur.

4 6. An award of reasonable attorneys’ fees and costs.

5 7. Damages in an amount to be determined by proof.

6 8. Such other and further relief as the Court deems just and proper.

7 DATE: December 20, 2002

8 Respectfully submitted,

9

By:

S/Sid Wolinsky

SID WOLINSKY

10

DISABILITY RIGHTS ADVOCATES

449 15th Street, Suite 303

11

Oakland, California 94612

Telephone: (510) 451-8644

12

Facsimile: (510) 451-8511

TTY:

(510) 451-8716

13

14

15
\\Server\cases\Chapman.CalDeptofEd\Federal_Pleadings\complaint\2-Am-complaint.wpd
16

17

18

19

20

21

22

23

24

25

26

27

28

Second Amended Complaint Juleus Chapman et al. v. California Department of Education et al.

42

 
 Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page1 of 11

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 JULEUS CHAPMAN, et al.,

No. C 01-01780 CRB

12

Plaintiffs,

MEMORANDUM AND ORDER

13 v.

14 CALIFORNIA DEPARTMENT OF

EDUCATION, et al.,

15

Defendants.

16

/

17 Now before the Court is defendants’ motion for summary judgment of all claims pending against

18 them in connection with the California High School Exit Exam (“CAHSEE”).

19 BACKGROUND

20

In 1999, the California Legislature passed S.B. 2, which requires that all California high school

21 students, starting with the class of 2004, pass the California High School Exit Exam (“CAHSEE”) in order

22 to receive a high school diploma. See Cal. Ed. Code § 60851(a). The CAHSEE contains a math section

23 and an English language arts section; a student must pass both sections to satisfy the exit exam requirement.

24

In March 2001, students in the high school class of 2004 were permitted to take the CAHSEE for

25 the first time. In March 2002, members of the class of 2004 who did not take and pass the test in 2001

26 were required to take the test again. Those who still have not passed the exam will be required to retake it

27 each time it is administered until they receive a passing score. Students who do not show progress toward

28 passing the exam must receive remediation from their school districts. See id. § 60851(f).

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page2 of 11

United States District Court For the Northern District of California

1

Under current California law, members of the class of 2004 who do not pass the CAHSEE will not

2 receive a high school diploma. See id. § 60851(a). However, as required by law, see id. § 60857, the

3 state has contracted with an independent third-party evaluator to review the structure and impact of the

4 exam and to make recommendations for improving it. The evaluator’s final report must be completed by

5 May 1, 2003. After reviewing the report, the State Board of Education will have until August 1, 2003 to

6 determine whether the CAHSEE requirement should remain in effect for the class of 2004 or whether

7 implementation of the requirement should be delayed. See id. § 60859.

8

The plaintiff class consists of learning disabled students who qualify for an Individualized Education

9 Program (“IEP”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), or a Section 504

10 Education Plan (“504 Plan”) pursuant to the Rehabilitation Act of 1973. These plans are created by a team

11 comprised of the student (where appropriate), parents, educators, and other professionals and are designed

12 to assess a child’s current performance, set goals, and identify specialized educational and other services

13 that a student may require.

14

Federal regulations require that an eligible student’s IEP specifically address “any individual

15 modifications in the administration of State or district-wide assessments of student achievement that are

16 needed in order for the child to participate in the assessment.” 34 C.F.R. § 300.347(a)(5)(i). When an

17 IEP team determines that a child cannot participate in a particular state-wide assessment even with

18 modifications, the IEP must include a statement as to why the standardized assessment is inappropriate and

19 how the child will be assessed instead. See id. § 300.347(a)(5)(ii).

20

California now allows learning disabled students to take the CAHSEE with any accommodations or

21 modifications described in their IEPs or Section 504 plans. Under California law, an accommodation is

22 “any variation in the assessment environment or process that does not fundamentally alter what the test

23 measures or affect the comparability of scores.” Cal. Educ. Code § 60850(f)(1). Students who take the

24 CAHSEE with accommodations and earn a passing score satisfy the CAHSEE requirement and can

25 receive a diploma. A modification is defined as “any variation in the assessment environment or process

26 that fundamentally alters what the test measures or affects the comparability of scores.” Id. § 60850(f)(5).

27 Students who take the CAHSEE with modifications and earn a passing score have not satisfied the

28 CAHSEE requirement. However, such students may apply to their school districts for a waiver of the

2

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page3 of 11

United States District Court For the Northern District of California

1 requirement. See id. § 60851(c). If a student’s waiver application is approved, the student can receive a

2 diploma.

3

Named plaintiffs Juleus Chapman, Jennifer Lyons, and Ryan Smiley are learning-disabled public

4 school students. Chapman and Lyons are members of the class of 2005 and have not yet taken the

5 CAHSEE. Smiley is a member of the class of 2004. He took the CAHSEE in March 2001, March 2002,

6 and July 2002. In July 2002, he passed the math section of the exam. In March 2002, he received a

7 passing score on the ELA section of the exam with the assistance of a modification (a spell-checker). He

8 has not applied for a waiver of the CAHSEE requirement. 1

9

Named plaintiff Learning Disabilities Association of California (“LDA-CA”) is a volunteer

10 organization serving individuals with learning disabilities. Plaintiffs do not claim that any of LDA-CA’s

11 members has taken the CAHSEE or been subject to the CAHSEE requirement.

12

Plaintiffs filed a first amended complaint in December 2001. In February 2002, this Court issued a

13 preliminary injunction ordering the defendants to permit students to take the CAHSEE with any

14 accommodations or modifications described in their IEPs or Section 504 plans; to develop an “alternate

15 assessment” to the CAHSEE; and not to deny any requests for waiver of the CAHSEE requirement

16 pending further court order. See Chapman v. CA Dep’t of Educ., 229 F. Supp. 2d 981 (N.D. Cal. 2002).

17 Defendants appealed this Court’s order to the Ninth Circuit, which on September 4, 2002 issued a ruling

18 affirming in part and reversing in part the preliminary injunction. Defendants petitioned the Ninth Circuit for

19 rehearing. On December 19, 2002, the Ninth Circuit issued an amended memorandum clarifying its earlier

20 ruling. On December 27, 2002, the Circuit issued a mandate, indicating that plaintiffs’ petition for rehearing

21 would not be granted.

22

The parties have briefed defendants’ motion for summary judgment in light of the Ninth Circuit’s

23 ruling. It now falls to this Court to determine which of plaintiffs’ claims survive the Ninth Circuit’s decision,

24 and which of those can be resolved by summary judgment.

25 ///

26 ///

27 1On February 18, 2003, plaintiffs filed a second amended complaint that adds five new plaintiffs, all
28 of them current or former students in the class of 2004 at California public schools. See 2d Am. Compl. ¶¶ 31-35.

3

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page4 of 11

United States District Court For the Northern District of California

1

DISCUSSION

2

Only claims that are ripe for adjudication may proceed to summary judgment. See Scott v.

3 Pasadena Unif. School Dist., 306 F.3d 646, 654 & n.9 (9th Cir. 2002) (noting that court’s jurisdiction is

4 circumscribed by ripeness considerations). To be ripe, a claim must raise issues that are “definite and

5 concrete, not hypothetical or abstract.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,

6 1138 (9th Cir. 2000). “A case is not ripe where the existence of the dispute itself hangs on future

7 contingencies that may or may not occur.” Porter v. Jones, 2003 WL 253236, at *5 (9th Cir. Feb. 6,

8 2003) (quoting Clinton v. Acequia, Inc., 94 F.3d 568, 572 (9th Cir. 1996)).

9

According to the Ninth Circuit, the bulk of plaintiffs’ claims in this case are not yet ripe.

10 Specifically, the Circuit has ruled that with the exception of plaintiffs’ claim regarding their ability to take the

11 CAHSEE with accommodations and modifications, “plaintiffs’ challenge to the administration of the

12 CAHSEE is not currently ripe for adjudication.” See Smiley v. Calif. Dep’t of Educ. , 2002 WL

13 31856343, at *1 (9th Cir. Dec. 19, 2002). Moreover, since defendants “need experience with

14 administration of CAHSEE to further develop and refine the test, to decide whether there should be a delay

15 in the date for imposing it as a requirement for a high school diploma, and for working out the waiver

16 process by which students with disabilities may obtain diplomas,” plaintiffs’ “accommodations claims are

17 not yet ripe” to the extent that they “allege potential future harms caused by the possible denial of a waiver

18 of CAHSEE requirements or of a diploma.” Id. Finally, the Ninth Circuit held that “[p]laintiffs’ claim

19 regarding alternative assessment is also insufficiently ripe for adjudication on a statewide basis at the present

20 time.” Id.

21

Since the state now permits learning disabled students to take the CAHSEE with all necessary

22 accommodations and modifications, it follows from the Ninth Circuit’s ruling that none ofplaintiffs’claims

23 regarding test “administration” are ripe at this time. Accordingly, the only claims that remain in play

24 following the Ninth Circuit’s ruling are those that do not pertain to test administration, the potential future

25 denial of a diploma, or the development of an alternate assessment.

26

Plaintiffs argue that the Ninth Circuit’s ripeness determinations were based on the state of the

27 record as it existed when the case went up to the Circuit, and that their claims have ripened in the

28 intervening months because they have been forced to take or consider such measures as enrolling in costly

4

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page5 of 11

United States District Court For the Northern District of California

1 private schools or moving to other states to evade the exit exam requirement. 2 While plaintiffs cannot

2 challenge “contingent future events that may not occur as anticipated, or indeed may not occur at all,” Texas

3 v. United States, 523 U.S. 296, 300 (1998), the ripeness doctrine “recognizes that there is a need to

4 decide a case when the prospect or fear of future events may have a real impact on the present affairs of

5 the parties and cause potential harm.” United States v. Jose, 71 F.3d 1484, 1486 (9th Cir. 1995), rev’d

6 on other grounds, 519 U.S. 54 (1996). The Ninth Circuit acknowledged as much by indicating that claims

7 stemming from the uncertainty created by the CAHSEE waiver process are presently ripe for adjudication.

8 See Smiley, 2002 WL 31856343, at *1. The sorts of harms identified by the plaintiffs in their second

9 amended complaint flow from this uncertainty and thus fall within the Circuit’s ripeness analysis. By the

10 same token, the fact that plaintiffs have suffered these harms does not alter the conclusion that plaintiffs’

11 other claims--i.e., those relating to test administration, diploma denial, and alternate assessment--are unripe

12 at this time.

13

With these parameters in mind, the Court will consider each of the claims asserted by plaintiffs in

14 their second amended complaint.

15

A. IDEA Claims

16

The Individuals with Disabilities Education Act (“IDEA”) requires, among other things, that all

17 students with disabilities be included in statewide assessment programs and that the state develop and

18 conduct alternate assessments for those children who cannot participate in state and district-wide

19 assessment programs. See 20 U.S.C. § 1412(a)(17)(A). Plaintiffs allege that the CAHSEE violates both

20 of these requirements. See 2d Am. Compl. ¶¶ 192-93.

21

Plaintiffs’ allegation that the state has violated the IDEA by failing to develop an alternate

22 assessment was held by the Ninth Circuit to be unripe. See Smiley, 2002 WL 31856343, at *1. Plaintiffs’

23 recent amendment of the complaint to add new plaintiffs who cannot access the test under any

24 circumstances does not cure the ripeness problem. So long as enforcement of the exit exam requirement

25

26

2Of the four new plaintiffs who complain of being forced to take such drastic measures, only one has

actually taken them. See 2d Am. Compl. ¶ 31 (“If Ashley has not passed the CAHSEE by the end of her

27 junior year (June 2003), her parents have to decided to . . . place her in a private school . . . .); id. ¶ 33 (“[I]f

he has not passed the CAHSEE by the end of his junior year (June 2003), he will move to Nevada . . . .”);id.

28 ¶ 35 (“Ashton’s mother is currently making plans to send Ashton to Massachusetts . . . .”). The one student

who has in fact moved away passed the ELA portion of the exam before doing so. See id. ¶ 34.

5

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page6 of 11

United States District Court For the Northern District of California

1 remains a mere contingency, the state need not provide an alternate assessment. Accordingly, this claim

2 will be dismissed without prejudice.

3

Plaintiffs’ claim concerning access to the CAHSEE is more complex. As plaintiffs acknowledge,

4 students with disabilities are now permitted to take the CAHSEE with all necessary accommodations and

5 modifications. While this is sufficient to satisfy the inclusion requirement as a literal matter, plaintiffs further

6 allege that such inclusion is not meaningful because their participation in the exam is burdened by the

7 vagaries of the state’s waiver process. Specifically, plaintiffs claim that the uncertainty of the process by

8 which they may obtain a waiver forces them to make a Hobson’s Choice between, on the one hand, taking

9 the test with modifications and facing possible denial of a waiver, or, on the other hand, taking the test

10 without modifications and risking a lower score. With respect to this narrow claim, the Ninth Circuit found

11 that plaintiffs have standing to sue at the present time because they have “alleged a real and immediate

12 injury to all learning disabled students whose IEPs indicate the use of modifications.” Id.

13

In the next breath, however, the Ninth Circuit stated that “the IDEA does not encompass

14 restrictions on the state in the exercise of its traditional authority to set diploma requirements.” Id. On this

15 basis, the Circuit reversed the portion of this Court’s preliminary injunction that temporarily enjoined the

16 defendants from denying a waiver to any learning-disabled student because such an injunction “requires

17 more of state officials than is necessary to assure their compliance with federal law.” Id. (quoting Clark v.

18 Coye, 60 F.3d 600, 604 (9th Cir. 1995)). The question that lingers in the wake of the Ninth Circuit’s

19 ruling is what relief, if any, plaintiffs could obtain that would address the problems created by the uncertainty

20 of the waiver process without encroaching upon the state’s “traditional authority” to set educational

21 standards.

22

This question must be considered in light of alterations that the waiver process has undergone while

23 this matter has been in litigation. Whereas waivers were previously obtainable only from the California

24 Board of Education, revisions to the Education Code effective January 2003 now permit parents and

25 guardians of learning-disabled students to seek waivers directly from local school districts. See Cal. Educ.

26 Code § 60851(c). Since the amended law does not alter the discretionary nature of the waiver process, it

27 does not eliminate the uncertainty that gives rise to plaintiffs’ claim. However, the possibility exists that such

28 uncertainty could be ameliorated or even eliminated by the policies and procedures that school districts

6

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page7 of 11

United States District Court For the Northern District of California

1 adopt to discharge their new responsibility. In addition, the devolution of decision-making authority to the

2 local level may impact plaintiffs’ claim insofar as the named defendants in this lawsuit--the state Department

3 of Education and Board of Education--no longer have control over the waiver process.

4

The parties’ briefs do not address the impact of this change in the law. Accordingly, the Court will

5 defer ruling until the parties have had the opportunity to brief this issue. In particular, the parties should

6 address whether the amendment to section 60851(c) affects the ripeness of plaintiffs’ IDEA claim; whether

7 summary judgment of the claim is appropriate; whether the local districts have become indispensable parties

8 to this litigation; and whether it is possible in light of the new law to adjudicate plaintiffs’ claim on a

9 statewide basis.

10

B. Due Process Claims

11

Plaintiffs allege that the exit exam requirement violates their due process rights because it makes

12 receipt of a diploma contingent on passage of an exam that tests material that students are never taught,

13 because the exam does not test the constructs it is intended to test, and because the exam has not been

14 validated for the specific purpose for which it is used. See 2d Am. Compl. ¶¶ 200-03. A fundamental

15 component of a valid due process claim, however, is the deprivation of a protected interest. See Mishler v.

16 Nevada State Bd. of Med. Examiners, 896 F.2d 408, 409 (9th Cir. 1990). Here, no student has been

17 denied a diploma as a result of the exit exam requirement. Accordingly, plaintiffs’ due process challenge

18 falls squarely within the class of claims that “allege potential future harms caused by the possible denial of a .

19 . . diploma.” Smiley, 2002 WL 31856343, at *1. According to the Ninth Circuit, such claims “are not yet

20 ripe.” Id. As such, they will be dismissed without prejudice.

21

The same analysis applies to plaintiffs’ claims directed at the sufficiency of the notice that plaintiffs

22 have been given with respect to the exit exam requirement. See 2d Am. Compl. ¶ 204. Claims challenging

23 the sufficiency of notice are procedural due process claims. See Fuentes v. Shevin, 407 U.S. 67, 80

24 (1972). Because there has yet to be a deprivation of any plaintiff’s protected interest in a diploma, plaintiffs

25 do not have a valid due process claim at this time. Plaintiffs’ notice-related claims will therefore be

26 dismissed without prejudice as well.

27 ///

28 ///

7

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page8 of 11

United States District Court For the Northern District of California

1 C. ADA Claims

2

Plaintiffs also allege that defendants have administered the CAHSEE in a way that discriminates

3 against them on the basis of their disabilities in violation of the Americans with Disabilities Act (“ADA”) and

4 the Rehabilitation Act of 1973. Under the Rehabilitation Act, no disabled individual “shall . . . be excluded

5 from the participation in . . . any program or activity receiving Federal financial assistance.” 29 U.S.C. §

6 794(a). Under the ADA, disabled individuals “shall [not] be discriminated against . . . in the full and equal

7 enjoyment of [public] goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. §

8 12182(a). As defined by the ADA, “discrimination” includes “failure to make reasonable modifications in

9 policies, practices, or procedures, when such modifications are necessary to afford such goods, services,

10 facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can

11 demonstrate that making such modifications would fundamentally alter the nature of such goods, services,

12 [etc.]” 42 U.S.C. § 12182(b)(2)(A)(ii).

13

While a public entity may be required to make reasonable modifications to its programs to bring

14 them into compliance with the acts, the entity need not make alterations that are “fundamental” or

15 “substantial.” Alexander v. Choate, 469 U.S. 287, 300 (1985). “Reasonableness depends on the

16 circumstances of each case, and requires a ‘fact-specific, individualized analysis of the disabled individual’s

17 circumstances and the accommodations that might allow him to meet the program’s standards.’” Bird v.

18 Lewis & Clark College, 303 F.3d 1015, 1021 (9th Cir. 2002) (quoting Vinson v. Thomas, 288 F.3d

19 1145, 1154 (9th Cir. 2002)).

20

To the extent that plaintiffs’ ADA claims implicate the way in which the CAHSEE is administered

21 or challenge defendants’ development of an alternate assessment, those claims are either unripe in light of

22 the Ninth Circuit’s ruling or moot in light of students’ present ability to take the test with all necessary

23 accommodations and modifications. Other of plaintiffs’ allegations, however, can be read to state a claim

24 that treating test scores received with modifications differently than scores received without modifications

25 amounts to disability discrimination. See id. ¶¶ 177-79, 181, 188. This Court expressly declined to reach

26 such a claim in its preliminary injunction order, see 229 F. Supp. 2d at 991, and hence the claim was not

27 before the Ninth Circuit on appeal of that order. Like plaintiffs’ IDEA-based challenge to the uncertainty

28 created by the waiver process, the possibility that defendants might give differential treatment to scores

8

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page9 of 11

United States District Court For the Northern District of California

1 received with and without modifications forces disabled students to choose between taking the test with

2 modifications (and risking that their scores will be discounted or invalidated) or without them (and risking a

3 failing score). In this way, plaintiffs “have alleged a real and immediate injury to all learning disabled

4 students whose IEPs indicate the use of modifications,” and thus arguably have stated a claim that survives

5 the Ninth Circuit’s ripeness analysis. Smiley, 2002 WL 31856343, at *1.

6

As noted above, students who take the CAHSEE with modifications and receive a passing score

7 will not be denied a diploma if they apply for and obtain a waiver of the exit exam requirement. In effect,

8 therefore, plaintiffs’ claim is that it violates the ADA to require students whose passing scores were

9 obtained with modifications to seek such a waiver in order to receive a diploma. See Compl. ¶ 148 (“The

10 waiver scheme effectively transforms a student’s right to appropriate accommodations into a theoretical

11 possibility, at an indeterminate future time, which could only be obtained, if at all, by pursuing a

12 complicated, uncertain, and humiliating process.”).

13

Plaintiffs must show more than differential treatment, however, to prevail on a claim under the ADA

14 or the Rehabilitation Act. Compliance under the Acts does not require perfect identity of accommodations;

15 rather, “the central inquiry is whether the program, ‘when viewed in its entirety, is readily accessible to and

16 usable by individuals with disabilities.’” Bird, 303 F.3d at 1021 (quoting Barden v. City of Sacramento,

17 292 F.3d 1073, 1075-76 (9th Cir. 2002)). Accordingly, a public entity “[does] not necessarily fail to

18 make reasonable modifications simply because some aspects of the program [do] not conform to [the

19 plaintiff’s] expectations.” Id. So long as the entity has afforded “meaningful access” to its programs, it has

20 satisfied the requirements of the ADA and Rehabilitation Act. Id. (quoting Hunsaker v. Contra Costa

21 County, 149 F.3d 1041, 1043 (9th Cir. 1998)).

22

Whether students who must seek waivers in order to obtain a diploma have “meaningful access” to

23 the CAHSEE program depends heavily on the mechanics of the waiver process. As noted above, authority

24 over waiver applications was transferred from the California Board of Education to local school districts at

25 the beginning of 2003. Accordingly, it may be difficult to assess the extent of the burden imposed by the

26 waiver requirement until local districts have had the opportunity to develop and implement waiver

27 processes. See Scott, 306 F.3d at 663 (“Without knowing the conditions under which . . . a policy is to be

28

9

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page10 of 11

United States District Court For the Northern District of California

1 implemented, no court can make a true determination as to whether the policy as practiced [will violate the

2 law].”).

3

Again, therefore, the change to section 60851(c) of the Education Code may materially affect the

4 ripeness and/or the merits of plaintiffs’ claim. As indicated above, the Court is reluctant to rule without the

5 benefit of additional briefing from the parties in this regard. In particular, the parties should indicate their

6 views with respect to ripeness, the amenability of this claim to summary judgment on a statewide basis, and

7 what sort of waiver process, if any, would afford “meaningful access” to learning-disabled students.

8

D. Declaratory Judgment

9

Plaintiffs’ second amended complaint adds a new claim for declaratory judgment under 28 U.S.C.

10 § 2201. Under the Declaratory Judgment Act, one can challenge a statute prior to its application or

11 enforcement provided “there is a substantial controversy . . . of sufficient immediacy and reality to warrant

12 the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co. , 312 U.S. 270,

13 273 (1941). Here, plaintiffs’ prayer for a declaratory judgment that defendants have violated the ADA,

14 IDEA, and Constitution mirrors plaintiffs’ other substantive claims. As such, the ripeness considerations

15 relevant to plaintiffs’ other claims apply with equal force to their claim for declaratory judgment. See

16 NAACP v. City of Richmond , 743 F.2d 1346, 1351 n.3 (9th Cir. 1984) (“Questions of ripeness frequently

17 arise in cases seeking declaratory relief which anticipate actions or events.”). The Court thus finds that the

18 inclusion of this additional claim for relief does not affect the suitability of this action for adjudication at the

19 present time or otherwise alter the analysis set forth herein.

20

CONCLUSION

21

Having considered “both the fitness of the issues for judicial decision and the hardship to the parties

22 of withholding court consideration,” Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967), the Court hereby

23 DISMISSES as unripe all claims with the exception of plaintiffs’ challenges under the IDEA, the ADA, and

24 the Declaratory Judgment Act to the process for obtaining a waiver of the exit exam requirement. As

25 discussed more fully above, the parties are directed to submit additional briefing in connection with these

26 claims.

27

28

10

Case3:01-cv-01780-CRB Document342 Filed03/13/03 Page11 of 11

United States District Court For the Northern District of California

1

Both parties shall file opening briefs on or before April 18, 2003. Responsive briefs shall be due on

2 or before May 9, 2003. The Court will schedule a hearing if necessary to assist in resolving the issues

3 presented.

4

IT IS SO ORDERED.

5

6 Dated: March 12, 2003 7

/s/ CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G:\CRBALL\2001\1780\Order8c SJ.wpd

11

Case3:01-cv-01780-CRB Document342-1 Filed03/13/03 Page1 of 1
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JULEUS CHAPMAN, Plaintiff,
v. CA DEPT OF EDUCATION,
Defendant.

Case Number: CV01-01780 CRB CERTIFICATE OF SERVICE
/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on March 13, 2003, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Elizabeth J. Cabraser Lieff,Cabraser,Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street 30th Floor San Francisco, CA 94111 Mary Bondy Reiten Lieff Cabraser Heimann & Bernstein LLP 275 Battery Street 30th Floor San Francisco, CA 94111-3339 Dated: March 13, 2003

Richard W. Wieking, Clerk By: Barbara Espinoza, Deputy Clerk

 
 Case3:01-cv-01780-CRB Document367 Filed09/05/03 Page1 of 4

United States District Court
For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 JULEUS CHAPMAN, et al.,

12

Plaintiffs,

13 v.

14 CALIFORNIA DEPARTMENT OF EDUCATION, et al.,
15
Defendants. 16

No. C 01-01780 CRB SUPPLEMENTAL ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
/

17 On March 12, 2003, this Court signed an order dismissing as unripe all of plaintiffs’
18 claims with the exception of plaintiffs’ challenges under the IDEA, the ADA, and the
19 Declaratory Judgment Act to the process for obtaining a waiver of the exit exam requirement.
20 The Court requested additional briefing in connection with those claims. Subsequently, the
21 Court’s briefing schedule was extended to permit the parties to address the implications of
22 the Board of Education’s expected decision as to whether to delay the effective date of the
23 exit exam requirement.
24 On July 9, 2003, the nine members of the state Board of Education voted unanimously
25 to eliminate the exit exam as a graduation requirement for the class of 2004 but to reinstate it
26 for the class of 2006. The issue now before the Court is what effect that decision has on the
27 remaining claims in this litigation.
28

Case3:01-cv-01780-CRB Document367 Filed09/05/03 Page2 of 4

United States District Court
For the Northern District of California

1 I. Standing

2

In order to invoke federal court jurisdiction, a plaintiff “must himself [have] suffered

3 some threatened or actual injury resulting from the putatively illegal action.” City of Tahoe

4 Regional Planning Agency v. California Tahoe Regional Planning Agency, 625 F.2d 231,

5 234 (9th Cir. 1980). Accordingly, only individuals who face some risk of injury as a result of

6 the exit exam requirement have standing to assert a challenge in federal court. By virtue of

7 the Board of Education’s decision to delay the requirement, only students who anticipate

8 graduating in 2006 or later have standing to bring such a challenge.

9

All of the named individual plaintiffs in the second amended complaint are in the

10 class of 2004 or 2005. None of these plaintiffs will be required to pass the exit exam in order

11 to graduate. As such, they do not have standing to sue.

12

The only other plaintiff in this litigation is the Learning Disabilities Association of

13 California, a volunteer organization serving individuals with learning disabilities. As the

14 Court noted in its March 12, 2003 order, plaintiffs do not claim that any of the Association’s

15 members have taken the CAHSEE or will be subject to the CAHSEE requirement.

16 Accordingly, the Association will not suffer any “injury in fact” as a result of the exit

17 requirement and thus does not have standing to bring this action on its own. See Lujan v.

18 Defenders of Wildlife, 504 U.S. 555, 560 & n.1 (1992) (“injury must affect the plaintiff in a

19 personal and individual way”); id. at 563 (plaintiffs must be directly affected “apart from

20 their ‘special interest in the subject’”) (citation omitted).

21

In the absence of a named plaintiff with standing to bring this action, the case must

22 and will be dismissed.

23 II. Status of Challenge to Waiver Process

24

Under section 60851(c) of the California Education Code, as revised in January 2003,

25 the governing board of a local school district “may waive the requirement to successfully

26 pass one or both subject matter parts of the high school exit examination for a pupil with a

27 disability” provided that three conditions are met: (1) the student has an IEP or section 504

28 plan that requires particular accommodations or modifications for taking the exam; (2) the

2

Case3:01-cv-01780-CRB Document367 Filed09/05/03 Page3 of 4

United States District Court
For the Northern District of California

1 student has completed or is progressing toward the completion of sufficient high school level

2 coursework to have attained the skills and knowledge otherwise needed to pass the exit

3 exam; and (3) the student has received the equivalent of a passing score on the exit exam

4 using a modification. See Cal. Educ. Code § 60851(c) (emphasis added).

5

In December 2002, the Ninth Circuit found that plaintiffs’ claims regarding access to

6 the CAHSEE were ripe because section 60851(c) forced learning disabled students who were

7 subject to the exit exam requirement to make a Hobson’s choice between taking the

8 CAHSEE with modifications and risking denial of a waiver, or taking it without

9 modifications and risking failure. As this Court noted in its March 12, 2003 order, it was

10 “the discretionary nature of the waiver process”–the fact that a student who meets the three

11 specified conditions may be granted a waiver–that gave rise to this dilemma. Slip op. at 6.

12 By implication, a waiver process that is less discretionary–one in which students who met

13 certain conditions will be granted waivers–would obviate the “real and immediate injury”

14 identified by the Ninth Circuit. See Smiley v. Calif. Dep’t of Educ., 2002 WL 31856343, at

15 *1 (9th Cir. Dec. 19, 2002).

16

Since the Ninth Circuit issued its ruling, and subsequent to this Court’s March 12,

17 2003 order, the state has clarified its position regarding the availability of waivers. In

18 supplemental pleadings filed with this Court, the state has taken the position that section

19 60851(c) vests no discretion in local school boards to grant or deny waivers to students who

20 satisfy the statutory criteria. Rather, according to the state, “[i]f a student meets the

21 [statutory] requirements for obtaining a waiver, a waiver will be granted.” Defs.’ Supp. Br.

22 at 11 (emphasis added). As such, the only discretion left for school boards to exercise is the

23 discretion “to decide whether the requirements have been met.” Id. Thus, “when a student

24 has taken the CAHSEE in a fundamentally altered form (i.e., with the help of calculators,

25 readers, corrective devices, and other assistance that non-disabled students cannot use), but

26 has otherwise demonstrated sufficient high school proficiency as required by the statute, a

27 waiver will be granted.” Id.

28

3

Case3:01-cv-01780-CRB Document367 Filed09/05/03 Page4 of 4

United States District Court
For the Northern District of California

1

In light of this submission, it appears that the uncertainty that learning disabled

2 students may have faced when deciding whether to take the CAHSEE with modifications has

3 been significantly reduced. Local school districts’ policies and procedures with respect to

4 waiver requests, many of which are still in development, may further reassure learning

5 disabled students that the decision to use modifications on the exit exam will not

6 substantially burden their access to a high school diploma.

7

CONCLUSION

8

Because all of the named plaintiffs lack standing to sue, this matter is hereby

9 DISMISSED without prejudice.

10

IT IS SO ORDERED.

11

12 Dated: September 5, 2003 13

/s/ CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G:\CRBALL\2001\1780\Order12 SJ.wpd

4

Case3:01-cv-01780-CRB Document367-1 Filed09/05/03 Page1 of 1
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JULEUS CHAPMAN, Plaintiff,
v. CA DEPT OF EDUCATION,
Defendant.

Case Number: CV01-01780 CRB CERTIFICATE OF SERVICE
/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on September 8, 2003, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Mary Bondy Reiten Lieff Cabraser Heimann & Bernstein LLP 275 Battery Street 30th Floor San Francisco, CA 94111-3339
Dated: September 8, 2003

Richard W. Wieking, Clerk By: Barbara Espinoza, Deputy Clerk

 
 Case3:01-cv-01780-CRB Document425 Filed04/07/04 Page1 of 6

United States District Court
For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 JULEUS CHAPMAN, et al.,

No. C 01-01780 CRB

12 Plaintiffs,
13 v.
14 CALIFORNIA DEPARTMENT OF
15 EDUCATION, et al.,

ORDER RE ATTORNEYS’ FEES AND COSTS

16

Defendants.

/

17

18

Now before the Court is plaintiffs’ motion for an award of attorneys’ fees. Having

19 carefully considered the papers submitted by the parties, and having had the benefit of oral

20 argument, plaintiffs’ motion for an award of attorneys’ fees is GRANTED in part and

21 DENIED in part.

22

DISCUSSION

23 A. Entitlement to and Calculation of Fees

24

The party seeking attorneys’ fees has the burden of “establishing entitlement to an

25 award and documenting the appropriate hours expended and hourly rates.” Hensley v.

26 Eckerhart, 461 U.S. 424, 437 (1983).

27

“The most useful starting point for determining the amount of a reasonable fee is the

28 number of hours reasonably expended on the litigation multiplied by a reasonable hourly

Case3:01-cv-01780-CRB Document425 Filed04/07/04 Page2 of 6

United States District Court
For the Northern District of California

1 rate.” Id. at 433. In addition to documenting the appropriate hours expended in the

2 litigation, the fee applicant must submit evidence in support of those hours worked. See id.

3 From the initial fee calculation, the district court should exclude hours that were not

4 “reasonably expended,” including “excessive, redundant or otherwise unnecessary” hours.

5 Id. at 434 (citation omitted).

6

A district court may also adjust the fee award based on other considerations, such as

7 “the important factor of ‘results obtained.’” Id. In other words, the trial court should

8 consider whether the prevailing party achieved “a level of success that makes the hours

9 reasonably expended a satisfactory basis for making a fee award.” Id. “If . . . a plaintiff has

10 achieved only partial or limited success, the product of hours reasonably expended on the

11 litigation as a whole times a reasonable hourly rate may be an excessive amount.” Id. at 436.

12 Accordingly, the fact that a plaintiff is the “‘prevailing party’ . . . may say little about

13 whether the expenditure of counsel’s time was reasonable in relation to the success

14 achieved.” Id.

15

“There is no precise rule or formula for making these determinations.” Id. Rather, the

16 district court, in its discretion, “may attempt to identify specific hours that should be

17 eliminated, or it may simply reduce the award to account for the limited success.” Id. at 436-

18 37.

19 B. Amount of Fees

20

On December 1, 2003, plaintiffs submitted their motion for attorneys’ fees and costs.

21 The Court held a hearing on that motion on December 19, 2003. At the hearing, the Court

22 informed plaintiffs that its fees request was inadequate because the Court was unable to

23 calculate the amount of time spent by plaintiff’s attorneys on the issue on which plaintiff

24 prevailed. Plaintiffs had merely calculated all fees spent on the litigation, and then reduced

25 that amount by two-thirds–plaintiff’s own determination of its degree of success. In other

26 words, plaintiffs unilaterally decided that they had been one-third successful in the litigation,

27 and therefore requested one-third of the total fees and costs that they had calculated for the

28

2

Case3:01-cv-01780-CRB Document425 Filed04/07/04 Page3 of 6

United States District Court
For the Northern District of California

1 entire litigation. The Court had never given any indication that the plaintiffs were “one-

2 third” successful, and the Court finds no legal basis for this determination.

3

Here, plaintiffs are the “prevailing party” on the very narrow, limited issue of

4 accommodations/modifications. Therefore, at the December 19 hearing, the Court directed

5 plaintiffs to submit supplemental briefing on the fees spent on that issue alone. Plaintiffs

6 submitted the supplemental briefing, and the Court held another hearing on fees on March

7 12, 2004. At the March 12 hearing, plaintiffs submitted even further briefing, and the motion

8 was deemed submitted on March 22, 2004.

9

The following table shows the fees and costs requested by plaintiffs in their original

10 fee request and their revised fee request.

11 Purpose

Original Fee Request

12 Attorneys’ Fees on Merits $364,062.06

Revised Fee Request $650,775.50

13 Costs

$30,037.17

$36,301.16

14 Fees on Fees 15 Total

$39,047.65 $433,146.88

$103,226.50 $790,303.16

16

This Court finds that plaintiffs are entitled to recover attorneys’ fees and costs solely

17 attributable to the very limited issue upon which they prevailed:

18 accommodations/modifications. W hile plaintiffs contends that the appropriate cut-off date

19 for all work, both trial and appellate, is December 20, 2002, this Court finds that the cut-off

20 dates submitted by defendants–February 21, 2002, for trial court work and September 4,

21 2002, for appellate work–are correct.

22

This Court is persuaded by defendants’ analysis and conclusions, as contained in their

23 opposition to plaintiffs’ supplemental briefing, regarding recoverable fees for successful trial

24 and appellate work. Moreover, this Court finds that defendants’ calculations and the tables

25 attached to defendants’ supplemental opposition brief are based on a comparison of

26 plaintiffs’ original and supplemental billing records. According to his declaration, Mr. Press,

27 Supervising Deputy Attorney General and co-counsel of record for defendants, made a note

28 of each instance where plaintiffs, in their supplemental records, had reduced the claimed fee

3

Case3:01-cv-01780-CRB Document425 Filed04/07/04 Page4 of 6

United States District Court
For the Northern District of California

1 to “zero.” See Press Decl., ¶ 7. Mr. Press then noted such instances in bold in the tables

2 attached to defendants’ supplemental opposition brief. See id.; see also Def. Supp. Opp.

3 Brief, Tables 1-7. The Court agrees with the calculations as submitted by defendants.

4

Accordingly, this Court finds that plaintiffs are entitled to $39,798.50 for “successful”

5 trial work and $1,764.00 for “successful” appellate work, for a total of $41,562.50. This

6 includes time spent on the accommodations/modifications issue only.

7

Inasmuch as the Court does not participate in settlement discussions, and is prohibited

8 from learning the amount of time spent in settlement negotiations on successful claims, and

9 having ordered the parties to attempt settlement, this Court finds that plaintiffs are also

10 entitled to recover all fees for time spent on settlements and demands, which amounts to

11 $31,318.50. See Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991)

12 (holding that “a plaintiff who is unsuccessful at a stage of litigation that was a necessary step

13 to her ultimate victory is entitled to attorney’s fees even for the unsuccessful stage.”)

14 C. Fees on Fees

15

Plaintiffs seek $103,226.50 in fees on fees. The Ninth Circuit “has repeatedly held

16 that time spent by counsel in establishing the right to a fee award is compensable.” Davis v.

17 City and County of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992) vacated and

18 remanded on other grounds, 984 F.2d 345; see also Manhart v. City of Los Angeles, 652

19 F.2d 904, 909 (9th Cir. 1981) vacated and remanded on other grounds, 461 U.S. 951 (1983)

20 (“It would be inconsistent to dilute an award of fees by refusing to compensate an attorney

21 for time spent to establish a reasonable fee.”).

22

However, a proportionate reduction in such fees may be warranted as the Ninth

23 Circuit clearly explained in Thompson v. Gomez, 45 F.3d 1365, 1367 (9th Cir. 1995):

24 “Because Hensley . . . requires the district court to consider the relationship between the

25 amount of the fee awarded and the results obtained, fees for fee litigation should be excluded

26 to the extent that the applicant ultimately fails to prevail in such litigation.” (Emphasis in

27 original.) Thus, as explained by the Thompson court, the relative degree of success in

28 litigating for merits fees should bear upon the size of the fees-on-fees award. Id at 1368.

4

Case3:01-cv-01780-CRB Document425 Filed04/07/04 Page5 of 6

United States District Court
For the Northern District of California

1 The Ninth Circuit approved of an arithmetic formula to make this reduction, which was

2 illustrated by the district court as follows: “if Plaintiffs request $1000 in merit fees, but are

3 only awarded $500, then any attorneys’ fees generated in litigating the merit fees would be

4 reduced by 50%.” Id. at 1367 n.1. Accordingly, a court may determine what percentage of

5 the merit fees requested were awarded, and award that same percentage of the fees on fees

6 requested. Id. at 1368 (noting with approval its holding in Harris v. McCarthy, 790 F.2d 753,

7 759 (9th Cir. 1986) that the district court did not abuse its discretion when, after plaintiffs

8 received 11.5% of the merits fees they had sought, it simply applied that percentage (11.5%)

9 to plaintiff’s request for fees).

10

This Court finds that the Thompson court’s reasoning is applicable here, and plaintiffs

11 are entitled to the same percentage of fees on fees as they were awarded for the merits fees.

12 In this case it is somewhat complicated by the fact that plaintiffs’ original fee request nearly

13 doubled when the Court asked for supplemental briefing. Plaintiffs’ initial fee request was

14 insufficient to enable this Court to accurately evaluate the reasonable fees that could be

15 awarded for successful claims. The Court, therefore, gave plaintiffs a subsequent

16 opportunity to more accurately demonstrate the fees and costs incurred for the portion of the

17 lawsuit on which plaintiffs prevailed. Plaintiffs’ revised request includes an additional

18 $64,178.85 in attorneys’ fees spent on the supplemental briefing. Even with the additional

19 time spent, the Court was unable to easily identify the fees spent on successful claims and

20 used defendants analysis and conclusions in calculating the appropriate merit fees award.

21

Plaintiff’s original merit fees request was for $364,062.06, and their revised merit fees

22 request nearly doubled to $650,775.50. As noted above, the Court has determined that a

23 reasonable merit fees award is for a total of $72,881.00. If the Court bases the percentage of

24 success on the original request, plaintiffs received 20.0% of the fees sought. If, however, the

25 Court bases that percentage on the revised request, plaintiffs merely received 11.2% of the

26 fees sought. The Court will give the plaintiffs the benefit of the original fee request in

27 calculating the percentage of success. Thus, the Court will give plaintiffs 20.2% of the

28 $103,226.50 (the revised fees on fees request) sought, which is $20,645.30.

5

Case3:01-cv-01780-CRB Document425 Filed04/07/04 Page6 of 6

United States District Court
For the Northern District of California

1

CONCLUSION

2

After careful consideration, this Court finds that plaintiffs are entitled to attorneys’

3 fees in the amount of $41,562.50 for successful trial and appellate work on the

4 accommodations/modifications issue, attorneys’ fees in the amount of $31,318.50 for time

5 spent on settlements and demands, and fees on fees in the amount of $20,645.30 for original

6 and supplemental briefing on the issue of attorneys’ fees, for a total of $93,526.30 in

7 attorneys fees. Additionally, plaintiffs are entitled to costs in the amount of $36,301.16. In

8 sum, plaintiffs are entitled to $129,827.46 in attorneys fees and costs.

9

IT IS SO ORDERED.

10

11 Dated: April 7, 2004 12

/s/ CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G:\ CRBALL\2001\1780\Order 14b attys fees.wpd

6

 
 2002 WL 32854376
United States District Court,
N.D. California.
Juleus CHAPMAN, et al., Plaintiffs,
v.
CALIFORNIA DEPARTMENT OF EDUCATION, et al., Defendants.
No. C–01–1780 CRB (EMC).Feb. 6, 2002.
Attorneys and Law Firms
Alison M. Aubrejuan, Melissa W. Kasnitz, Rhoda Benedetti, Sid Wolinsky, Disability Rights Advocates, Oakland, CA, Elizabeth J. Cabraser, Eve H. Cervantez, Mary Bondy Reiten, Morris A. Ratner, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, for Plaintiffs.
Amy Bisson Holloway, Michael Hersher, California Department of Education, Suzanne B. Giorgi, CA Attorney General's Office, Sacramento, Ca, Douglas M. Press, Teresa L. Stinson, CA Attorney General's Office, San Francisco, CA, James R. Hawley, Hoge Fenton Jones & Appel, San Jose, CA, for Defendants.
Opinion
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL (No. 128)
CHEN, Magistrate J.
This matter comes before the Court on the motion to compel by plaintiff Juleus Chapman, et al. (hereinafter “Plaintiffs”). On January 23, 2002, Plaintiffs moved to compel defendants California Department of Education, et al. (hereinafter “Defendants”) to respond to certain discovery requests including, inter alia, requests for admission and interrogatories. Following meet and confer efforts ordered by the Court and through Defendants' Opposition to the instant motion, the parties have resolved all of the discovery disputes1 with the exception of Plaintiffs' request that Defendants respond to Plaintiffs' Second Set of Interrogatories.
Defendants object to Plaintiffs' Second Set of Interrogatories, arguing that the interrogatories: [1] are numerous, in violation of Federal Rule of Civil Procedure 33(a); [2] are overbroad and unduly burdensome; and [3] have already been answered in good faith.
The Court, however, does not find these arguments persuasive.
1. NUMERICAL LIMITS UNDER FEDERAL RULE OF CIVIL PROCEDURE 33(a)
Federal Rule of Civil Procedure 33(a) provides that without leave of court or written stipulation, a party may not serve more than twenty-five interrogatories including subparts on any other party.2

Defendants argue that Plaintiffs' Second Set of Interrogatories “can and should be broken down into discrete subparts, each of which can and should be treated as a ‘stand alone’ question,” and as such, exceeds the number of interrogatories as provided in Rule 33.
Although there is no bright-line test as to whether a subpart should be counted as an interrogatory, the weight of authority interpreting Rule 33(a) requires examining whether the subparts are “ ‘... logically or factually subsumed within and necessarily related to the primary question.” ’ Safeco of America v. Rawstron, 181 F.R.D. 441, 445 (C.D.Cal.1998), quoting, Ginn v. Gemini Inc., 137 F.R.D. 320, 322 (D.Nev.1991). Stated differently, the question is whether there is a “ ‘direct relationship between the various bits of information called for” ’ by the subparts, id. at 444, quoting, Clark v. Burlington Northern Railroad, 112 F.R.D. 117, 120 (N.D.Miss.1986), or if the subparts are a “ ‘logical extension of the basic interrogatory.” ’ Id., quoting, Myers v. United States Paint Co., 116 F.R.D. 165, 165–66 (D.Mass.1987). Thus, for instance, as the court held in Ginn, supra, an interrogatory which asks the respondent to state the amount of each loss or damage for an alleged breach of an implied-in-fact contract together with the factual basis for the claim and all calculations relied upon constitutes a single interrogatory. See Ginn, 137 F.R.D. at 321–22.
Here, Plaintiffs' Second Set of Interrogatories consists of one numbered interrogatory which references several requests for admission and seeks detailed information supporting responses thereto. Specifically, the interrogatory requests that Defendants identify, for each request for admission not unqualifiedly admitted among Set One, Request Nos. 4–7 and all of Set Two: [a] the number of the request for admission; [b] all facts on which Defendants base their response (including, but not limited to, the names, addresses and telephone numbers of all person who have knowledge of those facts); and [c] “with specificity all documents and other tangible things that support your response and state the name, address, and telephone number of the person who has each document or thing.” (emphasis omitted). Arguably, seeking disclosure of facts (including the identity of those knowledgeable) and documents (including the identity of the individual in possession of the item) are directly related and should be treated as one subpart. On the other hand, at least one court determined that similar requests should be treated as separate interrogatories. See Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 685–86 (D. Nevada 1997) (determining that a subpart asking for documents in addition to facts should be treated as two subparts). In Safeco, supra, interrogatories similar to the “subparts” herein were numbered as separate interrogatories and treated as such. See Safeco, 181 F.R.D. at 442– 43.
Furthermore, Plaintiffs' Second Set of Interrogatories reference fifteen different requests for admission for which Defendants are required to respond. If the interrogatory relates to distinct and separate requests for admission, the interrogatories should be treated as the same number of subparts as there are requests for admission. See Schwarzer, Tashima & Wagstaffe, Rutter Group Prac. Guide; Fed. Civ. Pro. Before Trial § 11:621.5 (2001) (stating that an interrogatory asking for the basis for denial of any requests for admission is treated as many interrogatories as there are requests for admission); Safeco, 181 F.R.D. at 445.

Assuming that Plaintiffs' First Set of Interrogatories, which referenced two requests for admission, and Plaintiffs' First Set of Interrogatories, which referenced fifteen requests for admission, are treated as containing two separate subparts under Kendall, supra, Plaintiffs' interrogatory count numbers thirtyfour.
However, the Court may grant a party leave to serve additional interrogatories under Rules 33(a) and 26(b)(2). Leave to serve additional interrogatories should not be granted where: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in contoversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. See Fed.R.Civ.P. 26(b)(2); see also Walker v. Lakewood Condominium Owners Ass'n, 186 F.R.D. 584, 588 fn. 9 (C.D.Cal.1999); Lukens v. National R.R. Passenger Corp., No Civ. A 99–4102, 2000 WL 1022988, *1 (E.D.Pa. July 6, 2000).
Here, although the thirty-four interrogatories are over the numerical limit imposed by Rule 33(a), the interrogatories are neither cumulative nor duplicative. The subject matter of the interrogatories (e.g., relating to assessment of the test validity, etc.) appear directly relevant to the issues in the case. Moreover, the request to identify documents (the second subpart of the interrogatory) could have been propounded as a request for production of documents under Rule 34 for which the Rule 33(a) numerical limit of interrogatories would not apply. To limit discovery which is clearly relevant under these circumstances would exalt form over substance. Therefore, the Court sua sponte grants Plaintiffs leave to serve the interrogatories at issue. However, Plaintiffs must seek leave of Court to file any additional interrogatories.
2. UNDUE BURDEN
Defendants also object to Plaintiffs' Second Set of Interrogatories arguing that interrogatories, such as those contained in the Second Set, requesting all facts, documents and witnesses are unduly burdensome and oppressive. While interrogatories that call for all facts, documents and witnesses may, in some circumstances, place an unreasonable burden on the responding party, see Safeco, 181 F.R.D. at 447–48, an interrogatory that requests “all facts” in support of a refusal to admit specific relevant facts is not burdensome and oppressive per se as Defendants argue. Interrogatories such as those propounded here may facilitate development of the case. See Richlin v. Sigma Design West, Ltd., 88 F.R.D. 634, 638 (E.D.Cal.1980) (stating that interrogatories may be used to “require an adverse party to disgorge all relevant facts within his knowledge”); see also In re U.S. Financial Securities Litigation, 74 F.R.D. 497, 498 (S.D.Cal.1975) (stating that interrogatories should be permitted to allow for a party's unfettered discovery of all relevant and necessary materials).
The interrogatories relative to certain requests for admission do not seek all facts, documents, and witnesses supporting any refusal to admit every allegation of the Complaint. Rather the interrogatories seek facts relative to factually discrete topics—e.g., whether Defendants have assessed whether the

skills and knowledge tested by the California High School Exit Examination (CAHSEE) in fact corresponds to the curriculum being followed by students with disabilities who took the CAHSEE in March 2001.
Nor are Defendants asked to provide all facts, witnesses and documents to prove a negative. The upshot of the interrogatories when coupled with the request for admissions is simply to ask whether Defendants have any facts demonstrating, for example, that such an assessment (described above) was in fact made. Where such an assessment was made, the interrogatory essentially asks Defendants to disclose facts relative to that assessment. This is far different from the problem of interrogatories seeking “all facts” supporting denials of wide ranging allegations pled by the plaintiff discussed in Safeco, supra.
Thus, the interrogatories here directed at specific factual questions are not unduly burdensome and oppressive. Defendants do not argue in their opposition that the information sought is irrelevant or that responding to these interrogatories would be burdensome in any specific way. Absent a finding by the Court that the interrogatories are per se oppressive, a generalized objection without a specific showing is inadequate and cannot be sustained. See Walker, 186 F.R.D. at 586–87.
3. GOOD FAITH ANSWER
The Court is also not persuaded with Defendants' final argument that they have responded to the subject interrogatories in good faith. According to Plaintiffs, Defendants responded based upon their own definition of instructional and curricular validity rather than responding to the precise interrogatory (as it related to the request for admission) propounded. The proponent of discovery is the master of its terms. So long as the information sought is within the broad bounds of relevancy as set forth in Rule 26 and is otherwise properly discoverable, the respondent may not unilaterally reshape or rephrase the discovery request. While it appears that Defendants may dispute what the proper definitions of instructional validity and curricular validity are, that substantive question or its legal significance to the outcome of this case is not before the Court. Rather, the question here is whether the information sought by Plaintiffs is sufficiently relevant to permit discovery. The information sought by the interrogatories at issue appears relevant and Defendants do not argue otherwise.
Plaintiffs' Motion to Compel (Docket No. 128) is GRANTED IN PART as to Plaintiffs' Second Set of Interrogatories, in its entirety. Defendants' responses to said interrogatories (relating to any requests for admission addressed and not unqualifiedly admitted) shall be served on Plaintiffs no later than February 22, 2002, at 12:00 noon.
All other issues addressed by Plaintiffs' motion to compel (Docket No. 128) are DENIED AS MOOT.
IT IS SO ORDERED.
Footnotes
1

On January 25, 2002, the Court received a joint letter from the parties wherein Plaintiffs agreed to redraft various contested requests for admission from the two sets of requests for admission previously served on Defendants. The Court is informed that Plaintiffs provided these redrafts and that Defendants have responded thereto.
2
Defendants also intimate that Plaintiffs' interrogatories should be limited to twenty-five total as to all defendants and that by asking the same interrogatory to both defendant the State Board of Education and defendant the State Department of Education, the interrogatory should be counted twice against the cap of twenty-five. However, by its terms Rule 33(a) applies to interrogatories served by one party upon “any other party.” Thus, where there are multiple defendants (at least where the defendants do not act in unison and are more than nominally separated), the limit imposed by Rule 33(a) applies to each defendant. Defendants have not argued or demonstrated that they are acting in unison.

 
 1 BILL LOCKYER Attorney General of the State of California
2 THOMAS R. YANGER Senior Assistant Attorney General
3 DOUGLAS M. PRESS [SBN 168740] Supervising Deputy Attorney General
4 KARA READ-SPANGLER [SBN 167532] Deputy Attorney General
5 KARIN S. SCHWARTZ [SBN 209455] Deputy Attorney General
6 455 Golden Gate Avenue, Suite 11000
 San Francisco, CA 94102-7004

7 Telephone: (415) 703-5540; (916) 327-0356;
 (415) 703-1382

8 Fax: (415) 703-5480; (916) 324-5567


9 MARSHA BEDWELL General Counsel
10 AMY BISSON HOLLOWAY [SBN 163731] Deputy General Counsel
11 California Department of Education
 1430 N Street, Suite 5319

12 Sacramento, CA 95814
 Telephone: (916) 319-0860

13 Fax: (916) 319-0155


14 Attorneys for Defendants

15 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
16 COUNTY OF ALAMEDA
17

18 JULEUS CHAPMAN, a minor, by his guardian ad
19 litem Monique Chapman, et al., on behalf of themselves and all individuals similarly situated,
20 Plaintiffs,
21 v.
22 CALIFORNIA DEPARTMENT OF EDUCATION;
23 CALIFORNIA BOARD OF EDUCATION; JACK O’CONNELL, in his capacity as Superintendent of
24 Public Education in California,

CASE NO. 2002049636 SETTLEMENT AGREEMENT

25

Defendants.

26

27

28

Settlement Agreement

1

Case No.: 2002049636

1

Plaintiff class representatives, Carly Simon, a minor, by her guardian ad litem, Diane Davis;

2 Meyshe Shapiro-Nygren, a minor, by his guardian ad litem, Tobie Shapiro; Juleus Chapman, a

3 minor, by his guardian ad litem, Monique Chapman; Ryan Smiley, a minor, by his guardian ad

4 litem, Krista Smiley; Jennifer Lyons, a minor, by her guardian ad litem, Susan Lyons; Ashley

5 Harley, a minor, by her guardian ad litem, Jacqueline Harley; Philip Cacho, a minor, by his

6 guardian ad litem, Ann McDonald-Cacho; Kyle Stofle, a minor, by his guardian ad litem, Karen

7 Bruno; Justin Pierce, a minor, by his guardian ad litem, Melody Arevalo; Ashton Thadani, a

8 minor, by his guardian ad litem, Louise Dutka, on behalf of themselves and all other individuals

9 similarly situated and all class members (plaintiffs), and their attorneys, Disability Rights

10 Advocates, in the action of Chapman, et al. v. the California Department of Education, et al.,

11 Alameda County Superior Court, Case No. 2002049636 (action) and defendants, the California

12 Department of Education (CDE), the California State Board of Education (SBE), and the

13 Superintendent of Public Education (defendants), enter into this settlement agreement and hereby

14 agree as follows:

15

1. Defendants agree to propose and support legislation that, once enacted, would create a

16 procedure for certain students with disabilities in the Class of 2006 who have not passed both

17 parts of the California High School Exit Exam (CAHSEE) and who are not eligible for a local

18 waiver pursuant to Education Code section 60851 for the part(s) not yet passed. Under the

19 procedure, qualifying students from the Class of 2006 would not be required to pass the

20 CAHSEE in order to receive a high school diploma. The procedure would remain in effect until

21 and including December 31, 2006. As set forth below, a school district will submit a request to

22 the California State Board of Education (SBE) that the CAHSEE requirement be excused as to a

23 particular student, and the SBE will approve such a request, if all of the following criteria have

24 been satisfied:

25

(a) the student has an existing IEP or Section 504 Plan;

26

(b) according to the student’s IEP or Section 504 Plan, dated on or before July 1,

27 2005, the student was on high school diploma track with an anticipated graduation from high

28 school in 2006;

Settlement Agreement

2

Case No.: 2002049636

1

(c) the student’s school district has certified that the student has satisfied all other

2 state and local requirements for the receipt of a 2006 high school diploma;

3

(d) the student has taken the part(s) of the CAHSEE (ELA or mathematics), that the

4 student has not yet passed, at least twice beyond the 10th grade, including at least once during his

5 or her senior year with those accommodations and/or modifications, if any, specified in the

6 student’s IEP or Section 504 Plan, and the student has not received a score of 350 or above on

7 the section(s) for which a request is being submitted under this paragraph;

8

(e) the student’s school district has certified either that: (1) the student has availed

9 him or herself of targeted remedial instruction focused on the CAHSEE, either through the

10 student’s school (as provided in Education Code section 60851, subdivision (f)) or from a private

11 tutor or other means; or (2) the school district failed to provide the student with the opportunity

12 to receive such remedial or supplemental instruction during the student’s senior year;

13

(f) if the student received remedial or supplemental instruction, as set forth in

14 paragraph 1(e)(1), above, the student has taken the CAHSEE at least once following the receipt

15 of such remedial or supplemental instruction; however, if following the receipt of such remedial

16 or supplemental instruction there is no further administration of the CAHSEE on or before

17 December 31, 2006, this sub-division 1(f) shall not apply; and

18

(g) The student, and the student’s parent(s) or legal guardian(s) if the student is a

19 minor, have acknowledged in writing that the student is entitled to receive free appropriate

20 public education up to and including the academic year during which the student turns 22 years

21 old, or until the student receives a high school diploma, whichever occurs first.

22

2. If (a) on or before September 9, 2005, the California State Legislature passes a bill that

23 would have the effect of excusing, for at least some students with disabilities who are in the

24 Class of 2006, the requirement that they pass or satisfy the CAHSEE to obtain a high school

25 diploma (hereinafter, a “CAHSEE Bill”); (b) the Governor signs or allows that bill to become

26 law; and (c) the parties agree that the bill contains substantively at least the same components set

27 forth in paragraph 1, then the parties shall jointly stipulate to entry of an order:

28

(i) staying this action in its entirety for the class members of the Class of 2006 until

Settlement Agreement

3

Case No.: 2002049636

1 and including December 31, 2006 (the last date upon which any student subject to this agreement

2 could satisfy the requirements set forth herein);

3

(ii) staying this action for all other class members until and including September 30,

4 2006, except that the parties may:

5

(a) Serve interrogatory requests, request for productions of documents and things,

6 requests for admission, and no more than four deposition notices on or after August 1, 2006;

7

(b) Any substantive written discovery responses shall be due on the later of

8 September 30, 2006 or the deadlines set by the California Code of Civil Procedure. Provided

9 that plaintiffs serve written discovery on August 1, 2006, any objections to such written

10 discovery requests shall be due on August 21, 2006.

11

(c) The parties will meet and confer to schedule any depositions to take place, if

12 reasonably possible, between September 1, 2006 and October 20, 2006;

13

(d) On or after June 1, 2006, plaintiffs may informally request (without the need

14 for formal requests for production of documents) that defendants produce copies of any reports

15 or studies in their possession that were generated on or after October 1, 2005, and that (1)

16 discuss or analyze issues relating to implementation of the CAHSEE for students with

17 disabilities; (2) are in final, rather than draft, form; (3) contain only nonconfidential, public

18 information; and (4) are not available on the Internet. Defendants shall produce any such

19 documents unless they believe that there is good cause not to do so, in which case defendants

20 shall identify any documents being withheld on this basis.

21

If this paragraph 2 becomes operative, neither the named plaintiffs nor any of their agents,

22 attorneys, successors, assigns, representatives nor anyone acting or purporting to act on their

23 behalf, shall bring any other lawsuit concerning any related or similar claims to those asserted in

24 this action until on or after January 1, 2007.

25

3. If (a) on or before September 9, 2005, the California State Legislature passes a

26 CAHSEE Bill; (b) the Governor signs or allows that bill to become law, and (c) the parties do

27 not agree on whether the bill contains substantively at least the same components set forth in

28 paragraph 1, then the parties shall promptly meet and confer in an attempt to resolve their

Settlement Agreement

4

Case No.: 2002049636

1 dispute. If the parties are unable to agree on a course of action, then the parties shall submit to

2 the Court the question of whether the bill contains substantively at least the same components set

3 forth in paragraph 1; alternatively, the parties may agree to submit the question for binding

4 mediation before a mediator upon which they both shall agree.

5

(i) If the Court (or mediator) determines that the law does contain substantively at

6 least the same components set forth in paragraph 1, then the parties shall stipulate to a stay of

7 litigation as provided in paragraph 2, and plaintiffs and their attorneys shall agree that neither

8 named plaintiffs nor any of their agents, attorneys, successors, assigns, representatives nor

9 anyone acting or purporting to act on their behalf, shall bring any other lawsuit concerning any

10 related or similar claims to those asserted in this action until on or after January 1, 2007.

11

(ii) If the Court (or mediator) determines that the law does not contain substantively at

12 least the same components set forth in paragraph 1, then the parties shall promptly meet and

13 confer on what additional procedures, if any, may be appropriate. If the parties are unable to

14 agree, then this settlement agreement shall be considered null, void and of no effect, and the

15 parties shall be under no obligation to perform under the settlement agreement.

16

4. If, on or before September 9, 2005, the California State Legislature fails to pass a

17 CAHSEE Bill, or if the Legislature does pass a bill on or before that date but the Governor

18 vetoes it, then this settlement agreement shall be considered null, void and of no effect, and the

19 parties shall be under no obligation to perform under the settlement agreement.

20

5. Nothing in this settlement agreement shall limit the rights of any named plaintiff,

21 aggrieved individual, or class member to bring any action directly against any school district

22 based on its alleged failure to follow any applicable law.

23

6. This settlement agreement among the parties shall not be cited or relied upon by any of

24 the parties in this or in any other litigation or proceeding, or admissible in this or any other

25 litigation or proceeding, except for the limited purpose of enforcing this agreement.

26

7. The parties recognize and mutually agree that the entry into this settlement agreement

27 shall not represent an admission by any of the parties in this action with respect to any of the

28 substantive allegations made in this action.

Settlement Agreement

5

Case No.: 2002049636

1

8. The parties recognize and mutually agree that it is the express intention of the parties

2 that this settlement agreement does not include claims, if any, which may arise from or be based

3 upon a breach of any provision of this settlement agreement.

4

9. The parties to this settlement agreement recognize and mutually agree that the terms

5 set forth in this settlement agreement constitute the entire and binding settlement agreement

6 among the parties with respect to the matters discussed herein. The parties further recognize and

7 mutually agree that no other statement or representation, either written or oral, express or

8 implied, has been received or relied upon in this settlement agreement, and that all prior

9 discussions, statements, and negotiations made or which occurred prior to the date of this

10 settlement agreement shall be merged into this settlement agreement.

11

10. The parties to this settlement agreement recognize and mutually agree that the terms set

12 forth in this settlement agreement are the product of the parties’ mutual negotiation and

13 preparation and accordingly shall not be deemed to have been prepared or drafted exclusively by

14 any party. The parties further agree that any court seeking to interpret this settlement agreement

15 should construe it as the product of mutual negotiation and preparation.

16

11. The terms of this settlement agreement are contractual and are not mere recitals.

17

12. The undersigned and their counsel represent that they have the full power and

18 authority to execute this settlement agreement on the parties’ respective behalf and to bind the

19 parties.

20

13. Plaintiffs specifically reserve the right to seek attorneys’ fees and costs on any basis

21 allowed by law. Defendants specifically reserve the right to object to any such request on any

22 basis allowed by law.

23

14. Promptly after the Governor signs a CAHSEE Bill as described in paragraphs 2 and 3

24 above, defendants shall provide notice of the procedure to all district designated test

25 coordinators, SELPA directors, superintendents and high school principals. In addition, CDE

26 shall post information about the procedure on its website. The notice shall describe the

27 procedures that the districts should utilize in making a request that the CAHSEE requirement be

28 excused as to a particular student. In addition, the notice shall state that parents may utilize the

Settlement Agreement

6

Case No.: 2002049636

1 Special Education Complaint process (see tit. 5, Cal. Code Regs., § 4600 et seq.) if any school or
 2 district: (a) fails to provide a student with disabilities an opportunity to take the CAHSEE with
 3 an accommodation or modification in their IEP during their senior year, as set forth in paragraph
 4 1(d); (b) fails to provide the certifications described in paragraphs 1(c) and 1(e), even though the
 5 conditions for such certifications have been satisfied; or (c) fails to submit a request, at the
 6 student’s request (or at the parent’s or legal guardian’s request if the student is a minor), that the
 7 CAHSEE requirement be excused as to a particular student with disabilities, even though the
 8 requirements set forth in paragraph 1(a)-(g) have been satisfied.
 9 //
 10 //
 11 //
 12 //
 13 //
 14 //
 15 //
 16 //
 17 //
 18 //
 19 //
 20 //
 21 //
 22 //
 23 //
 24 //
 25 //
 26 //
 27 //
 28 //


Settlement Agreement

7

Case No.: 2002049636

1

15. This settlement agreement may be signed in counterparts.

2

3

IT IS SO STIPULATED.

4

5

6 Dated 7
8

SIDNEY WOLINSKY
 Disability Rights Advocates
 For: Plaintiffs


9

10 Dated 11 12

Defendant California State Board of
 Education
 Title:


13

14 Dated
15
16
17

Defendants California Department of
 Education and Jack O’Connell,
 Superintendent of Public Education in
 California
 Title:


18 19 Dated 20 21

DOUGLAS M. PRESS
 KARA READ-SPANGLER
 KARIN S. SCHWARTZ
 Deputies Attorney General
 Attorneys for Defendants


22

23 IT IS SO ORDERED
24

25 Dated: ______________________________
26

_________________________________ Judge of the Superior Court

27
20026270.wpd
28

Settlement Agreement

8

Case No.: 2002049636

 
 Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 1 of 42
ADRMOP,CLOSED,E−Filing,PROTO,REFSET−JCS
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:01−cv−01780−CRB

Smiley et al v. California Department of Education et al Assigned to: Hon. Charles R. Breyer Referred to: Magistrate Judge Joseph C. Spero Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 05/08/2001 Date Terminated: 09/08/2003 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ryan Smiley by his guardian ad litem Krista Smiley

represented by Morris Andrew Ratner Lieff,Cabraser,Heimann &Bernstein, LLP Embarcadero Center West 275 Battery Street 30th Floor San Francisco, CA 94111 415−956−1000 Fax: 415−956−1008 Email: mratner@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sidney M. Wolinsky Disability Rights Advocates 2001 Center Street Fourth Floor Berkeley, CA 94704 510−665−8644 Fax: 510−665−8511 Email: general@dralegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan Disability Rights Advocates 449 15th Street Suite 303 Oakland, CA 94612−2821 510/451−8644 Email: aubrejuan@dralegal.org ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser Lieff Cabraser Heimann &Bernstein, LLP Embarcadero Center West 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 (415) 956−1000 Fax: (415) 956−1008 Email: ecabraser@lchb.com ATTORNEY TO BE NOTICED

Eve Hedy Cervantez Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Fax: 415−362−8064 Email: ecervantez@altshulerberzon.com ATTORNEY TO BE NOTICED

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 2 of 42

Joshua Geoffrey Konecky Schneider Wallace Cottrell Brayton Konecky LLP 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 (415) 421−7100 Fax: (415) 421−7105 Email: jkonecky@schneiderwallace.com TERMINATED: 01/18/2002 ATTORNEY TO BE NOTICED

Mary Bondy Reiten Terrell Marshall Daudt &Willie PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103−8869 (206) 816−6603 Fax: (206) 350−3528 Email: mreiten@tmdwlaw.com TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Rhoda Benedetti Benedetti &Associates 1685 Arbutus Drive, Suite A Walnut Creek, CA 94595 925−279−1177 Fax: 925−279−1199 Email: rb@benedetti−law.com ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz Disability Rights Advocates 2001 Center Street 3rd Floor Berkeley, CA 94704 510−665−8644 Fax: 510−665−8511 Email: mkasnitz@dralegal.org ATTORNEY TO BE NOTICED

Plaintiff
Jennifer Lyons by her guardian ad litem Susan Lyons, on behalf of themselves and all others similarly situated

represented by Morris Andrew Ratner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sidney M. Wolinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Joshua Geoffrey Konecky

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 3 of 42

(See above for address) TERMINATED: 01/18/2002 ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Rhoda Benedetti (See above for address) ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Learning Disabilities Association of California

represented by Morris Andrew Ratner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sidney M. Wolinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Joshua Geoffrey Konecky (See above for address) TERMINATED: 01/18/2002 ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Rhoda Benedetti (See above for address) ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Juleus Chapman by his guardian ad litem Monique Chapman

represented by Alison M. Aubrejuan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 4 of 42

Morris Andrew Ratner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sidney M. Wolinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Joshua Geoffrey Konecky (See above for address) TERMINATED: 01/18/2002 ATTORNEY TO BE NOTICED

Rhoda Benedetti (See above for address) ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Melody Arevalo by her guardian ad litem Justin Pierce

represented by Eve Hedy Cervantez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Morris Andrew Ratner (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 5 of 42

Sidney M. Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Karen Bruno by his guardian ad litem Kyle Stofle

represented by Eve Hedy Cervantez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Morris Andrew Ratner (See above for address) ATTORNEY TO BE NOTICED

Sidney M. Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ann McDonald−Cacho by her guardian ad litem Philip Cacho

represented by Eve Hedy Cervantez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Morris Andrew Ratner (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 6 of 42

Sidney M. Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Louise Dutka by his guardian ad litem Aston Thadani

represented by Eve Hedy Cervantez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Morris Andrew Ratner (See above for address) ATTORNEY TO BE NOTICED

Sidney M. Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jacqueline Harley by her guardian ad litem Ashley Harley

represented by Eve Hedy Cervantez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Wendy Kasnitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Aubrejuan (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Joan Cabraser (See above for address) ATTORNEY TO BE NOTICED

Mary Bondy Reiten (See above for address) TERMINATED: 07/18/2005 ATTORNEY TO BE NOTICED

Morris Andrew Ratner (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 7 of 42
Sidney M. Wolinsky (See above for address) ATTORNEY TO BE NOTICED

V. Defendant California Department of Education
Defendant Delaine Eastin Superintendent of Public Education TERMINATED: 02/18/2003

represented by Teresa Lynne Stinson CA Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−703−5549 Email: Teresa.Stinson@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Bisson Holloway California Department of Education Legal Division 1430 N Street, Room 5319 Sacramento, CA 95814 916−319−0860 Fax: 916−319−0155 Email: AHollowa@cde.ca.gov ATTORNEY TO BE NOTICED
Douglas Michael Press CA Attorney General's Office 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102−7004 415/703−5540 Fax: 415−703−5480 Email: Douglas.Press@doj.ca.gov ATTORNEY TO BE NOTICED
Suzanne B. Giorgi CA Attorney General's Office 1300 "I" Street, Suite 125 Sacramento, CA 95814 916/324−5403 Email: suzanne.giorgi@doj.ca.gov ATTORNEY TO BE NOTICED
Michael Hersher California Department of Education 721 Capitol Mall, Room 552 P.O. Box 944272 Sacramento, CA 94244−2720 (916) 657−2453 Email: mhersher@cde.ca.gov ATTORNEY TO BE NOTICED
represented by Teresa Lynne Stinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Bisson Holloway (See above for address) ATTORNEY TO BE NOTICED
Douglas Michael Press

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 8 of 42

(See above for address) ATTORNEY TO BE NOTICED

Suzanne B. Giorgi (See above for address) ATTORNEY TO BE NOTICED

Michael Hersher (See above for address) ATTORNEY TO BE NOTICED

Defendant
Fremont Unified School District TERMINATED: 04/03/2002

represented by James R. Hawley Hoge Fenton Jones &Appel 60 South Market Street Suite 1400 San Jose, CA 95113−2396 408−287−9501 Fax: 408−287−2583 Email: jrh@hogefenton.com ATTORNEY TO BE NOTICED

Defendant
Sharon Jones Superintendent of Fremont Unified School District TERMINATED: 04/03/2002

Defendant California State Board of Education

represented by Amy Bisson Holloway (See above for address) ATTORNEY TO BE NOTICED

Douglas Michael Press (See above for address) ATTORNEY TO BE NOTICED

Suzanne B. Giorgi (See above for address) ATTORNEY TO BE NOTICED

Teresa Lynne Stinson (See above for address) ATTORNEY TO BE NOTICED

Defendant Jack O'Connell

represented by Douglas Michael Press (See above for address) ATTORNEY TO BE NOTICED

Teresa Lynne Stinson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/08/2001

# Docket Text
1 COMPLAINT Summons issued against California Department of Education, Delaine Eastin, Fremont Unified School District, Sharon Jones (Filing fee $150 receipt number 4403544). Filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (mcl, ) Additional attachment(s) added on 5/10/2001 (mcl, ). Modified on 5/10/2001 (mcl, ). (Entered:

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 9 of 42

05/08/2001
05/08/2001 05/08/2001 05/08/2001 05/08/2001 05/08/2001 05/08/2001 05/08/2001 05/08/2001 05/23/2001
05/24/2001
06/01/2001 06/01/2001 07/06/2001
07/19/2001
08/08/2001 08/08/2001 09/07/2001 09/13/2001 09/18/2001
09/18/2001

05/10/2001)
2 ADR SCHEDULING ORDER: Case Management Statement due by 9/17/2001. Case Management Conference set for 9/24/2001 at 04:00 PM. (mcl, ) (Entered: 05/10/2001)
CASE DESIGNATED for Electronic Filing. (mcl, ) (Entered: 05/10/2001)
Summons Issued as to California Department of Education (mcl, ) (Entered: 05/10/2001)
Summons Issued as to Delaine Eastin (mcl, ) (Entered: 05/10/2001)
Summons Issued as to Fremont Unified School District (mcl, ) (Entered: 05/10/2001)
Summons Issued as to Sharon Jones (mcl, ) (Entered: 05/10/2001)
Received Order Petition for appointment of guardina ad litem for Juleus Chapman by Juleus Chapman. (mcl, ) (Entered: 05/10/2001)
Received Order Petition for appointment of guardian ad litem for Ryan Smiley by Ryan Smiley. (mcl, ) (Entered: 05/10/2001)
Received Order Petition for appointment of guardian ad litem for Jennifer Lyons by Jennifer Lyons. (mcl, ) (Entered: 05/10/2001)
3 ORDER OF RECUSAL Signed by Magistrate Judge Bernard Zimmerman on 5/23/01.(bzsec) Additional attachment(s) added on 5/23/2001(bzsec). (Entered: 05/23/2001)
4 ORDER REASSIGNING CASE. Case reassigned to Judge Charles R. Breyer for all further proceedings. Judge Bernard Zimmerman no longer assigned to case. Signed by Executive Committee on 5/24/01. (as, ) (Entered: 05/24/2001)
5 CLERK'S NOTICE Case Management Conference set for 9/28/2001 at 08:30 AM. (mf, ) (Entered: 06/01/2001)
6 CERTIFICATE of Clerk Certificate of Service. (mf, ) (Entered: 06/01/2001)
7 STIPULATION for extension of time for state defendants to file responsive pleading by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Konecky, Joshua) (Entered: 07/06/2001)
8 STIPULATION CONTINUING DATE FOR DEFENDANT FREMONT UNIFIED SCHOOL DISTRICT TO FILE RESPONSIVE PLEADING TO PLAINTIFFS' COMPLAINT by Fremont Unified School District. (Hawley, James) (Entered: 07/19/2001)
9 ANSWER to Complaint by Fremont Unified School District. (Hawley, James) (Entered: 08/08/2001)
10 ANSWER to Complaint by California Department of Education, Delaine Eastin. (Hersher, Michael) (Entered: 08/08/2001)
Received Stipulation and Order selecting ADR process by plaintiff, defendant (mcl, ) (Entered: 09/17/2001)
13 STIPULATION and Order by Judge Breyer : selecting Mediation by plaintiff, defendants. (mcl, ) (Entered: 09/19/2001)
11 NOTICE REGARDING CONTINUANCE OF CASE MANAGEMENT CONFERENCE by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Konecky, Joshua) (Entered: 09/18/2001)
12 NOTICE OF ORIGINAL REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Konecky, Joshua) (Entered: 09/18/2001)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 10 of 42

09/18/2001 09/20/2001 09/24/2001 09/25/2001
10/05/2001 11/08/2001 11/08/2001
11/09/2001 11/09/2001 11/09/2001 11/09/2001 11/09/2001
11/09/2001 11/09/2001

Set/Reset Hearings: Case Management Conference continued to 10/5/2001 at 08:30 AM. (mcl, ) (Entered: 09/21/2001)
14 Minute Entry: Settlement Conference scheduled for 11/27/2001, at 9:30 a.m., before Magistrate Judge Spero. (jcssec) Additional attachment(s) added on 9/20/2001 (jcssec, ). (Entered: 09/20/2001)
15 JOINT CASE MANAGEMENT STATEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Konecky, Joshua) (Entered: 09/24/2001)
16 NOTICE OF SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER. Settlement Conference set for 11/27/2001, at 9:30 a.m. Lead trial counsel and all parties are ordered to meet and confer, in person, regarding settlement on or before 11/09/2001. Settlement Conference Statements are to be lodged no later than 11/20/2001. Signed by Magistrate Judge Joseph C. Spero on 09/25/2001. (jcssec) (Entered: 09/25/2001)
17 Minute Entry: Initial Case Management Conference held on 10/5/2001 before Judge Charles R. Breyer. Further Case Management Conference set for 12/7/2001 08:30 AM. before Judge Charles R. Breyer.() (mf, ) (Entered: 10/05/2001)
18 MOTION for Summary Judgment filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 12/14/2001 10:00 AM. (Konecky, Joshua) (Entered: 11/08/2001)
19 DECLARATION in Support re 18 Plaintiffs' Motion for Summary Adjudication filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit C2# 5 Exhibit C3# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J1# 13 Exhibit J2# 14 Exhibit K1# 15 Exhibit K2# 16 Exhibit L# 17 Exhibit M# 18 Exhibit N)(Related document(s) 18 ) (Konecky, Joshua) (Entered: 11/08/2001)
20 DECLARATION in Support re 18 Plaintiffs' Motion for Summary Adjudication filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 18 ) (Konecky, Joshua) (Entered: 11/09/2001)
21 DECLARATION in Support re 18 Plaintiffs' Motion for Summary Adjudication filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 18 ) (Konecky, Joshua) (Entered: 11/09/2001)
22 Proposed Order Granting Plaintiffs' Motion for Summary Adjudication by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Konecky, Joshua) (Entered: 11/09/2001)
23 MOTION to Certify Class filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 12/14/2001 10:00 AM. (Konecky, Joshua) (Entered: 11/09/2001)
24 DECLARATION in Support re 23 Plaintiffs' Motion for Class Certification filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Related document(s) 23 ) (Konecky, Joshua) (Entered: 11/09/2001)
25 DECLARATION in Support re 23 Plaintiffs' Motion for Class Certification filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 23 ) (Konecky, Joshua) (Entered: 11/09/2001)
26 DECLARATION in Support re 23 Plaintiffs' Motion for Class Certification filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 23 ) (Konecky, Joshua) (Entered: 11/09/2001)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 11 of 42

11/09/2001
11/09/2001
11/09/2001
11/09/2001 11/09/2001
11/20/2001 11/20/2001 11/20/2001 11/20/2001 11/26/2001 11/29/2001 11/29/2001 11/29/2001 11/29/2001 11/30/2001 12/03/2001 12/04/2001 12/04/2001

27 DECLARATION in Support re 23 Plaintiffs' Motion for Class Certification filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 23 ) (Konecky, Joshua) (Entered: 11/09/2001)
28 DECLARATION in Support re 23 Plaintiffs' Motion for Class Certification filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 23 ) (Konecky, Joshua) (Entered: 11/09/2001)
29 DECLARATION in Support re 23 Plaintiffs' Motion for Class Certification filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 23 ) (Konecky, Joshua) (Entered: 11/09/2001)
30 Proposed Order Granting Plaintiffs' Motion for Class Certification by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Konecky, Joshua) (Entered: 11/09/2001)
31 DECLARATION in Support re 23 , 18 Plaintiffs' Motions for Class Certification and Summary Adjudication filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 23 , 18 ) (Konecky, Joshua) (Entered: 11/09/2001)
32 Proposed Order [amended] Granting Plaintiffs' Motion for Class Certification by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Konecky, Joshua) (Entered: 11/20/2001)
33 Ex Parte Applicaton re 23 , 18 Re Motion to Extend Hearing Date on Plaintiffs' Motions filed by California Department of Education, Delaine Eastin. Motion Hearing set for 12/14/2001 10:00 AM. (Hersher, Michael) (Entered: 11/20/2001)
34 DECLARATION in Support re 33 Defendants' Ex Parte Motion to Extend Hearing Date on Plaintiffs' Motions filed by California Department of Education, Delaine Eastin. (Related document(s) 33 ) (Hersher, Michael) (Entered: 11/20/2001)
35 Proposed Order Re Defendants' Motion to Extend Hearing Date on Plaintiff's Motions by California Department of Education, Delaine Eastin. (Hersher, Michael) (Entered: 11/20/2001)
36 NOTICE of Association of Counsel by California Department of Education, Delaine Eastin. (Hersher, Michael) (Entered: 11/26/2001)
37 ORDER GRANTING EXTENSION ON HEARING DATE ON PLAINTIFF'S MOTION TO 01/11/2002 re 23 , 18 , 33 . Signed by Judge Charles R. Breyer on November 29, 2001. (mf, ) (Entered: 11/29/2001)
38 Minute Entry: Settlement Conference held on 11/27/2001 before Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 2/12/2002, at 9:30 AM. (jcssec) (Entered: 11/29/2001)
39 NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE. Further Settlement Conference set for 2/12/2002, at 9:30 a.m. Signed by Magistrate Judge Joseph C. Spero on 11/29/01. (jcssec) (Entered: 11/29/2001)
Set/Reset Deadlines as to Motion 23 , 18 . Motion Hearing set for 1/11/2002 10:00 AM. (mcl, ) (Entered: 12/03/2001)
40 NOTICE of Appearance by Juleus Chapman. (Reiten, Mary) (Entered: 11/30/2001)
41 NOTICE of Appearance by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/03/2001)
42 JOINT CASE MANAGEMENT STATEMENT (Updated) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/04/2001)
43 STIPULATION for Plaintiffs to File First Amended Complaint by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/04/2001)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 12 of 42

12/04/2001 12/07/2001 12/10/2001
12/10/2001 12/13/2001 12/13/2001 12/13/2001 12/17/2001 12/19/2001 12/19/2001
12/19/2001 12/19/2001
12/19/2001 12/19/2001

44 AMENDED COMPLAINT against all defendants. Filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/04/2001)
45 Minute Entry: Further Case Management Conference held on 12/7/2001 before Charles R. Breyer. Motions hearing date scheduled for 01/11/2002 at 10:00 a.m. before Charles R. Breyer. () (mf, ) (Entered: 12/07/2001)
46 AMENDED COMPLAINT Demand for Jury Trial against California State Board of Education, California Department of Education, Delaine Eastin, Fremont Unified School District, Sharon Jones. Filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/10/2001)
47 WAIVER OF SERVICE Returned Executed, by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. California State Board of Education waiver sent on 12/10/2001, answer due 02/08/2002 (Kasnitz, Melissa) (Entered: 12/10/2001)
48 MOTION for Leave to File Excess Pages Plaintiffs' Administrative Request for Leave to File Brief in Excess of Page Limits on Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/13/2001)
49 Proposed Order Granting Plaintiffs' Request to Exceed Page Limitations on Motion for Preliminary Injunction by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/13/2001)
50 CERTIFICATE OF SERVICE by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley (Kasnitz, Melissa) (Entered: 12/13/2001)
51 ORDER GRANTING PLAINTIFFS' REQUEST TO EXCEED PAGE LIMITATIONS ON MOTION FOR PRELIMINARY INJUNCTION. Signed by Judge Charles R. Breyer on December 17, 2001. (mf, ) (Entered: 12/17/2001)
52 First MOTION to Compel COMPLIANCE WITH DEPOSITION NOTICES AND SUBPOENAS filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/25/2002 10:00 AM. (Kasnitz, Melissa) (Entered: 12/19/2001)
53 DECLARATION in Support re 52 of Plaintiffs' Motion to Compel Compliance with Deposition Notices and Subpoenas filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L)(Related document(s) 52 ) (Kasnitz, Melissa) (Entered: 12/19/2001)
54 Proposed Order Granting Plaintiffs' Motion to Compel Compliance with Deposition Notices and Subpoenas by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/19/2001)
55 First Ex Parte Applicaton re 52 To Shorten Time on Plaintiffs' Motion to Compel Compliance with Deposition Notices and Subpoenas filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/25/2002 10:00 AM. (Kasnitz, Melissa) (Entered: 12/19/2001)
56 DECLARATION in Support re 55 Plaintiffs' Ex Parte Motion to Shorten time on Motion to Compel Compliance with Deposition Notices and Subpoenas filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 55 ) (Kasnitz, Melissa) (Entered: 12/19/2001)
57 Proposed Order Granting Plaintiffs' Ex Parte Motion to Shorten Time on Plaintiffs' Motion to Compel Compliance with Deposition Notices and Subpoenas by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 13 of 42

12/19/2001 12/21/2001 12/21/2001 12/21/2001 12/21/2001
12/21/2001
12/21/2001 12/21/2001 12/21/2001 12/21/2001 12/21/2001 12/24/2001 12/27/2001 12/28/2001 12/28/2001 12/28/2001

Smiley. (Kasnitz, Melissa) (Entered: 12/19/2001)
58 NOTICE re 52 , 55 Request for Assignment to a Magistrate Judge for discovery by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/19/2001)
59 ORDER re 52 , 55 , ORDER REFERRING CASE to Magistrate Judge Spero for Discovery purposes. Signed by Judge Charles R. Breyer on December 21, 2001. (mf, ) (Entered: 12/21/2001)
CASE REFERRED to Magistrate Judge Joseph C. Spero for discovery. (mf, ) (Entered: 12/21/2001)
60 Memorandum in Opposition re 23 Defendants' Opposition to Plaintiffs' Motion for Class Certification filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 12/21/2001)
61 DECLARATION in Opposition Declaration of Allan Lloyd−Jones in Support of Defendants' Opposition to Plaintiffs' Motion for Class Certification filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Stinson, Teresa) (Entered: 12/21/2001)
62 DECLARATION in Opposition Declaration of Michael E. Hersher in Support of Defendants' Opposition to Plaintiffs' Motion for Class Certification filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Stinson, Teresa) (Entered: 12/21/2001)
63 DECLARATION in Opposition of Pamela McCabe in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Stinson, Teresa) (Entered: 12/21/2001)
64 DECLARATION in Opposition of S.E.Phillips in Support of Defendants' Opposition to Motion for Partial Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Vita S.E. Phillips)(Stinson, Teresa) (Entered: 12/21/2001)
65 ORDER REFERRING CASE to Magistrate Judge Chen for Discovery purposes.. Signed by Judge Charles R. Breyer on December 21, 2001. (mf, ) (Entered: 12/21/2001)
CASE REFERRED to Magistrate Judge Edward M. Chen for Discovery. (mf, ) (Entered: 12/21/2001)
66 MOTION FOR PARTIAL SUMMARY JUDGMENT as to Memorandum of Points and Authorities in Opposition to Motion for Partial Summary Judgment filed by California Department of Education, Delaine Eastin. Motion Hearing set for 1/11/2002 10:00 AM. (Stinson, Teresa) (Entered: 12/21/2001)
67 NOTICE Defendants' Notice of Errata Re: Citation References Contained in Defendants' Opposition to Motion for Partial Summary Judgment by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 12/24/2001)
68 Memorandum in Opposition re 55 , 52 Defendants' Opposition to Plaintiffs' Motion to Compel filed by California Department of Education, California State Board of Education. (Stinson, Teresa) (Entered: 12/27/2001)
69 Reply Memorandum to Motion re 23 Class Certification filed by Juleus Chapman. (Reiten, Mary) (Entered: 12/28/2001)
70 DECLARATION in Support re 69 Class Certification filed by Juleus Chapman. (Attachments: # 1 Exhibit A)(Related document(s) 69 ) (Reiten, Mary) (Entered: 12/28/2001)
71 DECLARATION in Support re 69 Class Certification filed by Juleus Chapman. (Related document(s) 69 ) (Reiten, Mary) (Entered: 12/28/2001)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 14 of 42

12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001
12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001

72 DECLARATION in Support re 69 Class Certification filed by Juleus Chapman. (Related document(s) 69 ) (Reiten, Mary) (Entered: 12/28/2001)
73 MOTION for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 2/1/2002 10:00 AM. (Kasnitz, Melissa) (Entered: 12/28/2001)
74 Proposed Order Granting Plaintiffs' Motion for Preliminary Injunction by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
75 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Melody Arevalo) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
76 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Jo Rupert Behm) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
77 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Karen Bruno) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
78 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Monique Chapman) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
79 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Maureen Culpepper) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
80 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Kurt F. Geisinger, Ph.D.) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kasnitz, Melissa) (Entered: 12/28/2001)
81 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Melissa W. Kasnitz) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N)(Kasnitz, Melissa) (Entered: 12/28/2001)
82 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Marilyn Lovelace−Grant) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
83 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Susan Lyons) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
84 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Nancy Meyers) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
85 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Nancy Powers) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
86 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Joe Reid) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
87 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Dr. Kay Runyan) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 12/28/2001)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 15 of 42

12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 12/28/2001 01/03/2002 01/04/2002 01/04/2002 01/04/2002
01/04/2002

88 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Krista Smiley) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
89 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Nancy Stewart) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
90 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Laurie Susbilla) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
91 DECLARATION in Support of Plaintiffs' Motion for Preliminary Injunction (Dr. Susan Vogel) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 12/28/2001)
92 Reply Memorandum to Motion re 18 Plaintiffs' Motion for Summary Adjudication filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
93 DECLARATION in Support of Plaintiffs' Motion for Summary Adjudication (Jo Rupert Behm) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
94 DECLARATION in Support of Plaintiffs' Motion for Summary Adjudication (Monique Chapman) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
95 DECLARATION in Support of Plaintiffs' Motion for Summary Adjudication (Kurt F. Geisinger) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kasnitz, Melissa) (Entered: 12/28/2001)
96 DECLARATION in Support of Plaintiffs' Motion for Summary Adjudication (Dr. Kay Runyan) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 12/28/2001)
97 DECLARATION in Support of Plaintiffs' Motion for Summary Adjudication (Krista Smiley) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/28/2001)
98 DECLARATION in Support of Plaintiffs' Motion for Summary Adjudication (Dr. Susan Vogel) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 12/28/2001)
99 Supplemental Briefing In Opposition To Motion To Compel filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) Modified on 1/14/2002 (mcl, ). (Entered: 01/03/2002)
100 ORDER − Notice of Reference and Order re: Discovery Procedures. Signed by Magistrate Judge Edward M. Chen on 01/04/02. (bug) (Entered: 01/04/2002)
101 Ex Parte Applicaton To Continue the Hearing and Briefing Dates for Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/04/2002)
102 DECLARATION in Support re 101 Defendants' Ex Parte Application to Continue the Hearing and Briefing Dates for Plaintiffs Motion for Preliminary Injunction ( Teresa Stinson) filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit December 14, 2001 Correspondence from James Humes to Melissa Kasnitz)(Related document(s) 101 ) (Stinson, Teresa) (Entered: 01/04/2002)
103 Proposed Order Continuing the Hearing and Briefing Dates for Plaintiffs' Motion for Preliminary Injunction by California Department of Education, California State

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 16 of 42

01/04/2002 01/04/2002 01/04/2002 01/08/2002 01/08/2002 01/08/2002
01/08/2002 01/09/2002 01/09/2002
01/09/2002
01/10/2002 01/11/2002

Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/04/2002)
104 ORDER GRANTING PLAINTIFFS' MOTION FOR AN ORDER SHORTENING TIME AND GRANTING PLAINTIFF'S MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENAS by Magistrate Judge Edward M. Chen granting 52 Motion to Compel, granting 55 Ex Parte Application 52 , 55 (emcsec) (Entered: 01/04/2002)
105 AFFIDAVIT in Opposition re 101 filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/04/2002)
106 DECLARATION in Opposition to Defendants' Ex Parte Motion to Continue the Hearing and Briefing Dates for Plaintiffs' Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/04/2002)
107 ORDER re 101 Motion Hearing set for 2/22/2002 10:00 AM.. Signed by Judge Charles R. Breyer on January 8, 2002. (mf, ) (Entered: 01/08/2002)
108 DECLARATION in Opposition Decl. of D. Eastin In Support of Defendants' Objections to the Order of the Magistrate Compelling The Depositions of Superintendent of Public Instruction D. Eastin and of SBE Member Joseph Nunez filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/08/2002)
109 DECLARATION in Opposition Decl of T. Stinson In Support of Defendants' Objections to the Order of the Magistrate Compelling the Depositions of Superintendent of Public Instruction D. Eastin and of SBE Member J. Nunez filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Plaintiff 2nd Request for Production of Documents, etc.# 2 Exhibit Letter to Melissa Kasnitz, etc.# 3 Exhibit Letter to Sid Wolinsky, etc.# 4 Exhibit Oath, etc.)(Stinson, Teresa) (Entered: 01/08/2002)
Set/Reset Deadlines as to Motion 73 . Motion Hearing set for 2/22/2002 10:00 AM. (mcl, ) (Entered: 01/14/2002)
110 Notice of Objections and Objections of Defendants to the Order of the Magistrate Compelling the Depositions of Superintendent of Public Instruction Delaine Eastin and SBE Member Joseph Nunez; Request to Expand Record filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) Modified on 1/14/2002 (mcl, ). (Entered: 01/09/2002)
111 DECLARATION in Support re 110 Decl of T. Stinson in Support of Defendants' Notice of Objections and Objections of Defendants to the Order of the Magistrate Compelling the Depositions of Superintendent of Public Instruction Delaine Eastin and SBE Member Joseph Nunez filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Plaintiff J. Chapman's 2nd Request for Prod of Docs, etc# 2 Exhibit Letter from T. Stinson dated 12/13/01# 3 Exhibit Letter from J. Humes dated 12/18/01 to Wolinsky &Letter from Wolinsky to J. Humes dated 12/19/01# 4 Exhibit Record of Nunez Oath)(Related document(s) 110 ) (Stinson, Teresa) (Entered: 01/09/2002)
112 DECLARATION in Support re 110 Decl. of Delaine Eastin In Support of Defendants' Objections to the Order of the Magistrate Compelling the Depositions of Superintendent of Public Instruction Delaine Eastin and of SBE Member Joseph Nunez filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 110 ) (Stinson, Teresa) (Entered: 01/09/2002)
113 NOTICE of Association of Counsel by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/10/2002)
114 Minute Entry: Motion Hearing re 23 , 18 held on 1/11/2002 before Charles R. Breyer. Matters taken under submission.(Court Reporter Kathy Wyatt) (mf, ) (Entered: 01/11/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 17 of 42

01/11/2002 01/15/2002 01/15/2002 01/15/2002 01/16/2002 01/16/2002 01/18/2002 01/22/2002 01/22/2002 01/22/2002 01/23/2002 01/23/2002
01/23/2002 01/23/2002 01/23/2002 01/23/2002

115 ORDER by Judge Charles R. Breyer denying 110 Motion for Discovery and affirming Magistrate Judge Chen's order compelling depositions. (crblc2, ) (Entered: 01/11/2002)
116 MOTION for Leave to File Excess Pages on Reply in Support of Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/15/2002)
117 Proposed Order Granting Plaintiffs' Request to Exceed Page Limitations on Reply in Support of Motion for Preliminary Injunction by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/15/2002)
118 DECLARATION in Support re 73 (Amended) filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 73 ) (Kasnitz, Melissa) (Entered: 01/15/2002)
119 ORDER re 116 . Signed by Judge Charles R. Breyer on January 16, 2002. (mf, ) (Entered: 01/16/2002)
120 ORDER by Judge Charles R. Breyer granting 23 Motion to Certify Class (crblc2, ) (Entered: 01/16/2002)
121 NOTICE of Withdrawal by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/18/2002)
122 Ex Parte Applicaton re 73 to Advance by Two Days the Briefing Schedule on Plaintiffs' Motion for a Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/22/2002)
123 DECLARATION in Support re 122 filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 122 ) (Kasnitz, Melissa) (Entered: 01/22/2002)
124 Proposed Order Granting Plaintiffs' Ex Parte Motion to Advance Briefing Schedule by Two Days on Plaintiffs' Preliminary Injunction Motion by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/22/2002)
125 Memorandum in Opposition re 122 Defendants' Opposition to Plaintiffs' Ex Parte Motion to Advance the Briefing Schedule Re Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/23/2002)
126 DECLARATION in Opposition re 125 Declaration of Teresa L. Stinson In Opposition to Plaintiffs' Motion to Advance the Briefing Schedule on Plaintiffs' Motion for Preliminary Injunction filed by California State Board of Education, Delaine Eastin. (Related document(s) 125 ) (Stinson, Teresa) (Entered: 01/23/2002)
127 Proposed Order Denying Plaintiffs' Request to Advance the Briefing Dates for Plaintiffs' Motion for Preliminary Injunction by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/23/2002)
128 MOTION to Compel Answers to Interrogatories, Production of Documents and Requests for Admissions; Memorandum of Points and Authorities in Support Thereof filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/23/2002)
129 Proposed Order Granting Plaintiffs' Motion to Compel Answers to Interrogatories, Production of Documents, and Requests for Admissions by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/23/2002)
130 DECLARATION in Support re 128 filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 18 of 42

01/24/2002 01/24/2002 01/24/2002 01/24/2002
01/25/2002 01/28/2002 01/29/2002 01/29/2002 01/30/2002 02/01/2002 02/01/2002 02/01/2002

A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M)(Related document(s) 128 ) (Kasnitz, Melissa) (Entered: 01/23/2002)
131 ORDER DENYING PLAINTIFFS' REQUEST TO ADVANCE THE BRIEFING DATES FOR PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION re 122 . Signed by Judge Charles R. Breyer on January 24, 2002. (mf, ) (Entered: 01/24/2002)
132 Ex Parte Applicaton re 128 to Shorten Time on Motion to Compel Answers to Interrogatories, Production of Documents and Requests for Admissions filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/24/2002)
133 Proposed Order Granting Plaintiffs' Ex Parte Motion to Shorten Time on Plaintiffs' Motion to Compel Answers to Interrogatories, Production of Documents, and Requests for Admissions by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/24/2002)
134 Memorandum in Opposition re 132 , 128 Defendants' Opposition to Plaintiffs' Application to Shorten Time For Hearing On Motion to Compel and Request to Strike Plaintiffs' Motion to Compel filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Lttr to MKasnitz dtd 012202 from TStinson# 2 Exhibit Lttr/Fx to MKasnitz dtd 012302 from DPress# 3 Exhibit Lttr to MKasnitz dtd 012302 from DPress# 4 Exhibit Lttr/Fx to MKasnitz dtd 012302 from DPress# 5 Exhibit Lttr to SWolinsky dtd 011802 from TStinson &Lttr to MKasnitz dtd 012302 from TStinson# 6 Exhibit Lttr to TStinson dtd 012202 from MKasnitz)(Stinson, Teresa) (Entered: 01/24/2002)
135 DECLARATION in Support re 132 Declaration of Douglas M. Press in Support of Defendants' Opposition to Plaintiffs' Application for an Order Shortening Time on Motion to Compel filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 132 ) (Press, Douglas) (Entered: 01/25/2002)
136 ORDER GRANTING PLAINTIFFS' MOTION FOR AN ORDER SHORTENING TIME (NO. 132) AND DEEMING FILED PLAINTIFFS' MOTION TO COMPEL (NO. 128) by Magistrate Judge Edward M. Chen granting 128 Motion to Compel (emcsec) (Entered: 01/28/2002)
137 Memorandum in Opposition re 132 Motion to Compel filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Fax to DPress from DRA# 2 Exhibit Defedants' Response to First INT)(Press, Douglas) (Entered: 01/29/2002)
140 TRANSCRIPT for dates 1/11/2002 C/R : Katherine Pope Wyatt. (mcl, ) (Entered: 02/01/2002)
138 ORDER RE PERSONAL ATTENDANCE AT FURTHER SETTLEMENT CONFERENCE. On behalf of Defendant California Board of Education, Board Member Marion Joseph and Chief Counsel Rae Belisle are ordered to appear in person at the Further Settlement Conference on 2/12/2002, at 9:30 a.m. Signed by Magistrate Judge Joseph C. Spero on 1/30/2002. (jcssec) (Entered: 01/30/2002)
139 CLERK'S NOTICE RESCHEDULING FURTHER SETTLEMENT CONFERENCE. Further Settlement Conference previously set for 2/12/2002 is now rescheduled for 2/8/2002, at 9:30 a.m. (jcssec) (Entered: 02/01/2002)
141 DECLARATION in Opposition Declaration of Alfred Manaster in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
142 DECLARATION in Opposition Declaration of Paul L. Williams in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 19 of 42

02/01/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002
02/01/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002

143 DECLARATION in Opposition Declaration of Ruth Ann McKenna in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
144 DECLARATION in Opposition Declaration of Louisa C. Moats in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
145 DECLARATION in Opposition Declaration of Mike McCoy in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
146 DECLARATION in Opposition Declaration of Deborah Franklin in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Stinson, Teresa) (Entered: 02/01/2002)
147 DECLARATION in Opposition Declaration of Phil Spears in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F1# 7 Exhibit F2# 8 Exhibit F3# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I)(Stinson, Teresa) (Entered: 02/01/2002)
148 DECLARATION in Opposition Declaration of William A. Mehrens in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit I, II, III)(Stinson, Teresa) (Entered: 02/01/2002)
149 DECLARATION in Opposition Declaration of Alice Parker in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
150 DECLARATION in Opposition Declaration of Angela M. Hawkins in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
151 DECLARATION in Opposition Declaration of Niels T. Michelsen in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
152 DECLARATION in Opposition Declaration of Jo Anne Matney in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
153 DECLARATION in Opposition Declaration of Douglas Carnine in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
154 DECLARATION in Opposition Declaration of Scott Hill in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
155 DECLARATION in Opposition Declaration of S.E. Phillips in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 20 of 42

02/01/2002 02/01/2002 02/04/2002 02/04/2002 02/04/2002 02/04/2002 02/05/2002 02/05/2002 02/05/2002 02/06/2002 02/07/2002 02/07/2002
02/07/2002

156 DECLARATION in Opposition Declaration of Joseph K. Torgesen in Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
157 Memorandum in Opposition re 73 Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/01/2002)
158 ORDER directing parties to be prepared to comment on proposed preliminary injunction. . Signed by Judge Charles R. Breyer on February 4, 2002. (crblc2, ) (Entered: 02/04/2002)
159 NOTICE Defendants' Notice of Errata Re: Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/04/2002)
160 Memorandum in Opposition re 73 Defendants' Corrected Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/04/2002)
161 NOTICE Defendants' Notice of Errata Re: Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/04/2002)
162 NOTICE Defendants' Notice of Errata Re: Declarations In Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/05/2002)
163 DECLARATION in Opposition re 73 Declaration of Douglas Carnine In Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 73 ) (Stinson, Teresa) (Entered: 02/05/2002)
164 DECLARATION in Opposition re 73 Declaration of Alfred Manaster In Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 73 ) (Stinson, Teresa) (Entered: 02/05/2002)
165 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL (No. 128). Signed by Magistrate Judge Edward M. Chen on 02/06/02. (bug) (Entered: 02/06/2002)
166 Reply Memorandum to Motion re 73 Plaintiffs' Reply in Support of Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 02/07/2002)
167 DECLARATION in Support re 73 Declaration of Tanya E. Kalivas in Support of Plaintiffs' Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Errata F# 7 Exhibit G# 8 Exhibit I# 9 Exhibit J# 10 Exhibit K# 11 Errata L# 12 Exhibit M# 13 Exhibit N# 14 Errata O# 15 Exhibit P# 16 Exhibit H)(Related document(s) 73 ) (Kasnitz, Melissa) (Entered: 02/07/2002)
168 DECLARATION in Support re 166 Reply Declaration of Dr. Susan Vogel in Support of Plaintiffs' Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 166 ) (Kasnitz, Melissa) (Entered: 02/07/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 21 of 42

02/07/2002 02/07/2002
02/07/2002 02/07/2002 02/07/2002 02/08/2002 02/08/2002
02/08/2002 02/08/2002 02/08/2002 02/11/2002 02/11/2002 02/12/2002 02/15/2002

169 DECLARATION in Support re 166 Declaration of Kurt F. Geisinger, PhD in Support of Plaintiffs' Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 166 ) (Kasnitz, Melissa) (Entered: 02/07/2002)
170 DECLARATION in Support re 166 Reply Declaration of Nancy Stewart in Support of Plaintiffs' Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 166 ) (Kasnitz, Melissa) (Entered: 02/07/2002)
171 DECLARATION in Support re 166 Declaration of Monique Chapman in Support of Plaintiffs' Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 166 ) (Kasnitz, Melissa) (Entered: 02/07/2002)
172 DECLARATION in Support re 166 Declaration of Karen Bruno in Support of Plaintiffs' Motion for Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Errata A)(Related document(s) 166 ) (Kasnitz, Melissa) (Entered: 02/07/2002)
173 Appendix Plaintiffs' Statement of Admitted and Undisputed Facts filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 02/07/2002)
174 Minute Entry: Motion Hearing re 73 held on 2/7/2002 before Charles R. Breyer. Motion taken under submission. Further hearing set for 02/22/02 at 10:00 a.m. (Court Reporter Debra Pas.) (mf, ) (Entered: 02/08/2002)
175 MOTION for Leave to File Excess Pages Defendants' Administrative Request for Leave to File Memorandum of Points and Authorities in Support of Motion to Dismiss in Excess of Page Limitations filed by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 02/08/2002)
176 Proposed Order Granting Defendants' Administrative Request for Leave to File Memorandum of Points and Authorities in Support of Motion to Dismiss in Excess of Page Limitations by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 02/08/2002)
177 NOTICE Defendants' Notice of Motion and Motion to Dismiss by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 02/08/2002)
178 Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss filed by California Department of Education, California State Board of Education, Delaine Eastin. Motion Hearing set for 3/22/2002 10:00 AM. (Press, Douglas) Modified on 2/11/2002 (mcl, ). (Entered: 02/08/2002)
179 ORDER GRANTING DEFENDANTS' ADMINISTRATIVE REQUEST FOR LEAVE TO FILE MEMORANDUM IN EXCESS OF PAGE LIMITATIONS.. Signed by Judge Charles R. Breyer on February 11, 2002. (mf, ) (Entered: 02/11/2002)
180 Minute Entry: Further Settlement Conference held on 2/8/2002 before Magistrate Judge Joseph C. Spero. Case did not settle. Further Settlement Conference set for 4/11/2002, at 9:30 a.m. (jcssec) (Entered: 02/11/2002)
181 NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE. Further Settlement Conference set for 4/11/2002, at 9:30 AM. Updated settlement conferenct statements to be lodged with chambers no later than 3/28/2002. Signed by Magistrate Judge Joseph C. Spero on 2/12/2002. (jcssec) (Entered: 02/12/2002)
182 Appendix Plaintiffs' Proposals Regarding Form of Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 02/15/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 22 of 42

02/15/2002 02/15/2002 02/15/2002 02/15/2002
02/15/2002
02/15/2002 02/21/2002 02/21/2002 02/22/2002 02/22/2002 02/27/2002 02/28/2002 03/15/2002
03/18/2002

183 NOTICE State Defendants' Submission of Proposed Orders Following Hearing On Plaintiffs' Motions for Partial Summary Judgment and For Preliminary Injunction by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/15/2002)
184 Proposed Order [Alternate Proposed] Order by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/15/2002)
185 Proposed Order [First Proposed] Order Denying Motion for Preliminary Injunction and Denying Motion for Partial Summary Judgment by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/15/2002)
186 DECLARATION in Support re 173 Supplemental Declaration of Phil Spears in Opposition to Plaintiffs' Motion for Preliminary Injunction (and In Support of Defendants' Request to Strike and Objections to Plaintiffs' Statement of Admitted and Undisputed Facts) filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Standards &Assessment Update# 2 Exhibit CAHSEE Questions &Answers and Timetable for Spring 2002# 3 Exhibit State Board of Education Qdocument(s) 173 ) (Stinson, Teresa) (Entered: 02/15/2002)
187 DECLARATION in Support re 173 Declaration of T. Stinson in Support of Defendants' Request to Strike and Objections to Plaintiffs' Statement of "Admitted and Undisputed Facts" filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Depo of Delaine Eastin# 2 Exhibit Depo of JBChladek# 3 Exhibit Depo PSpears# 4 Exhibit CA SBE Jan 2002 Agenda, Item #3)(Related document(s) 173 ) (Stinson, Teresa) (Entered: 02/15/2002)
188 Memorandum in Opposition re 73 Defendants' Request to Strike and Objections to Plaintiff's Statement of Allegedly Admitted and Undisputed Facts filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 02/15/2002)
189 ORDER by Judge Charles R. Breyer granting 73 Motion for Preliminary Injunction (crblc2, ) (Entered: 02/21/2002)
Set/Reset Hearings: Status Conference set for 6/7/2002 10:00 AM. (mcl, ) (Entered: 03/01/2002)
190 Minute Entry: Further Case Management Conference held on 2/22/2002 before Charles R. Breyer. (Court Reporter Rosita Flores.) (mf, ) (Entered: 02/22/2002)
191 ORDER by Judge Charles R. Breyer denying 178 Motion to Dismiss for Lack of Jurisdiction (mf, ) (Entered: 02/22/2002)
192 Ex Parte Applicaton Plaintiffs' Administrative Request for Correction of Order Re: Preliminary Injunction filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 02/27/2002)
193 AFFIDAVIT in Opposition re 192 Declaration of Douglas M. Press in Response to Plaintiffs' Administrative Request for Correction of Order Re: Preliminary Injunction filed by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 02/28/2002)
194 STATUS REPORT Defendants' Submission Following Preliminary Injunction Order by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit 1−Notice# 2 Exhibit 2−Correspondence# 3 Exhibit 3−March Agenda Item 7# 4 Exhibit 4−January Agenda Item 5)(Stinson, Teresa) (Entered: 03/15/2002)
195 Defendant's ANSWER to Amended Complaint, ANSWER to Amended Complaint by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 03/18/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 23 of 42

03/19/2002 03/19/2002 03/20/2002
03/20/2002 03/21/2002 03/25/2002 03/25/2002 03/25/2002 03/29/2002 04/01/2002
04/02/2002 04/02/2002 04/02/2002 04/03/2002 04/11/2002 04/11/2002

196 NOTICE OF INTERLOCUTORY APPEAL re 189 by California Department of Education, California State Board of Education, Delaine Eastin. (Filing fee $105 receipt number 02−086900) (Press, Douglas) (Entered: 03/19/2002)
197 NOTICE of UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CIVIL APPEALS DOCKETING STATEMENT by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 03/19/2002)
198 NOTICE OF INTERLOCUTORY APPEAL re 191 by California Department of Education, California State Board of Education, Delaine Eastin. (Filing fee $105 receipt number 3333030) (Attachments: # 1 Civil Cover Sheet United States Court of Appeals for the Ninth Circuit Civil Appeals Docketing Statement for 3−20−02 Notice of Interlocutory Appeal)(Press, Douglas) (Entered: 03/20/2002)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re appeal 196 (mcl, ) (Entered: 03/20/2002)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re appeal 198 (mcl, ) (Entered: 03/21/2002)
199 NOTICE Re: Entry of Order by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 03/25/2002)
200 TRANSCRIPT DESIGNATION for dates 1/11/02, C/R : Katherine Wyatt; 2/7/02, C/R : Debra Pas; 2/22/02, C/R : Rosita Flores by California Department of Education, California State Board of Education, Delaine Eastin. (mcl, ) (Entered: 03/27/2002)
201 ORDER by Mag. Judge Spero (Letter from Melissa W. Kasnitz) granting plaintiffs' request to file settlement conference statement on 4/4/02.Signed by Judge Joseph C. Spero on 3/25/2002. (mcl, ) (Entered: 03/27/2002)
202 STATUS REPORT Plaintiffs' Response to Defendants' Submission re: Preliminary Injunction; Request for Prompt Hearing by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kasnitz, Melissa) (Entered: 03/29/2002)
203 STIPULATION of Dismissal Without Prejudice of Defendants Fremont Unified School Disctrict and Sharon Jones, Superintendent of Fremont Unified School District and [Proposed] Order of Dismissal Without Prejudice by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 04/01/2002)
USCA Case Number re appeal 196 . USCA Case #02−15552 (mcl, ) (Entered: 04/04/2002)
USCA Case Number re appeal 198 . USCA Case #02−15553 (mcl, ) (Entered: 04/04/2002)
205 ORDER of USCA re appeal 198 , 196 The court sua sponte consolidates the appeals. The opening briefs due 5/3/02 ; answering briefs due 5/31/02 (mcl, ) (Entered: 04/04/2002)
204 ORDER granting stipulation (doc #203) for dismissal without prejudice of defendants Fremont Unified School District and Sharon Jones, Superintendent of Fremont Unified School District. Signed by Judge Charles R. Breyer on April 3, 2002. (sp, ) (Entered: 04/03/2002)
206 Letter Brief Plaintiffs' Request for Status Conference Prior to May 7, 2002 Administration of CAHSEE filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kasnitz, Melissa) (Entered: 04/11/2002)
207 NOTICE of Appearance by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 04/11/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 24 of 42

04/12/2002 04/15/2002
04/16/2002 04/17/2002
04/18/2002 05/03/2002 05/03/2002 05/03/2002
05/03/2002 05/03/2002 05/06/2002 05/07/2002 05/07/2002 05/08/2002
05/09/2002 05/10/2002

208 Letter Brief Requesting Status Conference filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kasnitz, Melissa) (Entered: 04/12/2002)
209 Minute Entry: Further Settlement Conference held on 4/11/2002 before Magistrate Judge Joseph C. Spero. Case did not settle. A Further Settlement Conference re the issue of reasonable accommodations and modifications is set for 6/7/2002, immediately following the parties' next status confeence with Judge Breyer. Only the following individuals must attend the Further Settlement Conference with Magistrate Spero: Sid Wolinsky, Melissa Kasnitz, Teresa Stinson, Rae Belisle, and a representative from the California Department of Education. Updated statements due by 6/3/2002. (jcssec) (Entered: 04/15/2002)
210 NOTICE Defendants' Counsel's Notice of Unavailability by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 04/16/2002)
211 NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE RE REASONABLE ACCOMMODATIONS AND MODIFICATIONS. Further Settlement Conference set for 6/7/2002, immediately following further status conference with Judge Breyer. Updated statements due by 6/3/2002. Signed by Magistrate Judge Joseph C. Spero on 04/17/2002. (jcssec) (Entered: 04/17/2002)
212 TRANSCRIPT for dates 2/7/2002 ; C/R : Debra L. Pas. (mcl, ) (Entered: 04/19/2002)
213 TRANSCRIPT for dates 2/22/02, C/R : Rosita Flores. (mcl, ) (Entered: 05/03/2002)
214 CERTIFICATE of Record mailed to USCA, counsel notified. (mcl, ) (Entered: 05/03/2002)
215 STIPULATION FOR DISMISSAL WITHOUT PREJUDICE OF STATE LAW CLAIMS FOR RELIEF (CLAIMS SIX, SEVEN AND NINE OF THE FIRST AMENDED COMPLAINT) by Juleus Chapman. (Fastiff, Eric) Modified on 5/8/2002 (mcl, ). ERRONEOUS DOCKET ENTRY − see below #216. (Entered: 05/03/2002)
216 STIPULATION FOR DISMISSAL WITHOUT PREJUDICE OF STATE LAW CLAIMS FOR RELIEF (CLAIMS SIX, SEVEN AND NINE OF THE FIRST AMENDED COMPLAINT) by Juleus Chapman. (Cervantez, Eve) (Entered: 05/03/2002)
217 Proposed Order OF DISMISSAL WITHOUT PREJUDICE by Juleus Chapman. (Cervantez, Eve) (Entered: 05/03/2002)
218 NOTICE of Association of Counsel by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 05/06/2002)
219 NOTICE of Association of Counsel by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 05/07/2002)
220 ORDER DISMISSING CERTAIN CLAIMS WITHOUT PREJUDICE. Signed by Judge Charles R. Breyer on May 7, 2002. (mf, ) (Entered: 05/07/2002)
221 ORDER of USCA re appeal 198 , 196 Appellants' oral motion for a 14−day extension of time to file the consolidated opening brief is granted. The consolidated opening brief is due not later than 5/17/02 ; the consolidated answering brief due 6/14/02 and the consolidated optional reply brief is due within 14 days of service of the answering brief. (mcl, ) (Entered: 05/08/2002)
223 Receipt from USCA for certificate of record. (mcl, ) (Entered: 05/10/2002)
222 STIPULATION and [proposed] Order Regarding Confidential Information by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 05/10/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 25 of 42

05/15/2002 05/29/2002 06/03/2002 06/03/2002 06/06/2002
06/07/2002 06/10/2002 06/17/2002
07/12/2002 07/12/2002 07/18/2002 07/18/2002 07/18/2002 07/18/2002

224 ORDER RE CONFIDENTIAL INFORMATION. Signed by Judge Charles R. Breyer on May 15, 2002. (mf, ) (Entered: 05/15/2002)
225 JOINT CASE MANAGEMENT STATEMENT (UPDATED JOINT CASE MANAGEMENT CONFERENCE STATEMENT) filed by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 05/29/2002)
Certificate of Record mailed to USCA, counsel notified. (mcl, ) (Entered: 06/03/2002)
226 STATUS REPORT Plaintiffs' Supplemental Status Conference Statement by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kasnitz, Melissa) (Entered: 06/03/2002)
227 JOINT CASE MANAGEMENT STATEMENT STATE DEFENDANTS' SUPPLEMENTAL STATUS CONFERENCE STATEMENT filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Exhibit A through D)(Press, Douglas) (Entered: 06/06/2002)
229 Minute Entry: Status Conference held on 6/7/2002 before Charles R. Breyer. (Court Reporter Diane Skillman.) (be, ) (Entered: 06/12/2002)
228 Minute Entry: A Further Settlement Conference was held on June 7,2002, before Magistrate Judge Joseph C. Spero. The case did not settle. A Further Settlement Conference is set for August 6, 2002, at 11:00 am. Updated Settlement Conference Statements are due in chambers by July 30, 2002. (jcssec) (Entered: 06/10/2002)
230 NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE RE REASONABLE ACCOMMODATIONS AND MODIFICATIONS. Further Settlement Conference set for 8/15/2002 at 11:00 AM. Updated statements shall be lodged with chambers by 8/8/2002. Signed by Magistrate Judge Joseph C. Spero on 6/17/2002. (jcssec) (Entered: 06/17/2002)
231 Appeal TRANSCRIPT DESIGNATION by California Department of Education, California State Board of Education, Delaine Eastin for date 6/7/2002, C/R Diane Skillman re appeal 196 . (mcl, ) (Entered: 07/15/2002)
232 CERTIFICATE OF SERVICE by California Department of Education, California State Board of Education, Delaine Eastin re 231 (mcl, ) (Entered: 07/15/2002)
233 Proposed Order Scheduling Hearing Date on Defendants' Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 07/18/2002)
234 MOTION to Stay State Defendants Notice of Motion and Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 07/18/2002)
235 Ex Parte Applicaton re 234 State Defendants Ex Parte Request to Schedule Hearing Date on Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 07/18/2002)
236 DECLARATION in Support re 234 , 235 Declaration of Douglas Press in Support of State Defendants' Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Response lttr of DPress to MKasnitz dtd 5/24/02 and lttr from MKasnitz dated 5/23/02 to DPress and SGiorgi# 2 Exhibit Lttr of SWolinsky to TStinson dtd 6/12/02; Class Action−Notice of Depositions w/ Attachment A# 3 Exhibit Lttr from TStinson to SWolinsky dtd 7/2/02; Fax to SWolinsky from DPress dtd 7/2/02; Lttrs from SWolinsky to DPress and DPress to SWolinsky dtd 7/2/02# 4 Exhibit Lttr to DPress from SWolinsky dtd 7/11/02; Lttr from DPress to SWolinsky dtd 7/12/02;

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 26 of 42

07/18/2002
07/19/2002 07/24/2002
07/24/2002 07/24/2002 07/24/2002 07/24/2002 07/26/2002 07/26/2002 07/26/2002

Lttr from SWolinsky to DPress dtd 7/15/02)(Related document(s) 234 , 235 ) (Stinson, Teresa) (Entered: 07/18/2002)
237 DECLARATION in Support re 234 , 235 Declaration of Teresa Stinson in Support of State Defendants' Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Class Action, Order Re: Preliminary Injunction w/ Appendix A# 2 Exhibit Lttrs dtd 4/10/02 fr TStinson to MKasnitz; fr MKasnitz to TStinson dtd 4/15/02; fr MKasnitz to TStinson dtd 4/18/02; fr TStinson to MKasnitz dtd 4/18/02# 3 Exhibit Lttrs fr TStinson to MKasnitz dtd 5/7/02; fr MKasnitz to TStinson dtd 5/8/02# 4 Exhibit Tittle 5CCR−Article 3 Accommodations# 5 Exhibit Lttr fr PSpears to Vista Unified Sch Dist dtd 1/8/02; Accommodations Response Form; lttr fr PSpears to Dr. SGaynon dtd 2/1/02− Accommodations Response Form# 6 Exhibit Declarations: Dr. Kay Runyan, Dr. Susan Vogel in Support of Plaintiffs' Motion for Summary Adjudication, Decl of JRupert Behm in Support of Plaintiffs' Motion for Class Certification# 7 Exhibit Lttr from ECervantes to TStinson dtd 7/17/02)(Related document(s) 234 , 235 ) (Stinson, Teresa) (Entered: 07/18/2002)
238 ORDER by Judge Magistrate Judge Edward M. Chen granting Defendants' ex parte application to shorten time 235 and setting hearing date and briefing schedule on Defendants' Motion to Stay Discovery 234 (emclc1) (Entered: 07/19/2002)
239 Memorandum in Opposition re 234 Plaintiffs' Opposition to Defendants' Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal filed by Juleus Chapman. (Attachments: # 1 Signature Page (Declarations/Stipulations) Wolinsky Dec.# 2 Exhibit A to Wolinsky Dec.# 3 Exhibit B to Wolinsky Dec.# 4 Exhibit C to Wolinsky Dec.# 5 Exhibit D to Wolinsky Dec.# 6 Exhibit E to Wolinsky Dec.# 7 Exhibit F to Wolinsky Dec.# 8 Exhibit G to Wolinsky Dec.# 9 Exhibit H to Wolinsky Dec.# 10 Proposed Order # 11 Proof of Service)(Cervantez, Eve) (Entered: 07/24/2002)
240 Memorandum in Opposition re 234 filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (mcl, ) DUPLICATE ENTRY − see above #239. (Entered: 07/25/2002)
241 DECLARATION of Sid Wolinsky in Support re 240 filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 240 ) (mcl, ) DUPLICATE ENTRY − see above #239. (Entered: 07/25/2002)
Received Order denying defendants' motion to stay discovery re 234 by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (mcl, ) (Entered: 07/25/2002)
242 CERTIFICATE OF SERVICE by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley re 240 , 241 and proposed Order. DUPLICATE ENTRY − see above #239. (mcl, ) (Entered: 07/25/2002)
243 Reply to Opposition re 234 State Defendants' Reply In Support of Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal filed by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 07/26/2002)
244 DECLARATION in Support re 234 Reply Declaration of Teresa L. Stinson in Support of State Defendants' Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit State Defs Supp. Status Conf Stat.; Exhibits A−D)(Related document(s) 234 ) (Stinson, Teresa) (Entered: 07/26/2002)
245 Proposed Order Granting Defendants' Motion to Stay Discovery Pending Resolution of Ninth Circuit Appeal by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 07/26/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 27 of 42

07/26/2002 07/29/2002
07/31/2002
08/01/2002 08/06/2002 08/16/2002
08/22/2002
09/05/2002 09/06/2002 09/09/2002 09/10/2002 09/13/2002 09/18/2002 09/19/2002 10/16/2002
10/16/2002
10/16/2002

247 TRANSCRIPT for dates 6/7/2002 ; C/R : Diane Skillman. (mcl, ) (Entered: 07/30/2002)
246 Request for Judicial Notice re 234 of Transcript of June 7, 2002 Status Conference filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 234 ) (Stinson, Teresa) (Entered: 07/29/2002)
249 Minute Entry: Discovery Hearing held on 7/31/2002 before Magistrate Judge Edward M. Chen. Defendant's motion is denied without prejudice. Defendant is ordered to produce deponent for deposition by 8/9/02. (Court Reporter NA. Tape No. 02−38 &02−39) (Fong, Betty) (Entered: 08/12/2002)
248 ORDER by Magistrate Judge Edward M. Chen denying without prejudice Defendants' Motion to Stay Discovery Pending Ninth Circuit Appeal 234 (emclc1) (Entered: 08/01/2002)
Certified and transmitted Record on Appeal to US Court of Appeals re appeal 198 , 196 (mcl, ) (Entered: 08/06/2002)
250 Minute Entry: Further Settlement Conference held on 8/15/2002 before Magistrate Judge Joseph C. Spero. Case did not settle. Further Settlement Conference set for 1/14/2003, at 11:00 a.m. Updated Settlement Conference Statements due no later than 1/7/2003. (jcssec) (Entered: 08/16/2002)
251 NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE. Further Settlement Conference set for 01/14/2003 at 11:00 a.m. Updated settlement conference statements due by 01/07/2003. Signed by Magistrate Judge Joseph C. Spero on 08/22/2002. (jcssec) (Entered: 08/22/2002)
252 NOTICE Plaintiffs' Request for Status Conference by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 09/05/2002)
253 NOTICE Defendants' Response to Plaintiffs' Request for Status Conference by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 09/06/2002)
255 Letter dated 9/5/2002 from Sid Wolinsky to Judge Breyer requesting a status conference. (mcl, ) (Entered: 09/12/2002)
254 NOTICE Request for Early Status Conference by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 09/10/2002)
256 NOTICE of Unavailability of Counsel by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 09/13/2002)
257 Minute Entry: Further Case Management Conference held on 9/18/2002 before Charles R. Breyer. (Court Reporter Sahar McVickar.) (be, ) (Entered: 09/19/2002)
Set/Reset Hearings: Motion Hearing set for 11/15/2002 10:00 AM. (mcl, ) (Entered: 09/23/2002)
258 MOTION for Summary Judgment Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities In Support filed by California Department of Education, California State Board of Education, Delaine Eastin. Motion Hearing set for 11/15/2002 10:00 AM. (Press, Douglas) (Entered: 10/16/2002)
259 DECLARATION in Support re 258 Angela Hawkins In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 258 ) (Press, Douglas) (Entered: 10/16/2002)
260 DECLARATION in Support re 258 Alfred Manaster In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 258 ) (Press, Douglas)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 28 of 42

10/16/2002 10/16/2002
10/16/2002 10/16/2002 10/16/2002 10/16/2002
10/23/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002

(Entered: 10/16/2002)
261 DECLARATION in Support re 258 Douglas Carnine In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Related document(s) 258 ) (Press, Douglas) (Entered: 10/16/2002)
262 DECLARATION in Support re 258 Douglas Press In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Appellees' Petition for Rehearing &Suggestion for Rehearing En Banc# 2 Exhibit Appellees' Brief# 3 Exhibit Reporter's Trancript of Proceedings# 4 Exhibit Class Action−Supp. Complaint for Violation of Civ Rights &Discrimination Against Persons W/ Disabilities# 5 Exhibit CAHSEE Yr 3 Evaluation Rpt)(Related document(s) 258 ) (Press, Douglas) (Entered: 10/16/2002)
263 DECLARATION in Support re 258 Niels Michelsen In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Vita)(Related document(s) 258 ) (Press, Douglas) (Entered: 10/16/2002)
264 DECLARATION in Support re 258 Louisa Moats In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Vita)(Related document(s) 258 ) (Press, Douglas) (Entered: 10/16/2002)
265 DECLARATION in Support re 258 S.E. Phillips In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Vita)(Related document(s) 258 ) (Press, Douglas) (Entered: 10/16/2002)
266 DECLARATION in Support re 258 Deborah Franklin In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Item 31 CAHSEE re Approval of Reg; Final Min; Item 31 Oct 2001 Agenda; Constructs for Math; Reading/Writing Constructs for CAHSEE; CAHSEE Lang. Arts Constructs# 2 Exhibit Item #14 Oct 2002 Agenda; Second 15−Day Changes to Prop. Regs re CAHSEE)(Related document(s) 258 ) (Press, Douglas) (Entered: 10/16/2002)
267 ORDER DENYING PLAINTIFFS' APPLICATION FOR SINGLE DEPOSITION OF DESIGNEE. Signed by Magistrate Judge Edward M. Chen on October 23, 2002. (emcsec, ) (Entered: 10/23/2002)
268 Memorandum in Opposition re 258 DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
269 AFFIDAVIT in Opposition re 258 DECLARATION OF KRISTA SMILEY IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
270 AFFIDAVIT in Opposition re 258 DECLARATION OF LOUISE DUTKA IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
271 AFFIDAVIT in Opposition re 258 DECLARATION OF ANN MCDONALD−CACHO IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
272 AFFIDAVIT in Opposition re 258 DECLARATION OF FRED W. LOPEZ IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 29 of 42

10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002
10/30/2002

(Entered: 10/30/2002)
273 AFFIDAVIT in Opposition re 258 DECLARATION OF LAURIE J. LOWE−LAU IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
274 AFFIDAVIT in Opposition re 258 DECLARATION OF SUSAN LYONS IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
275 AFFIDAVIT in Opposition re 258 DECLARATION OF KAREN BRUNO IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
276 AFFIDAVIT in Opposition re 258 DECLARATION OF MONIQUE CHAPMAN IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
277 AFFIDAVIT in Opposition re 258 DECLARATION OF MARCY TIFFANY IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
278 AFFIDAVIT in Opposition re 258 DECLARATION OF JOE REID IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
279 AFFIDAVIT in Opposition re 258 DECLARATION OF KURT F. GEISINGER, PhD IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C)(Kasnitz, Melissa) (Entered: 10/30/2002)
280 AFFIDAVIT in Opposition re 258 DECLARATION OF DR. SUSAN VOGEL IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 10/30/2002)
281 AFFIDAVIT in Opposition re 258 DECLARATION OF MELISSA W. KASNITZ IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A)(Kasnitz, Melissa) (Entered: 10/30/2002)
282 AFFIDAVIT in Opposition re 258 DECLARATION OF ALISON M. AUBREJUAN IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 # 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q)(Kasnitz, Melissa) (Entered: 10/30/2002)
283 AFFIDAVIT in Opposition re 258 DECLARATION OF SUSAN PRIOR IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Juleus Chapman, Learning Disabilities

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 30 of 42

10/30/2002 11/06/2002
11/06/2002 11/06/2002 11/06/2002 11/11/2002 11/18/2002 11/18/2002 11/20/2002 11/20/2002
11/21/2002

Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M)(Kasnitz, Melissa) (Entered: 10/30/2002)
284 AFFIDAVIT in Opposition re 258 PLAINTIFFS OBJECTIONS TO EVIDENCE FILED IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 10/30/2002)
285 DECLARATION in Support re 258 Reply Declaration of Douglas M. Press In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Standard Agreement 9234; Attach A2 re Evaluation of CAHSEE Contract Amendment 6/15/02# 2 Exhibit CA State Bd of Educ Item 7; Mar. 02 Agenda; Supplemental Memo 02/22/02; AB 1609 Study# 3 Exhibit Facts About CAHSEE; Accommodations/Modifications for the CAHSEE# 4 Exhibit Standards &Assessment Update 9/30/02# 5 Exhibit Standards &Assessment Update 10/31/02# 6 Exhibit Ltr to SWolinky dtd 9/12/02; The Gram − Important Notice to Parents...; Fax to SWolinky 9/13/02# 7 Exhibit Fed Register − Part 2 Dept of Educ − 34 CFR Part 200 Title I# 8 Exhibit The Gram − Important Notice to Parents of Children with IEP or Section 504 Plans; Learning Disabilities Assoc of CA Home Page# 9 Exhibit CAHSEE − English Lang. Arts Released Test Questions 2002# 10 Exhibit CAHSEE − Mathematics Released Test Questions 2002)(Related document(s) 258 ) (Stinson, Teresa) Modified on 12/2/2002 (rcs). EXHIBIT 10 EXPUNGED PURSUANT TO COURT'S ORDER OF 11/20/02. (Entered: 11/06/2002)
286 OBJECTIONS to Plaintiff's Evidence re Defendants' Motion for Summary Judgment. (Stinson, Teresa) (Entered: 11/06/2002)
287 Reply Memorandum to Motion re 258 State Defendants' Reply to Opposition to Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 11/06/2002)
288 OBJECTIONS to Defendants' Response to Plaintiffs' Alleged Facts. (Press, Douglas) (Entered: 11/06/2002)
289 AFFIDAVIT in Opposition re 258 PLAINTIFFS REPLY TO DEFENDANTS OBJECTIONS TO EVIDENCE filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 11/11/2002)
290 Minute Entry: Motion Hearing held on 11/15/2002 before Charles R. Breyer. (Court Reporter Debra Pas.) (be, ) (Entered: 11/18/2002)
Set/Reset Hearings: Case Management Conference set for 12/20/2002 at 08:30 AM. (be, ) (Entered: 11/18/2002)
291 Letter dated 11/19/2002 from Melissa W. Kasnitz to Ms. Catterson re petition for rehearing. (mcl, ) (Entered: 11/21/2002)
293 ORDER by Judge Breyer : that the document currently on file as Exhibit 10 to Docket No. 285, Reply Declaration of Douglas M. Press in support of motion for summary judgment, shall be expunged from the court's paper files and from the electronic filing system. Plaintiffs shall file within three days of the issuance of this Order an amended declaration identical in all respects to the expugned declaration but omitting pages 28, 29 and 30.Signed by Judge Charles R. Breyer on 11/19/2002. (mcl, ) (Entered: 11/25/2002)
292 DECLARATION in Support re 258 Reply Declaration of Douglas M. Press In Support of Motion for Summary Judgment filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 Exhibit Standard Agreement 9234; Attach A2 re Evaluation of CAHSEE Contract Amendment 6/15/02# 2 Exhibit CA State Bd of Educ Item 7; Mar. 02 Agenda; Supplemental Memo 02/22/02; AB 1609 Study# 3 Exhibit Facts About CAHSEE;

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 31 of 42

12/13/2002 12/13/2002 12/17/2002 12/18/2002 12/23/2002 12/23/2002 12/23/2002
12/23/2002
12/23/2002 12/23/2002 12/23/2002

Accommodations/Modifications for the CAHSEE# 4 Exhibit Standards &Assessment Update 9/30/02# 5 Exhibit Standards &Assessment Update 10/31/02# 6 Exhibit Ltr to SWolinsky dtd 9/12/02; The Gram − Important Notice to Parents...; Fax to SWolinsky 9/13/02# 7 Exhibit Fed Register − Part 2 Dept of Educ − 34 CFR Part 200 Title I# 8 Exhibit The Gram − Important Notice to Parents of Children with IEP or Section 504 Plans; Learning Disabilities Assoc of CA Home Page# 9 Exhibit CAHSEE − English Lang. Arts Released Test Questions 2002# 10 Exhibit CAHSEE − Mathematics Released Test Questions 2002)(Related document(s) 258 ) (Stinson, Teresa) (Entered: 11/21/2002)
294 JOINT CASE MANAGEMENT STATEMENT FOR 12/20/02 STATUS CONFERENCE filed by California Department of Education, California State Board of Education, Delaine Eastin. (Attachments: # 1 # 2)(Press, Douglas) (Entered: 12/13/2002)
295 Letter dated 12/12/2002 from Sid Wolinsky re: rescheduling case management conference. (vlh, ) (Entered: 12/16/2002)
296 Proposed Order re 258 [Proposed] Order Granting Defendants' Motion for Summary Judgment by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 12/17/2002)
297 TRANSCRIPT for dates 11/15/2002. (vlh, ) (Entered: 12/19/2002)
298 ORDER directing parties to submit written comment on the import of the amended memorandum issued by the Ninth Circuit on December 18, 2002. Signed by Judge Charles R. Breyer on 12/23/02. (crblc2, ) (Entered: 12/23/2002)
299 CLERK'S NOTICE VACATING FURTHER SETTLEMENT CONFERENCE. Further Settlement Conference previously set for January 14, 2003, at 11:00 a.m., has been VACATED. Counsel to contact Judge Spero's chambers to schedule a Further Settlement Conference after decision on pending motion for summary judgment.(jcssec) (Entered: 12/23/2002)
300 Second MOTION to Amend/Correct PLAINTIFFS NOTICE OF MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/31/2003 10:00 AM. (Kasnitz, Melissa) (Entered: 12/23/2002)
301 DECLARATION in Support re 300 DECLARATION OF ALISON AUBREJUAN IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 EXHIBIT A PROPOSED AMENDED COMPLAIN# 2 EXHIBIT B − HUMRRO EXCERPTS# 3 EXHIBIT C AMENDED NINTH CIRCUIT MEMORANDUM)(Related document(s) 300 ) (Kasnitz, Melissa) (Entered: 12/23/2002)
302 DECLARATION in Support re 300 DECLARATION OF MELODY AREVALO IN SUPPORT OF PLAINTIFFS? MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 300 ) (Kasnitz, Melissa) (Entered: 12/23/2002)
303 DECLARATION in Support re 300 DECLARATION OF KAREN BRUNO IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 300 ) (Kasnitz, Melissa) (Entered: 12/23/2002)
304 DECLARATION in Support re 300 DECLARATION OF ANN MCDONALD−CACHO IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 300 ) (Kasnitz, Melissa) (Entered: 12/23/2002)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 32 of 42

12/23/2002 12/23/2002 12/23/2002 12/23/2002 12/23/2002 12/23/2002 12/23/2002 12/26/2002 12/26/2002 12/26/2002 01/03/2003 01/03/2003 01/03/2003

305 DECLARATION in Support re 300 DECLARATION OF LOUISE DUTKA IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 300 ) (Kasnitz, Melissa) (Entered: 12/23/2002)
306 DECLARATION in Support re 300 DECLARATION OF JACQUELINE HARLEY IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Related document(s) 300 ) (Kasnitz, Melissa) (Entered: 12/23/2002)
307 First MOTION to Appoint Guardian ad Litem PETITION AND [PROPOSED] ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR JUSTIN PIERCE filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/31/2003 10:00 AM. (Kasnitz, Melissa) (Entered: 12/23/2002)
308 First MOTION to Appoint Guardian ad Litem PETITION AND [PROPOSED] ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR KYLE STOFFLE filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/31/2003 10:00 AM. (Kasnitz, Melissa) (Entered: 12/23/2002)
309 First MOTION to Appoint Guardian ad Litem PETITION AND [PROPOSED] ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR PHILIP KEEGAN CACHO filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/31/2003 10:00 AM. (Kasnitz, Melissa) (Entered: 12/23/2002)
310 First MOTION to Appoint Guardian ad Litem PETITION AND [PROPOSED] ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR ASHTON THADANI filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/31/2003 10:00 AM. (Kasnitz, Melissa) (Entered: 12/23/2002)
311 First MOTION to Appoint Guardian ad Litem PETITION AND [PROPOSED] ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR ASHLEY HARLEY filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/31/2003 10:00 AM. (Kasnitz, Melissa) (Entered: 12/23/2002)
312 MOTION Plaintiffs' Rule 56(f) Motion and Request for Leave to Supplement Record re 258 Defendants' Motion for Summary Judgment filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. Motion Hearing set for 1/31/2003 10:00 AM. (Kasnitz, Melissa) (Entered: 12/26/2002)
313 DECLARATION in Support re 312 Plaintiffs' Rule 56(f) Motion and Request for Leave to Supplement Record filed by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 312 ) (Kasnitz, Melissa) (Entered: 12/26/2002)
314 Proposed Order re 312 Plaintiffs' Rule 56(f) Motion and Request for Leave to Supplement Record by Juleus Chapman, Learning Disabilities Association of California, Jennifer Lyons, Ryan Smiley. (Kasnitz, Melissa) (Entered: 12/26/2002)
315 ORDER by Judge Charles R. Breyer granting 307 Motion to Appoint guardian ad Litem. (be, ) (Entered: 01/03/2003)
316 ORDER by Judge Charles R. Breyer granting 308 Motion to Appoint guardian ad Litem. (be, ) (Entered: 01/03/2003)
317 ORDER by Judge Charles R. Breyer granting 309 Motion to Appoint guardian ad Litem. (be, ) (Entered: 01/03/2003)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 33 of 42

01/03/2003 01/03/2003 01/06/2003 01/09/2003 01/10/2003
01/10/2003
01/10/2003
01/17/2003 01/17/2003

318 ORDER by Judge Charles R. Breyer granting 310 Motion to Appoint guardian ad Litem. (be, ) (Entered: 01/03/2003)
319 ORDER by Judge Charles R. Breyer granting 311 Motion to Appoint guardian ad Litem. (be, ) (Entered: 01/03/2003)
320 USCA MANDATE re appeal 198 , 196 : the judgment of the District Court is reversed in part and remanded (mcl, ) (Entered: 01/08/2003)
321 Letter from Clerk spreading the mandate. (mcl, ) (Entered: 01/09/2003)
322 Memorandum in Opposition re 312 Defendants' Opposition to Plaintiffs' Rule 56(f) Motion filed by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 01/10/2003)
323 AFFIDAVIT in Opposition re 312 Declaration of Douglas M. Press in Support of Defendants' Opposition to Plaintiffs' Rule 56(f) Motion filed by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 01/10/2003)
324 Memorandum in Opposition re 300 Defendants' Opposition to Plaintiffs' Motion to Amend filed by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 01/10/2003)
325 Reply to Opposition to Motion for Leave to File Second Amended Complaint filed by Juleus Chapman. (Kasnitz, Melissa) (Entered: 01/17/2003)
326 *** FILED IN ERROR. PLEASE SEE DOCKET # 327 ***

01/17/2003 01/21/2003 01/21/2003
01/22/2003 01/22/2003 01/22/2003 01/24/2003 01/31/2003 01/31/2003 02/12/2003

Reply to Opposition to Rule 56 filed by Juleus Chapman. (Kasnitz, Melissa) Modified on 1/22/2003 (bfr, ). Modified on 1/23/2003 (mcl, ). (Entered: 01/17/2003)
327 DECLARATION in Support re 326 Declaration of Sid Wolinsky in Support of Rule 56 reply filed by Juleus Chapman. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 326 ) (Kasnitz, Melissa) (Entered: 01/17/2003)
328 Reply to Opposition to Rule 56 Motion filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/21/2003)
329 CASE MANAGEMENT STATEMENT PLAINTIFFS? STATUS CONFERENCE STATEMENT AND COMMENTS ON NINTH CIRCUIT AMENDED MEMORANDUM filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 01/21/2003)
330 STATUS REPORT Defendants' Comments on Amended Memorandum Issued by Ninth Circuit Court of Appeals by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/22/2003)
331 Proposed Order re 258 [Amended Proposed]Order Granting Defendants' Motion for Summary Judgment by California Department of Education, California State Board of Education, Delaine Eastin. (Stinson, Teresa) (Entered: 01/22/2003)
332 Proposed Order re 312 [Proposed] Order Denying Plaintiffs' Rule 56(f) Motion by California Department of Education, California State Board of Education, Delaine Eastin. (Press, Douglas) (Entered: 01/22/2003)
333 Minute Entry: Status Conference held on 1/24/2003 before Charles R. Breyer. (Court Reporter Rosita Flores.) (be, ) (Entered: 01/27/2003)
334 Appeal Record Returned re appeal 196 (mcl, ) (Entered: 02/03/2003)
335 Minute Entry: Motion Hearing held on 1/31/2003 before Charles R. Breyer. (Court Reporter Sahar McVickar.) (be, ) (Entered: 02/11/2003)
336 Corrected Minute Entry: Motion Hearing held on 1/31/2003 before Charles R. Breyer. (Court Reporter Sahar McVickar.) (be, ) (Entered: 02/13/2003)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 34 of 42

02/18/2003 02/19/2003
02/20/2003 02/20/2003 02/25/2003 03/13/2003 03/19/2003 04/01/2003 04/10/2003 07/10/2003 08/08/2003 08/08/2003

337 AMENDED COMPLAINT SECOND AMENDED COMPLAINT against all defendants. Filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 02/18/2003)
338 DECLARATION in Opposition re 312 Declaration of Sid Wolinsky Submitting Supplemental Evidence Pursuant to Rule 56(f) in Opposition to Defendants' Motion for Summary Judgement filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit E# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z# 27 Exhibit AA# 28 Exhibit BB# 29 Exhibit CC# 30 Exhibit DD)(Related document(s) 312 ) (Kasnitz, Melissa) (Entered: 02/19/2003)
339 NOTICE re 312 Manual Filing by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 02/20/2003)
340 DECLARATION of Alison Aubrejuan submitting supplemental evidence pursuant to Rule 56(f) in Opposition re 258 motion for summary judgment filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Related document(s) 258 ) (mcl, ) (Entered: 02/20/2003)
341 OBJECTIONS to Defendants' Objection and Response to Plaintiffs' Submission of Supplemental Evidence In Opposition to Defendants' Motion for Summary Judgment. (Attachments: # 1 Exhibit Order: Motion for Preliminary Injunction Denied)(Stinson, Teresa) (Entered: 02/25/2003)
342 MEMORANDUM AND ORDER dismissing selected claims as unripe and ordering further briefing with respect to other claims. Signed by Judge Charles R. Breyer on 3/12/03. (crblc2, ) Additional attachment(s) added on 3/13/2003 (be, ). (Entered: 03/13/2003)
343 MOTION for Leave to File Motion for Reconsideration and Clarification (Civil L.R. 7−9(b)) filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California. (Kasnitz, Melissa) (Entered: 03/19/2003)
344 ORDER re 343 amending court order dated 3/12/03. Signed by Judge Charles R. Breyer on 3/31/03. (crblc2, ) Additional attachment(s) added on 4/1/2003 (be, ). (Entered: 04/01/2003)
345 ORDER resetting briefing schedule. Signed by Judge Charles R. Breyer on 4/10/03. (crblc2, ) Additional attachment(s) added on 4/11/2003 (be, ). (Entered: 04/10/2003)
346 ORDER directing parties to address in their briefs the impact of the Board of Education's decision to delay the exit exam requirement. Signed by Judge Charles R. Breyer on 7/10/03. (crblc2, ) Additional attachment(s) added on 7/11/2003 (be, ). (Entered: 07/10/2003)
347 Brief re 342 , 346 Defendants' Supplemental Brief Re Dismissal of Claims Involving the Process for Obtaining Waivers of the CAHSEE Requirement filed by California Department of Education, California State Board of Education, Jack O'Connell. (Related document(s) 342 , 346 ) (Stinson, Teresa) (Entered: 08/08/2003)
348 Brief Plaintiffs' Supplemental Brief in Opposition to Defendant's Motion for Summary Judgement filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California,

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 35 of 42

08/08/2003 08/08/2003 08/08/2003 08/08/2003 08/08/2003 08/08/2003 08/08/2003 08/08/2003 08/08/2003 08/08/2003 08/08/2003

Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
349 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Jo Behm filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
350 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Dr. Kay Runyan filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
351 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Dr. Susan Vogel filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
352 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Monique Chapman filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
353 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Janice Cleveland filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
354 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Diane Davis filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
355 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Judy Karnesky filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
356 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Eunice Kramer filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
357 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Bernadette Lau filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
358 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Regina Roczniak filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
359 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Tobie Shapiro filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz,

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 36 of 42

08/08/2003 08/08/2003 08/08/2003 08/22/2003 08/22/2003 08/22/2003 08/22/2003
09/05/2003 09/10/2003 09/18/2003 11/14/2003 11/14/2003 12/01/2003

Melissa) (Entered: 08/08/2003)
360 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by John Graham filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
361 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Patricia Terrell filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
362 DECLARATION in Support of Plaintiffs' Supplemental Brief re: Summary Judgement by Stephen Tollafield filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 08/08/2003)
363 Brief re 348 Plaintiff's Responsive Supplemental Brief in Opposition to Defendant's Motion for Summary Judgement filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Related document(s) 348 ) (Kasnitz, Melissa) (Entered: 08/22/2003)
364 DECLARATION in Support re 363 of Plaintiffs' Responsive Supplemental Brief by Robert Anderson filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Related document(s) 363 ) (Kasnitz, Melissa) (Entered: 08/22/2003)
365 Brief re 342 , 346 DEFENDANTS' RESPONSIVE BRIEF RE CLAIMS INVOLVING THE PROCESS FOR OBTAINING WAIVERS OF THE CAHSEE REQUIREMENT filed by California Department of Education, California State Board of Education, Jack O'Connell. (Related document(s) 342 , 346 ) (Stinson, Teresa) (Entered: 08/22/2003)
366 DECLARATION in Support re 365 DECLARATION OF JUDY PINEGAR RE DISMISSAL OF PLAINTIFFS' CLAIMS INVOLVING THE PROCESS FOR OBTAINING WAIVERS OF THE CAHSEE REQUIREMENT filed by California Department of Education, California State Board of Education, Jack O'Connell. (Attachments: # 1 Exhibit A)(Related document(s) 365 ) (Stinson, Teresa) (Entered: 08/22/2003)
367 ORDER dismissing case for lack of standing. Signed by Judge Charles R. Breyer on 9/5/03. (crblc2) Additional attachment(s) added on 9/8/2003 (be, COURT STAFF). (Entered: 09/05/2003)
368 MOTION for Leave to File Motion for Reconsideration (Civil L.R. 7−9(a)) filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 09/10/2003)
369 MOTION for Attorney Fees Motion for Attorney's Fees (CIVIL L. 54−5) filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Entered: 09/18/2003)
370 ORDER by Judge Charles R. Breyer re: motion for reconsideration of attorney's fees. (crblc2) (Entered: 11/14/2003)
Set/Reset Deadlines as to 369 MOTION for Attorney Fees: Responses due by 12/8/2003; Replies due by 12/15/2003. Motion Hearing set for 12/19/2003 10:00 AM. (rcs) (Entered: 11/20/2003)
371 MOTION for Attorney Fees filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 37 of 42

12/01/2003 12/01/2003
12/01/2003 12/01/2003 12/01/2003 12/01/2003 12/01/2003 12/01/2003 12/01/2003 12/01/2003

California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. Motion Hearing set for 12/19/2003 10:00 AM. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
372 DECLARATION in Support INDEX OF DECLARATIONS IN SUPPORT OF MOTION FOR REASONABLE ATTORNEYS FEES filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
373 DECLARATION in Support DECLARATION OF SID WOLINSKY IN SUPPORT OF FEE MOTION TAB 1 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J PART 1# 11 Exhibit J PART 2# 12 Exhibit J PART 3# 13 Exhibit J PART 4# 14 Exhibit J PART 5# 15 Exhibit K# 16 Exhibit L# 17 Exhibit M# 18 Exhibit N# 19 Exhibit O# 20 Exhibit P)(Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
374 DECLARATION in Support DECLARATION OF MORRIS A. RATNER IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 2 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A PART 1# 2 Exhibit A PART 2# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F)(Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
375 DECLARATION in Support DECLARATION OF ANDREA G. ASARO IN SUPPORT OF PLAINTIFFS' FEE MOTION TAB 3 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
376 DECLARATION in Support DECLARATION OF DAVID B. BAUM IN SUPPORT OF PLAINTIFFS' FEE MOTION TAB 4 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
377 DECLARATION in Support DECLARATION OF JO RUPERT BEHM IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 5 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
378 DECLARATION in Support DECLARATION OF LINDA M. DARDARIAN IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 6 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
379 DECLARATION in Support DECLARATION OF LAURIE FERREIRA IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 7 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
380 DECLARATION in Support DECLARATION OF RICHARD M. PEARL IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 8 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
381 DECLARATION in Support DECLARATION OF TODD M. SCHNEIDER IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 9 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 38 of 42

12/01/2003 12/01/2003 12/01/2003 12/01/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/15/2003 12/19/2003 01/30/2004

Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
382 DECLARATION in Support DECLARATION OF JAMES C. STURDEVANT IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 10 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
383 DECLARATION in Support DECLARATION OF DR. SUSAN VOGEL IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 11 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
384 DECLARATION in Support DECLARATION OF THOMAS VIALL IN SUPPORT OF PLAINTIFFS FEE MOTION TAB 12 filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
385 Proposed Order GRANTING PLAINTIFFS MOTION FOR REASONABLE ATTORNEYS FEES AND COSTS by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/1/2003) (Entered: 12/01/2003)
386 Memorandum in Opposition re 371 MOTION for Attorney Fees filed by California Department of Education, California State Board of Education, Jack O'Connell. (Stinson, Teresa) (Filed on 12/8/2003) (Entered: 12/08/2003)
387 DECLARATION of Teresa Stinson in Opposition to 386 Plaintiffs' Motion for Attorneys' Fees filed by California Department of Education, California State Board of Education, Jack O'Connell. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Related document(s) 386 ) (Stinson, Teresa) (Filed on 12/8/2003) (Entered: 12/08/2003)
388 DECLARATION of Calvin Wong in Opposition to 386 , 371 Plaintiffs' Motion for Attorneys' Fees filed by California Department of Education, California State Board of Education, Jack O'Connell. (Related document(s) 386 , 371 ) (Stinson, Teresa) (Filed on 12/8/2003) (Entered: 12/08/2003)
389 DECLARATION of Douglas Press in Opposition to 386 , 371 Plaintiffs' Motion for Attorneys' Fees filed by California Department of Education, California State Board of Education, Jack O'Connell. (Attachments: # 1)(Related document(s) 386 , 371 ) (Press, Douglas) (Filed on 12/8/2003) (Entered: 12/08/2003)
390 NOTICE of Errata Re Exhibits of Teresa Stinson submitted in Opposition to 386 , 371 Plaintiffs' Motion for Attorneys' Fees (Errata) filed by California Department of Education, California State Board of Education, Jack O'Connell. (Attachments: # 1)(Related document(s) 386 , 371 ) (Stinson, Teresa) (Filed on 12/8/2003) Modified on 12/10/2003 (mmt, COURT STAFF). (Entered: 12/08/2003)
391 Reply to Opposition re 371 MOTION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 12/15/2003) (Entered: 12/15/2003)
392 Minute Entry: Motion Hearing held on 12/19/2003 before Charles R. Breyer (Date Filed: 12/19/2003). (Court Reporter Diane Skillman.) (be, COURT STAFF) (Date Filed: 12/19/2003) (Entered: 12/19/2003)
393 Supplemental Brief in Support of Motion for Attorney Fees filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. Motion Hearing set for 2/27/2004 10:00 AM. (Kasnitz, Melissa) (Filed on 1/30/2004) Modified on 2/3/2004 (mmt, COURT

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 39 of 42

01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004

STAFF). (Entered: 01/30/2004)
394 Declaration of Morris A. Ratner in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
395 Declaration of Sid Wolinsky in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
396 Declaration of Melissa Kasnitz in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
397 Declaration of Alison Aubrejuan in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
398 Declaration of Eve Cervantez in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
399 Declaration of Stephen Tollafield in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
400 Declaration of Josh Konecky in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
401 Declaration of Rhoda Benedetti in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit C)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
402 Declaration of Brian Dimmick in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 40 of 42

01/30/2004
01/30/2004
01/30/2004 02/03/2004 02/03/2004 02/03/2004 02/04/2004 02/04/2004 02/10/2004 02/10/2004

AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
403 Declaration of Susan Prior in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
404 Declaration of Andrew Simmons in Support of 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
405 Proposed Order re 393 PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 1/30/2004) (Entered: 01/30/2004)
406 Ex Parte MOTION for Extension of Time to File Response/Reply as to 393 Supplemental MOTION for Attorney Fees filed by California Department of Education, California State Board of Education, Jack O'Connell. Motion Hearing set for 2/27/2004 10:00 AM. (Press, Douglas) (Filed on 2/3/2004) (Entered: 02/03/2004)
407 Proposed Order re 406 Extension of Time to File Response to Plaintiffs' Supplemental Motion for Attorneys' Fees by California Department of Education, California State Board of Education, Jack O'Connell. (Press, Douglas) (Filed on 2/3/2004) (Entered: 02/03/2004)
408 Memorandum in Opposition re 406 Ex Parte MOTION for Extension of Time to File Response/Reply as to 393 Supplemental MOTION for Attorney Fees filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 2/3/2004) (Entered: 02/03/2004)
409 ORDER by Judge Charles R. Breyer granting 406 Motion for Extension of Time to File Response/Reply re 406 Ex Parte MOTION for Extension of Time to File Response/Reply as to 393 Supplemental MOTION for Attorney Fees (be, COURT STAFF) (Filed on 2/4/2004) (Entered: 02/04/2004)
Setting Hearing on Motion 371 MOTION for Attorney Fees: Motion Hearing set for 3/12/2004 10:00 AM. See doc #409 for order(be, COURT STAFF) (Filed on 2/4/2004) (Entered: 02/04/2004)
410 MOTION for Leave to File REPLY BRIEF Re PLAINTIFFS SUPPLEMENTAL FEE MOTION filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 2/10/2004) (Entered: 02/10/2004)
411 Declaration of Alison Aubrejuan in Support of 410 PLAINTIFFS REQUEST TO FILE REPLY BRIEF filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Related document(s) 410 ) (Kasnitz, Melissa) (Filed on 2/10/2004) (Entered: 02/10/2004)

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 41 of 42

02/10/2004 02/12/2004 02/27/2004 02/27/2004 02/27/2004 03/05/2004 03/05/2004 03/05/2004
03/08/2004 03/08/2004
03/15/2004

412 Proposed Order re 410 PLAINTIFFS REQUEST TO FILE REPLY BRIEF by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 2/10/2004) (Entered: 02/10/2004)
413 ORDER granting plaintiffs' request to file reply. Signed by Judge Charles R. Breyer on 2/11/04. (be, COURT STAFF) (Filed on 2/12/2004) (Entered: 02/12/2004)
414 Memorandum in Opposition re 393 Supplemental MOTION for Attorney Fees Defendants' Opposition to Plaintiffs' Supplemental Brief for Attorneys' Fees and Costs filed by California Department of Education, California State Board of Education, Jack O'Connell. (Attachments: # 1 Tables)(Press, Douglas) (Filed on 2/27/2004) (Entered: 02/27/2004)
415 DECLARATION of Calvin Wong in Opposition to 414 Plaintiffs' Supplemental Brief for Attorneys' Fees and Costs filed by California Department of Education, California State Board of Education, Jack O'Connell. (Related document(s) 414 ) (Press, Douglas) (Filed on 2/27/2004) (Entered: 02/27/2004)
416 DECLARATION of Douglas Press in Opposition to 414 Plaintiffs' Supplemental Brief For Attorneys' Fees and Costs filed by California Department of Education, California State Board of Education, Jack O'Connell. (Attachments: # 1 # 2 # 3 # 4 # 5)(Related document(s) 414 ) (Press, Douglas) (Filed on 2/27/2004) (Entered: 02/27/2004)
417 Reply to Opposition re 393 PLAINTIFFS SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 3/5/2004) (Entered: 03/05/2004)
418 Declaration of Morris A. Ratner in Support of 393 PLAINTIFFS MOTION FOR ATTORNEYS FEES filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 3/5/2004) (Entered: 03/05/2004)
419 Declaration of Alison Aubrejuan in Support of 393 Plaintiffs Supplemental Reply Brief in Support of Petition for Reasonable Attorneys Fees filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 3/5/2004) (Entered: 03/05/2004)
420 NOTICE by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley re 419 Declaration in Support, RE EXHIBITS ATTACHED TO SUPPLEMENTAL REPLY DECLARATION OF ALISON AUBREJUAN (Kasnitz, Melissa) (Filed on 3/8/2004) (Entered: 03/08/2004)
421 Declaration of Alison Aubrejuan in Support of 393 AMENDED SUPPLEMENTAL REPLY DECLARATION OF ALISON AUBREJUAN IN SUPPORT OF PLAINTIFFS SUPPLEMENTAL BRIEFING RE PETITION FOR FEES AND COSTS filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Related document(s) 393 ) (Kasnitz, Melissa) (Filed on 3/8/2004) (Entered: 03/08/2004)
422 Minute Entry: Motion Hearing held on 3/12/2004 before Charles R. Breyer (Date Filed: 3/15/2004) re 371 MOTION for Attorney Fees filed by Ryan Smiley, Jennifer Lyons, Learning Disabilities Association of California, Juleus Chapman, Melody Arevalo, Karen Bruno, Ann McDonald−Cacho, Louise Dutka, Jacqueline

Case: 3:01-cv-01780-CRB As of: 04/01/2014 11:07 AM PDT 42 of 42

03/19/2004
03/22/2004
04/07/2004 06/22/2005
06/22/2005 06/23/2005 06/27/2005 07/18/2005 07/27/2005

Harley. (Court Reporter Rosita Flores.) (be, COURT STAFF) (Date Filed: 3/15/2004) (Entered: 03/15/2004)
423 AFFIDAVIT in Opposition re 393 Supplemental MOTION for Attorney Fees Declaration of Douglas M. Press in Response to Plaintiffs' Additional Submission re Attorneys' Fees filed by California Department of Education, California State Board of Education, Jack O'Connell. (Press, Douglas) (Filed on 3/19/2004) (Entered: 03/19/2004)
424 Declaration of Alison Aubrejuan in Support of Plaintiffs Supplemental Fee Briefing and in Response to the March 19 2004 Declaration of Douglas Press filed by Melody Arevalo, Karen Bruno, Juleus Chapman, Louise Dutka, Jacqueline Harley, Learning Disabilities Association of California, Jennifer Lyons, Ann McDonald−Cacho, Ryan Smiley. (Kasnitz, Melissa) (Filed on 3/22/2004) (Entered: 03/22/2004)
425 ORDER by Judge Charles R. Breyer re: 369 371 Motion for Attorneys' Fees (crblc2, COURT STAFF) (Filed on 4/7/2004) (Entered: 04/07/2004)
426 Minute Entry: Telephonic Scheduling Conference held before Magistrate Judge Joseph C. Spero re: set date for a further settlement conference. Parties shall lodge mediation statements by Monday, 7/20/5 by Noon. Further settlement conference set for 7/26/5 at 9:30 a.m. Court to prepare Order.(Tape #Not Reported.) (klh, COURT STAFF) (Date Filed: 6/22/2005) (Entered: 06/22/2005)
Set Deadlines/Hearings: Settlement Conference set for 7/26/2005 09:30 AM. (mcl, COURT STAFF) (Entered: 06/23/2005)
427 NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE. Settlement Conference set for 7/26/2005 at 9:30 AM. Signed by Judge Joseph C. Spero on 6/23/5. (klh, COURT STAFF) (Filed on 6/23/2005) (Entered: 06/23/2005)
428 AMENDED NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE for 7/26/2005, at 9:30 a.m. Signed by Magistrate Judge Joseph C. Spero on 6/27/2005. (jcssec, COURT STAFF) (Filed on 6/27/2005) (Entered: 06/27/2005)
429 NOTICE of Change In Counsel by Mary Bondy Reiten (Reiten, Mary) (Filed on 7/18/2005) (Entered: 07/18/2005)
430 Minute Entry: A Further Settlement Conference was held on 7/26/2005. Counsel are to draft a potential settlement document. Defendants' first draft is due 8/1/2005; Plaintiffs' comments and responses are due 8/3/2005. Copies of all documents are to be provided to Magistrate Judge Spero. Counsel shall contact his Chambers to arrange for a follow−up telephonic settlement conference. (jcssec, COURT STAFF) (Date Filed: 7/27/2005) (Entered: 07/27/2005)

 
 Smiley v. Cal. Dep't of Educ., 45 Fed. Appx. 780 United States Court of Appeals for the Ninth Circuit August 14, 2002, Argued and Submitted, San Francisco, California ; September 4, 2002, Filed
No. 02-15552, No. 02-15553 Reporter: 45 Fed. Appx. 780 | 2002 U.S. App. LEXIS 18466
RYAN SMILEY, by his guardian ad litem Krista Smiley; JENNIFER LYONS, by her guardian ad litem Susan Lyons, on behalf of themselves and all others similarly situated; LEARNING DISABILITIES ASSOCIATION OF CALIFORNIA; JULEUS CHAPMAN, by his guardian ad litem Monique Chapman, Plaintiffs-Appellees,
v.
CALIFORNIA DEPARTMENT OF EDUCATION; DELAINE EASTIN, Superintendent of Public Education; CALIFORNIA STATE BOARD OF EDUCATION, Defendants-Appellants, and FREMONT UNIFIED SCHOOL DISTRICT; SHARON JONES, Superintendent of Fremont Unified School District, Defendants. RYAN SMILEY, by his guardian ad litem Krista Smiley; JENNIFER LYONS, by her guardian ad litem Susan Lyons, on behalf of themselves and all others similarly situated; LEARNING DISABILITIES ASSOCIATION OF CALIFORNIA; JULEUS CHAPMAN, by his guardian ad litem Monique Chapman, Plaintiffs-Appellees, v. CALIFORNIA DEPARTMENT OF EDUCATION; DELAINE EASTIN, Superintendent of Public Education; CALIFORNIA STATE BOARD OF EDUCATION, Defendants-Appellants, and FREMONT UNIFIED SCHOOL DISTRICT; SHARON JONES, Superintendent of Fremont Unified School District, Defendants.
Appeal from the United States District Court for the Northern District of California. D.C. No. CV-0101780-CRB, D.C. No. CV-01-01780-CRB.
Charles R. Breyer, District Judge, Presiding.
Counsel: For RYAN SMILEY, JENNIFER LYONS, Learning Disabilities Association of California, JULEUS CHAPMAN, Plaintiffs-Appellees (02-15552, 02-15553): Sidney M. Wolinsky, Esq., Melissa W. Kasnitz, Esq., DISABILITY RIGHTS ADVOCATES, Oakland, CA.
For RYAN SMILEY, Plaintiff-Appellee (02-15552, 02-15553): Elizabeth J. Cabraser, Esq., LIEFF, CABRASER, HEIMANN AND BERSTEIN LLP, Eve H. Cervantez, Esq., LIEFF, CABRASER, HEIMANN AND BERNSTEIN, LLP, San Francisco, CA.
For JENNIFER LYONS, Learning Disabilities Association of California, JULEUS CHAPMAN, PlaintiffsAppellees (02-15552, 02-15553): Elizabeth Joan Cabraser, Esq., Eve H. Cervantez, LIEFF, CABRASER, HEIMANN & BERNSTEIN, San Francisco, CA.
For California Department of Education, DELAINE EASTIN, California State Board of Education, Defendants-Appellants (02-15552, 02-15553): Michael E. Hersher, Esq., CALIFORNIA STATE DEPARTMENT OF EDUCATION, Sacramento, CA.
For California Department of Education, DELAINE EASTIN, California State Board of Education, Defendants-Appellants (02-15552, 02-15553): Douglas M. Press, Esq., San Francisco, CA.

For California Department of Education, DELAINE EASTIN, California State Board of Education, Defendants-Appellants (02-15552, 02-15553): Teresa L. Stinson, Esq., CALIFORNIA ATTORNEY GENERAL'S OFFICE, San Francisco, CA.
For Fremont Unified School District, Defendant (02-15552, 02-15553): James R. Hawley, Esq., HOGE FENTON JONES AND APPEL, San Jose, CA.
SHARON JONES, Defendant (02-15552, 02-15553): No Appearance.
Judges: Before: HALL, McKEOWN, and CLIFTON, Circuit Judges.
Opinion
MEMORANDUM *
Before: HALL, McKEOWN, and CLIFTON, Circuit Judges.
With respect to paragraphs 1 and 2 of the district court's preliminary injunction order dated February 21, 2002, the State Defendants claim that those provisions, which permit all members of the plaintiff class to take the California High School Exit Examination ("CAHSEE") with the necessary accommodations and modifications, are already in effect. To avoid any ambiguity on this point, we therefore decline to modify paragraphs 1 and 2 of the district court's order.
The challenge to the waiver provisions of the CAHSEE is not currently ripe for adjudication as to claims relating to potential future harms caused by the possible denial of a waiver. See Texas v. United States, 523 U.S. 296, 300, 140 L. Ed. 2d 406, 118 S. Ct. 1257 (1998) (noting that the ripeness doctrine is triggered when the claims at issue relate to "contingent future events that may not occur as anticipated, or indeed may not occur at all" (internal quotation marks omitted)).
The challenge is ripe as to the claim that the uncertainty of the waiver process burdens students' rights to participate in the examination by forcing them to choose between forgoing the use of modifications or risking the denial of a waiver. Because they have alleged a real and immediate injury to all learning disabled students whose IEPs indicate the use of modifications, the plaintiffs have standing to raise this claim. See City of Los Angeles v. Lyons, 461 U.S. 95, 102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983).
However, though the right to participate in statewide testing requires that participation must be meaningful, see 20 U.S.C. § 1412(a)(17)(A); H.R. Rep. 105-95, 1997 U.S.C.C.A.N. at 98-99, it does not require us to prohibit the state from exercising its traditional authority to set diploma requirements. Consequently, the plaintiffs have not met their burden to demonstrate probable success on the merits or a sufficiently serious question going to the merits to make the issue a fair ground for litigation. See Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998).
The challenge to the putative failure to establish an alternate assessment process is also insufficiently ripe for adjudication at the present time. See Texas v. United States, 523 U.S. at 300.

Therefore, we REVERSE the district court's order with respect to paragraphs 3-5 and 8 of the preliminary injunction and REMAND with directions to dissolve those portions of the preliminary injunction.
REVERSED in part and REMANDED. Each party is to bear its own costs on appeal.

 
 53 Fed.Appx. 474
United States Court of Appeals,
Ninth Circuit.
Ryan SMILEY, by his guardian ad litem Krista Smiley; Jennifer Lyons, by her guardian ad litem Susan Lyons, on behalf of themselves and all others similarly situated; Learning Disabilities Association of California; Juleus Chapman, by his guardian ad litem Monique Chapman, Plaintiffs-Appellees,
v.
CALIFORNIA DEPARTMENT OF EDUCATION; Delaine Eastin, Superintendent of Public Education; California State Board of Education, Defendants-Appellants,
and
Fremont Unified School District; Sharon Jones, Superintendent of Fremont Unified School District, Defendants.
Nos. 02-15552, 02-15553.D.C. No. CV-01-01780-CRB.
Argued and Submitted Aug. 14, 2002.Decided Dec. 19, 2002.Rehearing and Rehearing En Banc Denied Dec. 19, 2002.
Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding.
Before CYNTHIA HOLCOMB HALL, MCKEOWN, and CLIFTON, Circuit Judges.
Opinion
AMENDED MEMORANDUM*
We recognize that this case presents important and complicated issues for all of the parties and that further proceedings in the district court are inevitable. We are presented with interlocutory review of a preliminary injunction, and the scope of this order relates only to that review and to the terms of the interim relief imposed by the preliminary injunction order.
With respect to paragraphs 1 and 2 of the district court's preliminary injunction order dated February 21, 2002, the State Defendants assure us that those provisions, which permit all members of the plaintiff class to take the California High School Exit Examination (“CAHSEE”) with the necessary accommodations and modifications, are already in effect. To avoid any ambiguity on this point, we therefore decline to modify paragraphs 1 and 2 of the district court's order.
The remainder of the plaintiffs' challenge to the administration of the CAHSEE is not currently ripe for adjudication. The development of the CAHSEE is, as the district court observed, a “highly dynamic

process.” The State Defendants argue with some justification that they need experience with administration of CAHSEE to further develop and refine the test, to decide whether there should be a delay in the date for imposing it as a requirement for a high school diploma, and for working out the waiver process by which students with disabilities may obtain diplomas even if they are unable to satisfy the normal CAHSEE requirement. The awarding of diplomas is what CAHSEE is fundamentally about. Thus, to the extent that the claims allege potential future harms caused by the possible denial of a waiver of CAHSEE requirements or of a diploma, the accommodations claims are not yet ripe. See Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (noting that the ripeness doctrine is triggered when the claims at issue relate to “contingent future events that may not occur as anticipated, or indeed may not occur at all” (internal quotation marks omitted)).
The claims are ripe to the extent that the uncertainty of the waiver process burdens students' rights to participate in the examination by forcing them to choose between forgoing the use of modifications or risking the denial of a waiver. Because they have alleged a real and immediate injury to all learning disabled students whose IEPs indicate the use of modifications, the plaintiffs have standing to raise this aspect of the claim. See City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
However, because the IDEA does not encompass restrictions on the state in the exercise of its traditional authority to set diploma requirements, paragraphs 3-5 and 8 of the injunction are, in their present form, overbroad because they “require more of state officials than is necessary to assure their compliance with federal law.” Clark v. Coye, 60 F.3d 600, 604 (9th Cir.1995).
Plaintiffs' challenge to the putative failure to establish an alternate assessment process is addressed in part by paragraphs 1 and 2 of the preliminary injunction, which remain in effect. Students with disabilities who take CAHSEE will receive results, including those students who take the exam using accommodations or modifications. The balance of Plaintiffs' claim regarding alternative assessment is also insufficiently ripe for adjudication on a statewide basis at the present time. See Texas v. United States, 523 U.S. at 300, 118 S.Ct. 1257.
Therefore, we REVERSE the district court's order with respect to paragraphs 3-5 and 8 of the preliminary injunction and REMAND with directions to dissolve those portions of the preliminary injunction.
REVERSED in part and REMANDED. Each party is to bear its own costs on appeal.
Parallel Citations
2002 WL 31856343 (C.A.9 (Cal.))
Footnotes
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.